Academic journal article Stanford Law & Policy Review

Drafting Proper Short Bill Titles: Do States Have the Answer?

Academic journal article Stanford Law & Policy Review

Drafting Proper Short Bill Titles: Do States Have the Answer?

Article excerpt

INTRODUCTION

Short bill titles at the federal and state level have historically been used as legal reference points for legislation. Over the years, however, many of these titles have changed their function and now act as much more than referential designations. This has never been more apparent than on the federal level, where many titles have extensive policy implications, are politically and emotionally charged, and thus appear to be used to influence rather than explain what a law does. Many federal bills (and subsequently acts) (1) are now increasingly adorned with titles containing evocative language, seemingly designed to be used for political advantage and serve as benchmarks of governmental accomplishment, however transient either may be. This presents problems for federal titles, as they are not only used as political devices while shepherding a bill through Congress, but many of these titles ultimately end up in the statute book, inscribed as law. The legal aspects of short titles seem to have been lost on many recent Congresses, who unabashedly continue the evocative short bill title pattern. As will be seen below, no effective constraints currently exist for federal short bill titles, but given the current situation, they are sorely needed.

In contrast, many states have short title policies in place for curtailing the practices employed at the federal level. They appear to value the inherently legal aspect of short titles, and discourage lawmakers and others from using such titles as influential devices. This Article will briefly demonstrate how the federal short title situation spiraled out of control. It will also look at some of the policy aspects of current evocative bill titles. The Article then examines the dearth of federal bill drafting policies in relation to short titles by analyzing the House Drafting Manual. Next, and most importantly, the Article examines state bill drafting manuals in order to ascertain whether or not they could provide any assistance or guidance to federal policies regarding short titles. Evidence from these state drafting manuals demonstrates that there is much Congress could learn from such practices.

Though the statute book has historically been immune to the use of overtly politicized language, such is no longer the case for the Federal Code, where overtly politicized language has entered the statute book largely through the short titles of acts. The current short title situation in Congress was not always the case. An examination of some major pieces of legislation throughout American history reveals that many of the nation's most important legislative accomplishments were graced with very bland short titles designed to do little more than summarize the bill's contents. The first-ever session of Congress passed the Judiciary Act of 1789, which constructed the entire federal court system, yet it garnered only a modest title. (2) Additional examples of landmark legislation with simple, descriptive titles include the 1913 Federal Reserve Act; (3) the 1935 Social Security Act; (4) the 1961 Peace Corps Act; (5) the 1964 Civil Rights Act; (6) and the Voting Rights Act of 1965. (7) The above acts are some of the most important and historically controversial pieces of legislation Congress has ever produced. Put simply, they are innocuously titled bills that easily inform lawmakers and the public about what the bill sets out to accomplish.

In contrast, an examination of some noteworthy laws over the past quarter century shows a drastic difference in naming style. Some bills, especially important ones, are cloaked in evocative language, seemingly designed to garner sympathy, support, and political advantage. Many of these titles appear to be crafted to provide cogent policy statements rather than offer information on what the bill entails. Prominent examples from the 1990s are the Judicial Improvements Act of 1990; (8) the Torture Victim Protection Act of 1991; (9) the Brady Handgun Violence Prevention Act; (10) the Religious Freedom Restoration Act of 1993; (11) the Congressional Accountability Act of 1995; (12) the Antiterrorism and Effective Death Penalty Act of 1996; (13) the Personal Responsibility and Work Opportunity Reconciliation Act of 1996; (14) the Small Business Job Protection Act of 1996; (15) the Defense of Marriage Act; (16) and the Pam Lychner Sexual Offender Tracking and identification Act of 1996. …

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