A Mechanism for "Statutory Housekeeping": Appellate Courts Working with Congress

By Katzmann, Robert A.; Wheeler, Russell R. | Journal of Appellate Practice and Process, Spring 2007 | Go to article overview

A Mechanism for "Statutory Housekeeping": Appellate Courts Working with Congress


Katzmann, Robert A., Wheeler, Russell R., Journal of Appellate Practice and Process


This year the bipartisan leadership of the House and Senate Judiciary Committees called for the United States Courts of Appeals' widespread participation in a decades-old project to let Congress know about possible technical flaws in statutes. (1) Its chief purpose is not to promote remedial legislation but rather to provide legislators and their bill-drafting staffs information about how appellate courts interpret the legislative product. The project is noteworthy as an approach to the long-standing search for practical ways of alerting Congress to drafting problems in judicial opinions and as an example of legislative-judicial cooperation and communication.

I. SOME BACKGROUND

Over forty years ago, Judge Henry J. Friendly of the Second Circuit, commenting on the importance of statutory law, bemoaned "the problems posed by defective draftsmanship," especially m uncontroverslal legislation. (2) He described "the occasional statute in which the legislature has succeeded in literally saying something it probably did not mean," and noted that "even the best draftsman is likely to have experienced the occasional shock of finding that what he wrote was not at all what he meant." (3) He also gave examples of ambiguous statutory language (4) and attributed these problems to the legislative time crunch, which caused "neglect of the undramatic type of legislative activity" described in his article. (5) Thirty-four years later, another circuit judge, James Buckley of the D.C. Circuit, who had served in the Senate in the 1970s, recalled that, in Congress, "[w]ith time often the enemy, mistakes--problems of grammar, syntax, and punctuation--are made in the drafting of statutes and affect the meaning of legislation." (6)

Judge Friendly's remedy for this problem was a legislative commission along the lines of the "ministry of justice" that Roscoe Pound proposed in 1917 and Benjamin Cardozo proposed four years later (with antecedents running back to early nineteenth century England): a small disinterested body of public and private citizens with legislative expertise to review statutes and call attention to their defects. (7) The 1970s, 1980s, and 1990s saw other proposals for informing Congress about possible defects in statutes, including a "'second look at laws' committee" in Congress; a committee in the judiciary to sift through judicial opinions for references to defects; (8) and two judicial branch proposals that "Congress ... consider a 'checklist' for legislative staff to use in reviewing proposed legislation for technical problems," such as the need for a statute of limitations, definition of key terms, severability, and whether retroactive applicability is intended. (9)

Another way of treating these problems was a practical experiment, designed almost twenty years ago by the Governance Institute, (10) a small Washington, D.C., think tank. Through this project for "statutory housekeeping," (11) in Justice Ruth Bader Ginsburg's apt phrase, courts of appeals identify opinions that point out possible technical problems in statutes and send those opinions to Congress for its information and whatever action it wishes to take.

II. HOW THE PROJECT DEVELOPED

In 1988, the D.C. Circuit--in particular Judge Buckley, Judge Ruth Ginsburg, Chief Judge Patricia Wald, and Judge Abner Mikva--endorsed an inquiry about the fate in Congress of judicial opinions that flag problems in grammar, apparent "glitches," ambiguous terminology, and omission of key details, such as effective dates. (12) They invited Judge Frank Coffin and author Katzmann to analyze what happened in Congress after that court issued statutory decisions with such opinions. Judge Coffin, himself a former legislator, was in 1988 chairman of the United States Judicial Conference's committee that seeks to promote effective judicial-legislative relations. (13) Katzmann was then a Georgetown government and law professor, a Brookings Institution fellow, and president of the Governance Institute. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Mechanism for "Statutory Housekeeping": Appellate Courts Working with Congress
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.