By Jeff Simard. Full text here.
Gluck and Bressman’s recent survey of legislative drafters suggests that judges who interpret and construe statutes are not on the same page as those who draft and revise them. This disconnect seems especially glaring in light of the rise of statute-based law and the increasing impact that judicial statutory interpretation and legislative drafting have on everyday life. The little-known federal “statutory housekeeping” project, a preexisting inter-branch communication program, has the potential to help bridge this judicial-legislative gap. Through the project, United States courts of appeals submit to Congress opinions from decisions discussing technical flaws in statutes.
This Note examines that federal statutory housekeeping project, drawing upon interviews and personal correspondence with key users of the project, in both the legislative and judicial branches, to put together a comprehensive account of how the project operates today. It reflects on the project’s historical foundations and analyzes its current effectiveness in promoting interbranch communication and addressing the problem of technical statutory defects.
This Note argues that while the project has great potential, much of it is untapped. Today, the federal statutory housekeeping project is fairly obscure, enjoys low and uneven judicial participation, and is used narrowly by drafters. This Note suggests possible explanations for those limited rates of participation in the project, including institutional reasons why such interbranch communication may be disfavored. It then describes how the federal statutory housekeeping project is uniquely well-situated to overcome those problems because it is not burdensome to its participants, is engineered to avoid improper or unconstitutional activity, and has already enjoyed some use and support.
This Note concludes that the federal statutory housekeeping project is well-situated to serve as a much more effective and influential tool of interbranch communication if it is expanded and supplemented. It looks to effective state interbranch communication and statutory revision programs for inspiration for improving the federal statutory housekeeping project, in part because these programs’ possible implications for the federal project have largely been unexplored. Drawing upon those state programs, this Note proposes increasing two-way feedback within the program, formalizing the project, and supplementing it with educational programs. This three-part solution would allow the federal statutory housekeeping project to better bridge the gap between the judicial and legislative branches regarding statutory drafting, construction, and interpretation, and would go a long way towards helping the project realize its great untapped potential.