Madison Lecture statutes

New York University Law Review

Volumn 87, Issue 3, 2012, Pages 637-703

  Katzmann, Robert A ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84863600525     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (471)

1. See generally ROBERT A. KATZMANN, REGULATORY BUREAUCRACY: THE FEDERAL TRADE COMMISSION AND ANTITRUST POLICY (1980).
2. See generally ROBERT A. KATZMANN, INSTITUTIONAL DISABILITY: THE SAGA OF TRANSPORTATION POLICY FOR THE DISABLED (1986).
3. hereinafter KATZMANN, INSTITUTIONAL DISABILITY (examining how legislative, administrative, and judicial processes have dealt with problems of mobility for the disabled).
4. Created in 1986, the Governance Institute is a small nonprofit organization in Washington, D.C., concerned with exploring, explaining, and easing problems associated with both the separation and the division of powers in the American federal system. The Institute's focus is on institutional process-a nexus linking law, institutions, and policy. Products of the Governance Institute's program on judicial-legislative relations include.
5. ROBERT A. KATZMANN, COURTS AND CONGRESS (1997) [hereinafter KATZMANN, COURTS AND CONGRESS]; JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY (Robert Katzmann ed 1988) [hereinafter JUDGES AND LEGISLATORS].
6. Frank M. Coffin, Communication Among the Three Branches: Can the Bar Serve as Catalyst?, 75 JUDICATURE 125 (1991).
7. Frank M. Coffin, Robert Akatzmann, Steps Towards Optimal Judicial Workways: Perspectives from the Federal Bench, 59 N.Y.U. ANN. SURV. AM. L. 377 (2003).
8. Robert A. Katzmann Russell R, Wheeler A Mechanism for "Statutory Housekeeping": Appellate Courts Working with Congress, 9. J. APP. PRAC. & PROCESS 131 (2007) [hereinafter Katzmann & Wheeler, A Mechanism for "Statutory Housekeeping"].
9. Robert A. Katzmann. Wheeler, A Primer on Interbranch Relations, 95. GEO. L.J. 1155 (2007). Russell Wheeler is currently the president of the Governance Institute.
10. Katzmann & Wheeler, A Mechanism for "Statutory Housekeeping," supra, at 131.
11. JUDGES LEGISLATORS, supra note 3, at vii.
12. KATZMANN, COURTS AND CONGRESS, supra note 3 (examining "key aspects of the relationship between the courts and Congress," including "the confirmation process, communications, statutory interpretation, and statutory revision").
13. William Eskridge, Jr. estimates that in 2008, two-thirds of the Supreme Court's caseload consisted of pure statutory cases, and just one-fourth consisted of pure constitutional cases. E-mail from Prof.
14. William N. Eskridge, Jr., John A. Garver Prof. of Jurisprudence, Yale Law Sch., to author (Aug. 8, 2011, 10:12 EST) (on file with the New York University Law Review). 21 U.S.C. § 844 (2006).
15. See United States v. Morgan, 412 F. App'x 357, 359-60 (2d Cir. 2011) (rejecting appellant's claim that his purchase of pseudoephedrine for personal consumption did not violate the statute because Congress's purpose, on his argument, was to prevent the manufacture of methamphetamine).
16. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332, 333 (2d Cir. 2005) (holding that expert fees are compensable costs under the statute), rev'd, 548 U.S. 291 (2006).
17. 20 U.S.C. § 1415(i)(3)(B) (2006) (emphasis added).
18. 28 U.S.C. § 2680(b) (2006) (emphasis added).
19. See Raila V. United States, 355 F.3d 118 (2d Cir. 2004) (holding that the plaintiff's claims under the Federal Tort Claims Act were not barred by the statute's postal matter exception).
20. Dolan v. USPS, 546 U.S. 481 (2006) (upholding Raila).
21. 18 U.S.C. § 922 (emphasis added).
22. See United States v. Gayle, 342 F.3d 89, 90 (2d Cir. 2003) (holding that convictions in foreign courts did not satisfy the "convicted in any court" element of the statute (quoting 18 U.S.C. § 922 (2006)); United States v. Small, 544 U.S. 385 (2004) (upholding Gayle).
23. See Statutory Interpretation and the Uses of Legislative History: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. (1990).
24. Interbranch Relations: Hearings Before the Joint Comm. on the Org. of Cong., 103d Cong. 76, 298 (1993) [hereinafter Interbranch Relations].
25. See infra text accompanying notes 165-70 (discussing various theories of congressional intent).
26. See App, B (noting publications on statutory interpretation over the last fifteen years). Lilly Ledbetter Fair Pay Act of 2009.
27. Pub, L. No. 111-2, 123 Stat. 5 (to be codified at 42 U.S.C. § 2000e-5).
28. See, e.g., Gail, Collins, Lilly's Big Day, N.Y. TIMES, Jan. 29, 2009, at A27; Sheryl
29. Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. TIMES (Jan. 30, 2009), http://www.nytimes.com/2009/01/30/us/politics/30ledbetter-web.html.
30. 500 U.S. 618, 667 (2007) (Ginsburg, J., dissenting) ("As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII.").
31. 42 U.S.C. § 2000e-2(a) (2006).
32. 500 U.S. at 618-19.
33. 5 U.S. (1 Cranch) 137 (1803); see
34. MARK TUSHNET, ARGUING Marbury v. Madison (2005) (presenting historical background and analysis of Marbury scholarship).
