This article was authored by Matthew Lee Wiener, ACUS’s Vice Chairman and Executive Director
Richard Posner once said that he was “always struck as a judge by how often legal disputes arise from errors—not policy choices—in the drafting of statutes and regulations.” Richard A. Posner, The Problematics of Moral and Legal Theory 308 (1999). A generation earlier another distinguished judge-scholar, Henry Friendly, had much the same complaint. Judge Friendly proposed the establishment of a legislative commission to identify technical problems in federal statutes. Several other such reform proposals followed in the ensuing decades.
Only one of them, as far as I know, was ever given effect, and that was the so-called “statutory housekeeping program” conceived of in the late 1980s by now-Chief Judge Robert Katzmann of the Court of Appeals for the Second Circuit, then a law professor at Georgetown and the president of the Governance Institute. Now in its third decade, the program calls on individual federal circuits to transmit to Congress judicial opinions identifying potential technical problems in federal statutes—ambiguities, omissions, grammatical errors, and the like. The main objective of the program isn’t to prompt legislative corrections—although that sometimes happens—but rather to help Congress improve its drafting in future statutes.
During his keynote remarks at an ACUS plenary session in 2012 and then later in print, Chief Judge Katzmann, an ACUS senior fellow, recommended that ACUS adopt a similar statutory housekeeping program for the administrate state. Several other federal judges affiliated with ACUS, including Judge Stephen Williams, seconded Judge Katzmann’s recommendation.
ACUS has now acted on their recommendation by establishing, on a pilot basis, what it calls the Statutory Review Program. Relying largely on input from agency general counsels, the ACUS staff identifies, and then transmits to House and Senate offices of legislative counsel, judicial and agency adjudicative decisions that address technical errors in statutory provisions involving administrative procedure. Details can be found by visiting the link above.
This program is but one of several initiatives afoot at ACUS assisting Congress in drafting administrative-law provisions of federal statutes. Others include ACUS’s forthcoming guide on statutory provisions governing judicial review of administrative action.