Vol. 39, Number 8 — August 2007

Feedback Requested on Technical Aspects of Laws

The humor in a well-known joke about a panda hangs on a misplaced comma, which effectively changes the nature of the animal from vegetarian to gun enthusiast in the line, “eats, shoots & leaves.” Unfortunately, what is funny in a punch line may cause serious problems in a piece of legislation. Misplaced commas and other punctuation errors, ambiguous terms and phrases, the omission of effective dates or jurisdictional authority, may play havoc with how the courts interpret a statute.

To improve communication between the judicial and legislative branches on questions of drafting, a “statutory housekeeping” project has been reinvigorated, whereby courts of appeals identify opinions that point out possible technical problems in statutes and send those opinions to Congress for its information and for whatever action it wishes to take. In July 2007, Judge D. Brock Hornby (D. Me.), chair of the Judicial Conference Judicial Branch Committee, committee member Judge Robert A. Katzmann (2nd Cir.), and Administrative Office Director James C. Duff, wrote to all judges and clerks of court of the U.S. courts of appeals urging their participation in the project.

In 1995, the Judicial Conference in its Long Range Plan for the Federal Courts, endorsed the project. Participation in the project began well, but has declined.

In the last few months, the chair of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), with ranking member Senator Arlen Specter (R-PA), and House Judiciary Committee chair Representative John Conyers (D-MI), with ranking minority member Representative Lamar Smith (R-TX), urged the project’s revitalization. To realize that objective, Russell Wheeler, president of the Governance Institute, a D.C. organization which originally designed the project, worked with the Judiciary Committees and the legislative counsels as well as the Judicial Branch Committee.

“For our office, which is responsible for drafting legislation,” said James Fransen, head of the Senate Office of the Legislative Counsel, “it is useful for us if we can identify ways we can improve clarity and eliminate ambiguity.” House Legislative Counsel M. Pope Barrow added, “The opinions of judges would be especially useful if they can identify persistent patterns in drafting errors.”

Courts of appeals either ask the clerk of court or staff attorney to identify appropriate opinions, or leave the task to each three-judge panel. The clerk of court sends the selected opinion without comment, in the nature of an executive communication, to the Speaker of the House and the President Pro Tempore of the Senate. The House and Senate Offices of Legislative Counsel have asked to receive the opinions by e-mail. They analyze the drafting issues identified in each opinion, and send the opinion with an explanatory note to the committee with jurisdiction over its subject matter.

Katzmann’s involvement in this project actually predates his Second Circuit tenure. As president of the Governance Institute at the project’s inception, he worked with Judge Frank M. Coffin (then chair of the Judicial Branch Committee) in designing a pilot effort. In a 1997 review of the project, Katzmann wrote, “With knowledge of the courts’ opinions, Congress may respond as it deems appropriate. But as important if not more so, the legislative branch has a better appreciation of how courts interpret its work and the courts have a better sense of how the legislative branch digests its opinions.”

“It is important to recognize that Congress itself seeks the Judiciary’s assistance in encouraging judges to share appellate opinions that bear upon its work,” Director Duff observed.

“By responding to this legislative initiative, courts are partners in interbranch cooperation in ways that promote mutual understanding to the benefit of both branches,” commented Hornby.

Assistant General Counsel Bret Saxe has been designated by the Administrative Office to track the number of opinions sent and consult periodically with the legislative counsels and the appellate courts as to whether the project needs adjustment.