35. William Michael Treanor, The Story of Marbury v. Madison: Judicial Autonomy and Political Strugglein FEDERAL COURTS STORIES 29-56 (Vicki C.Jackson, Judith, Resnik eds., 2010).
36. Charles O. Jones, A Way of Life and Law, 89 AM. POL. SCI. REV. 1, 8 (1995).
37. See, e.g., Federal Trade Commission Act of 1914, 15 U.S.C. § 45(a)(1) (2006) (establishing requirements designed to "prevent unfair or deceptive acts or practices in or affecting commerce").
38. See, e.g., 42 U.S.C. § 2000e (proscribing discrimination on the basis of race, color, religion, sex, or national origin); Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 (2006) (proscribing discrimination on the basis of disability).
39. See, e.g., Clean Water Act of 1972, 33 U.S.C. § 1362(7) (2006) (prohibiting the discharge of any pollutant into "navigable waters," defined without further elaboration as "the waters of the United States, including the territorial seas").
40. See, e.g., Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 922 (2006) (authorizing members of Congress to file a suit challenging the constitutionality of the Act and providing for challenge to be heard by a special three-judge federal court with direct appeal to the Supreme Court); see generally.
41. CHARLES R. SHIPAN, DESIGNING JUDICIAL REVIEW 97-121 (1999) (examining legislative provisions for judicial review).
42. See, e.g., 23 U.S.C. § 158 (2006) (directing the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable from States "in which the purchase or public possession. of any alcoholic beverage by a person who is less than twenty-one years of age is lawful").
43. South Dakota v. Dole, 483 U.S. 203, 211-12 (1987) (holding that 23 U.S.C. § 158 was a valid exercise of Congress's spending power).
44. See Robert A. Katzmann, The American Legislative Process as a Signal, 9.
45. J. PUB. POL'Y 287, 292 (1989) ("As a signal of government, legislation affects both the substance and process of policymaking."); see also.
46. Michael Herz, Judicial Textualism Meets Congressional Micromanagement: A Potential Collision in Clear Air Act Interpretation, 16.
47. HARV. ENVTL. L. REV. 175, 180 (1992) (noting Congress's tendency to micromanage environmental agencies through extremely detailed legislation). On the impact of statutes on the administrative state in the twentieth century, see.
48. JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW 419-23 (1950), where the author explains that the "sheer bulk" of legislation and the need for expertise drove the creation of specialized agencies in the years after 1910. See also.
49. JAMES WILLARD HURST, DEALING WITH STATUTES (1982); CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE (1990). Grant Gilmore famously described the "orgy of statute making" in GRANT GILMORE, THE AGES OF AMERICAN LAW 95 (1977).
50. Pub, L. No. 79-404, 60 Stat. 237 (1946) (current version at 5 U.S.C. §§ 500-59 (2006)).
51. Pub, L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12,101-213 (2006)).
52. Pub, L. No. 88-206, 77 Stat. 392 (1963) (current version at 42 U.S.C. §§ 7401-8146 (2006))
53. The Clean Water Act of 1977 was at first called the Federal Water Pollution Control Act Amendments, Pub, L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33 U.S.C. §§ 1251-376 (2006)).
54. 20 U.S.C. § 1681 (2006).
55. Barbara Winslow, The Impact of Title IX, THE GILLER LEHRMAN INST. OF AM. HISTORY, http://www.gilderlehrman.org/history-by-era/seventies/essays/impact-titl e-ix (last visited Apr. 26, 2012) (noting that Title IX is "[o]ne of the great achievements of the women's movement" and that its impact extends beyond sports to higher education, employment, learning environment, math and science, sexual harassment, standardized testing, and technology). For more information on Title IX's impact on education, see generally.
56. KATHERINE HANSON, VIVIAN GUILFOY & SARITA PILLAI, MORE THAN TITLE IX: HOW EQUITY IN EDUCATION HAS SHAPED THE NATION (2009), where the author examines the broader societal changes that followed Title IX and its focus on gender equity in education.
57. WILLIAM N. ESKRIDGE JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION (2010); see also.
58. DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-2002, at 4 (2d ed. 2005) (arguing that whether Congress is unified or divided has made little difference in the incidence of highly publicized congressional investigations or important legislation).
59. Forrest Maltzman & Charles R. Shipan, Change, Continuity, and the Evolution of the Law, 52 AM. J. POL. SCI. 252, 252 (2008) (examining the political conditions that influence whether a law comes under review or is changed in subsequent years).
60. 347 U.S. 483 (1954).
61. Pub, L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. § 2000e (2006)).
62. See, e.g., Thompson V. N. Am. Stainless, LP, 131 S. Ct. 863, 870 (2011) (holding that an employee who claims he was terminated because his fianc ée had filed a discrimination charge against their mutual employer may pursue a retaliation claim under Title VII).
63. Jones V. Alfred H. Mayer Co., 392 U.S. 409, 438-39 (1968) (holding that 42 U.S.C. § 1982 (1964) prohibits racial discrimination in housing by private, as well as governmental, housing providers).
64. See, e.g., Wilner V. Nat'l Sec. Agency, 592 F.3d 60, 74-75 (2d Cir. 2009) (upholding, under section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 402 (2006), a denial of a request under the Freedom of Information Act, 5 U.S.C. § 552 (2006), for information gathered under the Terrorist Surveillance Program because the requested information would reveal activities of the National Security Agency).
65. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (holding that section 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1) (2006), gives the Environmental Protection Agency authority to regulate emissions of greenhouse gases from new motor vehicles).
66. See, e.g., Morrison V. Nat'l Austl. Bank Ltd., 130 S. Ct. 2869, 2888 (2010) (holding that section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (2006), does not provide a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges).
67. See, e.g., Bartlett v. Strickland, 556 U.S. 1, 14-15 (2009) (holding that a racial minority group that constitutes less than fifty percent of a proposed district's population cannot state a vote dilution claim under section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 (2006)).
68. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (holding that a plaintiff could establish a violation of Title VII "by proving that discrimination based on sex has created a hostile or abusive work environment").
69. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (1982) (arguing that "many disparate current legal-political phenomena are reactions" to the fundamental change of American law from a legal system once dominated by common law to a system dominated by statutes); see also.
70. Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. REV. 1 (1995) (discussing the role of state judges in interpreting state statutes and constitutions).
71. State court cases interpreting statutes are numerous. See, e.g.
72. Commonwealth V. Gomez, 940 N.E.2d 488, 492-93 (Mass. App. Ct. 2011) (explaining that statutes on the same subject matter should be read as a whole to produce internal consistency).
73. Gordon v. Registry of Motor Vehicles, 912 N.E.2d 9, 13 (Mass. App. Ct. 2009) (determining that whether a statute is criminal or civil depends on the legislature's intent, which is a matter of statutory construction).
74. Kramer V. Zoning Bd. of Appeals of Somerville, 837 N.E.2d 1147, 1152 (Mass. App. Ct. 2005) ("[S]tatutes are to be interpreted in a common-sense way which is consistent with the statutory scheme, and in a way which avoids constitutional issues.").
75. DANIEL PATRICK MOYNIHAN, CAME THE REVOLUTION: ARGUMENT IN THE REAGAN ERA 66 (1988).
76. Id Id Id
77. THE FEDERALIST NO. 62, at 445 (James Madison) (Pocket Books ed 2004).
78. THE FEDERALIST NO. 63, supra note 51, at 451 (James Madison).
79. See THE FEDERALIST NO. 53, supra note 51, at 388 (James Madison) ("The greater the proportion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them.").
80. THE FEDERALIST NO. 62, supra note 51, at 447 (James Madison).
81. U.S. CONST. art. I, § 2, cl. 6.
82. Id. § 3, cl. 4.
83. Id. § 5, cl. 2.
84. Id. § 5, cl. 3.
85. Id. § 5, cl. 4.
86. Id. § 7, cl. 1.
87. JAMES L. SUNDQUIST, CONSTITUTIONAL REFORM AND EFFECTIVE GOVERNMENT 1 (1986) (quoting Letter from Gouverneur Morris to W. H. Wells (Feb. 24, 1815), in 3
88. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 421-22 (Max Farrand ed., rev. ed., 1937)).
89. House History: 1st Congress (1789-1791), OFF. CLERK U.S. HOUSE
90. REPRESENTATIVES, http://artandhistory.house.gov/house_history/index.aspx (last visited Apr. 26, 2012).
91. Noting the number of members in the first House of Representatives); The Senate Moves to Philadelphia, U.S. SENATE, http://www.senate.gov/artandhistory/history/minute/The_Senate_Moves_To_P hilidelphia.htm (last visited Apr. 26, 2012) (noting the number of members in the first Senate).
92. See JOSEPH COOPER, THE ORIGINS OF THE STANDING COMMITTEES AND THE DEVELOPMENT OF THE MODERN HOUSE (1971) (analyzing the impact of the standing committee system in the House of Representatives).
93. David T. Canon & Charles Stewart III, The Evolution of the Committee System in Congress, in CONGRESS RECONSIDERED 163.
94. Lawrence C. Dodd & Bruce I. Oppenheimer eds., 2001 (presenting evidence on the influence of select committees in the nineteenth century).
95. Jeffery A. Jenkins & Charles H. Stewart III, Order from Chaos: The Transformation of the Committee System in the House, 1816-1922.
96. PARTY, PROCESS, AND POLITICAL CHANGE IN CONGRESS 195 (David W. Brady & Mathew D. McCubbins eds., 2002) (examining the social choice problems that contributed to the rise of the early nineteenth-century committee system).
97. Eric Schickler, Institutional Development of Congress, in THE LEGISLATIVE BRANCH 35, 37-41 (Paul J. Quirk & Sarah A. Binder eds., 2005) (explaining the rise of the standing committee system in both the House of Representatives and the Senate).
98. Gerald Gamm & Kenneth Shepsle, Emergence of Legislative Institutions: Standing Committees in the House and Senate, 1810-1825, 14. LEGIS. STUD. Q. 39, 39 (1989) (discussing and applying institutional development theories to the development of standing committees in Congress). On the study of the modern committee system and changes in modern scholarship on committees, see.
99. C. Lawrence Evans, Congressional Committees, in THE OXFORD HANDBOOK OF THE AMERICAN CONGRESS 396 (Eric Schickler & Frances E. Lee eds., 2011).
100. WOODROW WILSON, CONGRESSIONAL GOVERNMENT 79 (15th prtg. 1901).
101. See RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES xiv-xv (1973).
102. DAVID E. PRICE, THE CONGRESSIONAL EXPERIENCE: A VIEW FROM THE HILL 152 (1992).
103. NORMAN J. ORNSTEIN, THOMAS E. MANN & MICHAEL J. MALBIN, VITAL STATISTICS ON CONGRESS 2008, at 109-21 (2008); see also.
104. ROGER H. DAVIDSON, WALTER J. OLESZEK & FRANCES E. LEE, CONGRESS AND ITS MEMBERS 204-05 (13th ed. 2012) (discussing the influence and importance of committee staff in drafting, negotiating, and shaping legislation).
105. ORNSTEIN ET AL., supra note 67, at 102. Here, "committees" include standing committees, subcommittees of standing committees, select and special committees, subcommittees of select and special committees, joint committees, and subcommittees of joint committees. Id.
106. Roger H. Davidson, The House of Representatives: Managing Legislative Complexity, in WORKWAYS OF GOVERNANCE: MONITORING OUR GOVERNMENT'S HEALTH 24, 33 (Roger H. Davidson ed., 2003).
107. Frank M. Coffin, Working with the Congress of the Future, in THE FEDERAL APPELLATE JUDICIARY IN THE TWENTY-FIRST CENTURY 199, 201-13 (Cynthia Harrison & Russell R. Wheeler eds., 1989).
108. ORNSTEIN ET AL., supra note 67. For compiling these data, I am grateful to Andrew Rugg, who works as a researcher for Norman J.
109. Ornstein, Thomas E. Mann, and Michael J. Malbin, on Vital Statistics on Congress. Id.
110. E-mail from Andrew Rugg, Research Assistant, Am. Enter. Inst., to author (July 12, 2011, 11:06 EST) (on file with the New York University Law Review).
111. Id.
112. E-mail from Andrew Rugg, Research Assistant, Am. Enter. Inst., to author (Jan. 24, 2012, 16:38 EST) (on file with the New York University Law Review).
113. E-mail from Andrew Rugg, Research Assistant, Am. Enter. Inst., to author (Aug. 12, 2011, 11:06 EST) (on file with the New York University Law Review).
114. Id.
115. DAVIDSON ET AL., supra note 67, at 172.
116. See id. at 219 (noting that omnibus bills "contain an array of issues that were once handled as separate pieces of legislation").
117. See id. at 221 (noting that omnibus bills "minimize the opportunities for further delay").
118. See ROGER H. DAVIDSON, WALTER J. OLESZEK & FRANCES E. LEE, CONGRESS AND ITS MEMBERS 241 (12th ed. 2010) (quoting a former chair of the House Budget Committee as saying that "[l]arge bills can be used to hide legislation that otherwise might be controversial").
119. See generally WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS 28 (8th ed. 2011) (discussing the congressional lawmaking process and how Congress's rules and procedures affect policy). For case studies of the legislative process, see the following sources. See.
120. BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR 26-58 (1981) (discussing the process of amending the Clean Air Act)
121. PAUL C. LIGHT, FORGING LEGISLATION 169-71 (1992) (describing the approval of the Department of Veterans Affairs Act).
122. KATZMANN, INSTITUTIONAL DISABILITY, supra note 2, at 15-78 (describing disjointed congressional efforts to enhance mobility for the disabled in the 1970s).
123. PHILIP G. SCHRAG, A WELL-FOUNDED FEAR: THE CONGRESSIONAL BATTLE TO SAVE POLITICAL ASYLUM IN AMERICA (2000) (charting an effort to restrict political asylum in the 104th Congress).
124. David Brady & Morris Fiorina, Congress in the Era of the Permanent Campaign, in THE PERMANENT CAMPAIGN AND ITS FUTURE 134 (Norman J. Ornstein & Thomas E. Mann eds., 2000).
125. ORNSTEIN ET AL., supra note 67, at 126 tbl.6-3.
126. E-mail from Andrew Rugg (Jan. 24, 2012, 16:38 EST), supra note 74.
127. ORNSTEIN ET AL., supra note 67, at 126 tbl.6-3.
128. E-mail from Andrew Rugg (July 12, 2011, 11:06 EST), supra note 72.
129. E-mail from Andrew Rugg (Aug. 12, 2011, 11:06 EST), supra note 75.
130. Id.
131. ORNSTEIN ET AL., supra note 67, at 18.
132. E-mail from Andrew Rugg (Aug. 12, 2011, 11:06 EST), supra note 75.
133. ORNSTEIN ET AL., supra note 67, at 124 tbl.6-1.
134. E-mail from Andrew Rugg (Aug. 12, 2011, 11:06 EST), supra note 75.
135. ORNSTEIN ET AL., supra note 67, at 125 tbl.6-2.
136. Id. at 104 tbl.4-4.
137. E-mail from Andrew Rugg (Aug. 12, 2011, 11:06 EST), supra note 75.
138. ORNSTEIN ET AL., supra note 67, at 104 tbl.4-5.
139. E-mail from Andrew Rugg (Aug. 12, 2011, 11:06 EST), supra note 75.
140. For a discussion on the challenges of deliberation, see generally.
141. SARAH A. BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK (2003).
142. PAUL J. QUIRK & GARY MUCCIARONI, DELIBERATIVE CHOICES: DEBATING PUBLIC POLICY IN CONGRESS (2006).
143. For theoretical analyses of the congressional committee system, see for example KEITH KREHBIEL, INFORMATION AND LEGISLATIVE ORGANIZATION (1991).
144. David P. Baron, Legislative Organization with Informational Committees, 44 AM. J. POL. SCI. 485 (2000).
145. Thomas W. Gilligan & Keith Krehbiel, Organization of Informative Committees by a Rational Legislature, 34. AM. J. POL. SCI. (1990), Meeting Competing Demands: Committee Performance in the Post-reform House, 39. AM. J. POL. SCI. 653 (1995).
146. James L. Buckley, a former Senator from New York and judge on the D.C. Circuit, remarked as Senator that, " My understanding of most of the legislation I voted on was based entirely on my reading of its language and, where necessary, on explanations contained in the accompanying report. Statutory Interpretation and the Uses of Legislative History: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. 21 (1990) (statement of James L. Buckley, J., D.C. Cir.).
147. In the words of another former legislator and judge, Abner Mikva, a committee report is "the most useful document in the legislative history." JUDGES AND LEGISLATORS, supra note 3, at 171.
148. ANDREA LARUE, Senate Manual Containing The Standing Rules, Orders, Laws, And Resolutions Affecting The Business Of The United States Senate, S. DOC. NO. 107-1, at 17 (1st Sess. 2001). This period of two days does not include Sundays and legal holidays. Id.; see also.
149. JOHN V. SULLIVAN, CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 108-241, at 623 (2d Sess. 2004).
150. See, e.g., GEORGE MILLER, LILLY LEDBETTER FAIR PAY ACT OF 2007, H.R. REP. NO. 110-237.
151. See, e.g., DONYOUNG, SAFE, ACCOUNTABLE, FLEXIBLE, EFFICIENT TRANSPORTATION ACT: A LEGACY FOR USERS, H.R. REP. NO. 109-105 (2005) (Conf. Rep.).
152. Clyde Wilcox, The Dynamics of Lobbying the Hill, in 1 THE INTEREST GROUP CONNECTION: ELECTIONEERING, LOBBYING, AND POLICYMAKING IN WASHINGTON 89 (PAUL S. HERRNSON, RONALD G. SHAIKO & CLYDE WILCOX EDS., 1998) (noting that members of Congress are interested in obtaining views of interest groups on proposed legislation).
153. TOBIAS A. DORSEY, LEGISLATIVE DRAFTER'S DESKBOOK: A PRACTICAL GUIDE § 2.16 (2006)
154. M. Douglass Bellis, Drafting in the U.S. Congress, 22.
155. STATUTE L. REV. 38 (2001). For examples of drafting manuals created by the Offices of Legislative Counsel, see
156. OFFICE OF THE LEGISLATIVE COUNSEL, UNITED STATES SENATE, LEGISLATIVE DRAFTING MANUAL (1997), available at http://www.law.yale.edu/documents/pdf/Faculty/SenateOffice oftheLegislativeCounsel_LegislativeDraftingManual(1997).pdf.
157. OFFICE OF THE LEGISLATIVE COUNSEL, HOUSE LEGISLATIVE COUNSEL'S MANUAL ON DRAFTING STYLE, H.L.C. DOC. NO. 104-1 (1995), available at www.house.gov/legcoun/pdf/draftstyle.pdf.
158. BJ Ard, Comment, Interpreting by the Book: Legislative Drafting Manuals and Statutory Interpretation, 120 YALE L.J. 185, 187-93 (2010) (describing how the manuals recommend formatting legislation and incorporating canons of construction). The Supreme Court has from time to time made reference to the drafting manuals in its decisions. See, e.g.
159. Carr v. United States, 130 S. Ct. 2229, 2244-46 (2010) (Alito, J., dissenting) (discussing widely accepted legislative drafting conventions).
160. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60-61 (2004) (citing the House and Senate drafting manuals in differentiating between a subparagraph and a clause).
161. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 588 (2002) (noting that legislative counsel view their involvement as "'strictly up to the client' (i.e., the senator or the committee)").
162. Katzmann, supra note 30, at 288-89.
163. Nourse & Schacter, supra note 105, at 592-93 (2002).
164. See, e.g., Jonathan R. Siegel, What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 GEO. WASH. L. REV. 309, 309, 311-19 (2001) (pointing out an error in the federal venue statute).
165. Nourse & Schacter, supra note 105, at 600, 615.
166. See supra notes 97-100 and accompanying text.
167. Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility To Read: Agency Interpretation and the Problem of Legislative History, 66. CHI.-KENT L. REV. 321, 321 (1990). See also.
168. Jerry L. Mashaw, Agency-Centered or Court-Centered Administrative Law? A Dialogue with Richard Pierce on Agency Statutory Interpretation, ADMIN. L. REV. 889, 903 (2007) [hereinafter Mashaw, Agency-Centered or CourtCentered] (rejecting the idea that the focus of administrative law should be "even more judicio-centric than it currently is").
169. Henry P. Monaghan, Marbury and the Administrative State, 83. COLUM. L. REV. 1, 25-26 (1983) (noting pre-Chevron judicial deference to agency interpretation of law).
170. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106.
171. COLUM. L. REV. 1189, 1190 (2006) ("Statutory interpretation is not the exclusive province of the courts; it is a core function of the executive branch as well.").
172. Cass R. Sunstein, Beyond Marbury: The Executive's Power To Say What the Law Is, 115 YALE L.J. 2580, 2583 (2006) (stating that the executive branch is initially responsible for statutory interpretation).
173. Cass R. Sunstein, Is Tobacco a Drug? Administrative Agencies as Common Law Courts, 47 DUKE L.J. 1013, 1068 (1998) ("[A]dministrative agencies have become America's common law courts.").
174. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101. MICH. L. REV. 885, 926-27 (2003) (describing Strauss's defense of Chevron).
175. Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 373 (1989) (noting that statutes vest agencies with implementation authority). But see.
176. Richard J. Pierce, Jr., How Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss, 59 ADMIN. L. REV. 197, 204 (2007) (disagreeing with Strauss and Mashaw that agencies are "'the primary official interpreters of federal statutes'" (quoting.
177. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57. ADMIN. L. REV. 501, 501-02 (2005) [hereinafter Mashaw, Norms, Practices, and the Paradox of Deference])). For more insight into how agencies approach the task of statutory interpretation, see.
178. Mashaw, Norms, Practices, and the Paradox of Deference, supra, where the author argues for the study of agency statutory interpretation as an autonomous enterprise.
179. HERBERT KAUFMAN, THE ADMINISTRATIVE BEHAVIOR OF FEDERAL BUREAU CHIEFS 47 (1981). For more background on how Congress exercises influence over agencies, see generally.
180. LAWRENCE C. DODD & RICHARD L. SCHOTT, CONGRESS AND THE ADMINISTRATIVE STATE 155-211 (2d ed. 1986).
181. JOSEPH P. HARRIS, CONGRESSIONAL CONTROL OF ADMINISTRATION (1964).
182. Charles R. Shipan, Congress and the Bureaucracy, in THE LEGISLATIVE BRANCH 432, 438-46 (Paul J. Quirk & Sarah A. Binder eds., 2005).
183. See ARTHUR MAASS, CONGRESS AND THE COMMON GOOD 183-88 (1983) ("[T]he committees require nominees, as a condition of confirmation, to make policy-related promises during confirmation hearings.").
184. Steven V. Roberts, A Lesson in Advising and Consenting, N.Y. TIMES, Apr. 14, 1983, at B10 (quoting Senator Carl Levin as saying that "[w]e all ask questions at confirmation hearings, hoping to obtain answers that affect future actions").
185. See generally JOEL D. ABERBACH, KEEPING A WATCHFUL EYE: THE POLITICS OF CONGRESSIONAL OVERSIGHT (1990) (discussing trends in congressional oversight as well as the politics and processes underlying such oversight).
186. DANIEL CARPENTER, REPUTATION AND POWER 333-34 (2010) (explaining that congressional hearings play a critical role in determining a federal agency's reputation due to the adversarial nature of the hearings and the public testimony presented in them).
187. DANIEL CARPENTER, THE FORGING OF BUREAUCRATIC AUTONOMY 1-3 (2002) (describing an instance in which favorable publicity for a federal agency, generated in part by the agency head, resulted in the transfer of jurisdiction over the forest reserves to the agency even in the face of strong opposition by some members of Congress).
188. CHRISTOPHER H. FOREMAN, JR., SIGNALS FROM THE HILL: CONGRESSIONAL OVERSIGHT AND THE CHALLENGE OF SOCIAL REGULATION 2 (1988) (exploring "the formal tools that Congress employs to oversee administration").
189. WILLIAM T. GORMLEY, JR. & STEVEN J. BALLA, BUREAUCRACY AND DEMOCRACY: ACCOUNTABILITY AND PERFORMANCE 83 (2d ed. 2008) (noting that oversight as a percentage of total committee activity increased from 9.1% in 1971 to 25.2% in 1983).
190. DAVID H. ROSENBLOOM, BUILDING A LEGISLATIVE-CENTERED PUBLIC ADMINISTRATION: CONGRESS AND THE ADMINISTRATIVE STATE 1946-1999, at 60-103 (2000) (discussing Congress's role in oversight hearings and general oversight over agencies).
191. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28. AM. J. POL. SCI. 165 (1984) (arguing that Congress exercises "firealarm oversight" over the less effective "police-patrol" oversight).
192. Morris S. Ogul & Bert A. Rockman, Overseeing Oversight: New Departures and Old Problems, 15 LEGIS. STUD. Q. 5 (1990) (arguing "that an institutional focus broader than the legislature is essential" for resolving basic problems in legislative oversight).
193. PAUL C. LIGHT, GOVERNMENT'S GREATEST INVESTIGATIONS: CONGRESS, THE PRESIDENT, AND THE SEARCH FOR ANSWERS, 1945-2012 (forthcoming 2013) (on file with the New York University Law Review).
194. DAVIDSON ET AL., supra note 67, at 338.
195. Id.
196. 462 U.S. 919 (1983).
197. LOUIS FISHER, CONG. RESEARCH SERV., RS22132, LEGISLATIVE VETOES AFTER Chadha 3-6 (2005). See also
198. JESSICA KORN, THE POWER OF SEPARATION: AMERICAN CONSTITUTIONALISM AND THE MYTH OF THE LEGISLATIVE VETO 13 (1996) (arguing that "the legislative veto shortcut was inconsequential to congressional control of the policy making process").
199. See WILLIAM T. GORMLEY, JR., TAMING THE BUREAUCRACY 159-64 (1989) (describing the effect of the Government Accountability Office (GAO) reports on agencies).
200. See, e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984) ("[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.").
201. In arguing that courts can learn from agencies, I emphasize that I focus on preenactment legislative history accompanying legislation. While a court's inquiry into legislative history is essentially limited to pre-enactment materials, I note that agencies are also sensitive to post-enactment signals of legislators in the current and succeeding Congresses.
202. See, e.g., Mashaw, Agency-Centered or Court-Centered, supra note 111.
203. Pierce, supra note 111.
204. Strauss, supra note 111. Mashaw discusses how such an inquiry might be undertaken. See.
205. Mashaw, Norms, Practices, and the Paradox of Deference, supra note 111, at 524-36 (querying the Federal Register rules database using key search terms as a rudimentary means of identifying agency interpretative methodologies).
206. Pierce rejects the view of Strauss and Mashaw that agencies are primary interpreters of statutes. Pierce, supra note 111, at 204.
207. See generally WILLIAM D. POPKIN, STATUTES IN COURT: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION 2-3 (1999) (detailing the evolution of statutory interpretation in the United States and recommending the adoption of a "discretionary judicial role" in statutory interpretation)
208. William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, 6
209. CARDOZO L. REV. 799 (1985) (chronicling the history of statutory intrepration in the United States and noting the shifting emphasis that courts have placed on form over substance). There are, of course, other theories of statutory construction, apart from those discussed in the succeeding pages, advanced by prominent law professors. See, e.g.
210. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 9 (1994) (endorsing dynamic statutory interpretation, which holds that "the meaning of a statute is not fixed until it is applied to concrete circumstances, and [that] it is neither uncommon nor illegitimate for the meaning of a provision to change over time").
211. RONALD DWORKIN, LAW'S EMPIRE 313-54 (1986) (advocating an approach to statutory interpretation that accounts for questions of fit, integrity, and political morality).
212. Judge Henry J. Friendly observed: "Illogical though it was to hold that a 'plain meaning' shut off access to the very materials that might show it not to have been plain at all, it was equally wrong to deny the natural meaning of language its proper primacy; like Cardozo's 'Method of Philosophy,' it 'is the heir presumptive. A pretender to the title will have to fight his way.'"
213. HENRY J. FRIENDLY, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 206 (1967) (quoting Benjamin N. Cardozo, THE NATURE OF THE JUDICIAL PROCESS 9, 32 (1921)). See also.
214. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 SUP. CT. REV. 231, 232 ("[T]he reliance on plain meaning serves a stabilizing function. bringing together to some suboptimal equilibrium a process [of coordinating multiple judicial decisionmakers] that might otherwise be much better, but also might otherwise be much worse.").
215. See, e.g., Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1411 (2010) (Sotomayor, J., dissenting) ("In my view, the Court misreads the statutory text and gives insufficient weight to contextual and historical evidence of Congress' purpose"); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 472 (2002)
216. Stevens, J., dissenting ("There are occasions when an exclusive focus on text seems to convey an incoherent message").
217. THE FEDERALIST NO. 37, at 255 (James Madison) (Cynthia Brantley Johnson ed., 2004). It merits a note that Madison and other founders proposed an active role for judges in the legislative process by having members of the Supreme Court serve on a council of revision to help the President exercise the veto power. 2
218. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 73-80 (Max Farrand ed., 1911). Such a scheme, argued Madison, would help "preserv[e] a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes."
219. Id. at 74. With respect, I think that is one proposal whose rejection was well advised.
220. See, e.g., William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990, 990-98 (2001) (providing an historical overview of statutory interpretation at the founding and arguing that judges are agents of as well as partners with Congress, with interpretative authority not confined to the text)
221. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101, COLUM. L. REV. 1648, 1648-53 (2001) (contending that although the founders did not definitively resolve the judiciary's relationship with Congress, they developed a constitutional structure that fits better with the faithful agent theory and textualism than the co-equal partner model).
222. See Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907, 954 (1993) ("[F]ar from being a practicable measure for determining which laws accorded with a constitution and which did not, natural law tended to be a theoretical explanation of limitations on natural rights.").
223. See Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. CHI. L. REV. 149 (2001) (arguing that courts have changed their interpretative practices with some frequency).
224. As Justice Breyer stated: "Only by seeking that purpose can we avoid the substitution of judicial for legislative will. Only by reading language in its light can we maintain the democratic link between voters, legislators, statutes, and ultimate implementation, upon which the legitimacy of our constitutional system rests." Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 323-24 (2006) (Breyer, J., dissenting).
225. Justice Breyer has written that he finds "purposes and consequences. most helpful most often. to help unlock the meaning of a statutory text."
226. STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE'S VIEW 88 (2010). As to consequences, he writes: "The judge also examines the likely consequences of a proposed interpretation, asking whether they are more likely to further than to hinder achievement of the provision's purpose."
227. Id. at 92. Judge Posner is of the view that "[g]ood pragmatic judges balance two types of consequence, the case-specific and the systemic." RICHARD A. POSNER, HOW JUDGES THINK 202-03 (2008); see also
228. RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 57-96 (2003) (promoting legal pragmatism, which "involves consideration of systemic and not just casespecific consequences"). Posner endorses Learned Hand's view that judges should reconstruct imaginatively the legislature's purposes. See
229. LEARNED HAND, The Contribution of an Independent Judiciary to Civilization, MASS. BAR ASS'N, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS 1692-1942, at 59 (1942), reprinted in
230. THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED HAND 155, 157 (Irving Dilliard ed., 3d ed. 1960) ("Courts must reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision."). In Judge Posner's words, a "judge should try to put himself in the shoes of the enacting legislators.".
231. RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 286 (1985). If that is not possible, "then the judge must decide what attribution of meaning. will yield the most reasonable result. bearing in mind. that it is [the legislators'] conception of reasonableness, to the extent known, rather than the judge's, that should guide decision.".
232. Id. at 287.
233. Heydon's Case, (1584) 76 Eng. Rep. 637 (K.B.) 638; 3 Co. Rep. 7a, 7b.
234. 143 U.S. 457 (1892).
235. Alien Contract Labor Act of 1885, ch. 164, § 1, 23 Stat. 332, 332 (amended 1888).
236. 143 U.S. at 459.
237. Id. at 462.
238. Id. at 464-65.
239. Id. at 471.
240. See William S. Blatt, Missing the Mark: An Overlooked Statute Redefines the Debate over Statutory Interpretation, 104 NW. U. L. REV. COLLOQUY 147, 150 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/36/ ("Long after it was decided, Holy Trinity was regarded as an important case, both for its willingness to depart from text, and for its reliance on legislative history.").
241. Professor Blatt notes that pre-Holy Trinity, the 1891 edition of Sutherland's Statutes and Statutory Construction did not make specific reference to use of committee reports.
242. Id. at n.23
243. J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION 382-84 (1891). However, the 1904 edition stated that committee reports were "proper sources of information in ascertaining the intent or meaning of an act."
244. Id. (quoting 2 J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 470, at 879-80 (John Lewis ed., 2d ed. 1904) (citing Holy Trinity)). See
245. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 COLUM. L. REV. 901, 907 (2000) ("Holy Trinity Church establishes the importance of recourse to legislative history and affords a. foundation for non-textualist approaches to statutory interpretation")
246. Bradley C. Karkkainen, "Plain Meaning": Justice Scalia's Jurisprudence of Strict Statutory Construction, 17 HARV. J.L. & PUB. POL'Y 401, 434 n.132 (1994) ("The earliest Supreme Court case commonly cited for the use of legislative history to construe a statute is Church of the Holy Trinity v. United States.")
247. Lawrence M. Solan, Law, Language, and Lenity, 40 WM. & MARY L. REV. 57, 97 (1998) (noting that "Holy Trinity presaged a gradual change in the Supreme Court's methodology" toward greater reliance on legislative history in statutory interpretation).
248. For a critique of the use of legislative history in Holy Trinity, see
249. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, STAN. L. REV. 1833, 1836 (1998), where the author uses Holy Trinity as the starting point to argue that the structural constraints of governing the adjudicatory process undermines the judiciary's abilty to accurately discern legislative intent from legislative history.
250. See, e.g., William N. Eskridge, Jr., "Fetch Some Soupmeat," 16 CARDOZO L. REV. 2209, 2217 n.38 (1995) ("Church of the Holy Trinity has. been the focal point of the debate between the Supreme Court's 'new textualists' and more purpose-based interpreters.")
251. Frederick Schauer, Constitutional Invocations, 65 FORDHAM L. REV. 1295, 1307 (1997) ("Church of the Holy Trinity v. United States is not only a case, but is the marker for an entire legal tradition, [one which emphasizes that] there is far more to law than the plain meaning of authoritative legal texts").
252. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE FEDERAL LAW 3, 22 (Amy Gutmann ed., 1997) (criticizing Holy Trinity and its inquiry beyond the text into legislative intent).
253. LEARNED HAND, How Far Is a Judge Free in Rendering a Decision?, in NAT'L ADVISORY COUNCIL ON RADIO IN EDUC., LAW SERIES I1 (1935), reprinted in THE SPIRIT OF LIBERTY 103, 106 (Irving Dilliard ed., 1952).
254. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). Hart and Sacks's materials had, until 1994-when they were formally published through the efforts of William N. Eskridge, Jr. and Philip P. Frickey-been disseminated as "a '[t]entative [e]dition.'"
255. Erwin N. Griswold, Preface to HART & SACKS, supra, at vii, vii-ix (describing the decades-long effort to publish Hart and Sacks's work). The 1994 publication consists of the 1958 tentative edition.
256. William N. Eskridge, Jr. & Philip P. Frickey, Publication Editors' Preface to HART & SACKS, supra, at xi, xi.
257. HART & SACKS, supra note 144, at 1374.
258. Id. at 1376. For a discussion of the legal process school, see Robert Post, Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics, 98 CALIF. L. REV. 1319, 1332-36 (2010).
259. See BREYER, supra note 132, at 88 (linking "whether [the Court's] interpretations will effectively carry out the statute's objectives" to "whether its relationship with Congress will tend more toward the cooperative or the confrontational")
260. Linda Greenhouse, Making Congress All It Can Be, N.Y. TIMES OPINIONATOR BLOG (Oct. 7, 2010, 9:38 PM), http://opinionator.blogs.nytimes.com/2010/10/07/making-congress-all-it-c an-be/ (noting that Justice Breyer views the Supreme Court as helping Congress). See generally
261. KATZMANN, COURTS AND CONGRESS, supra note 3 (advancing the view that courts and Congress should work together); JUDGES AND LEGISLATORS, supra note 3 (same).
262. Kenneth A. Shepsle, Congress is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L REV. L. & ECON. 239, 239 (1992).
263. For a thoughtful discussion recognizing the legitimacy of multiple approaches and factors, see.
264. Todd D. Rakoff, Statutory Interpretation as a Multifarious Enterprise, 104 NW. U. L. REV. 1559, 1569, 1570-86 (2010).
265. Commenting on the challenge of developing a "grand theory" of judicial decision making, Judge Frank Coffin wrote: "I suspect that any such attempt is about as likely to succeed as trying to shoehorn an elephant's foot into a ballet slipper."
266. Frank M. Coffin, U.S. Senior Circuit Judge, My Judicial Key Ring: Remarks upon Receipt of the Morton A. Brody 2006 Award for Distinguished Judicial Service at Colby College 4 (Mar. 19, 2006) (transcript on file with the New York University Law Review).
267. BENJAMIN FRANKLIN, A PROPOSAL TO PROMOTE USEFUL KNOWLEDGE AMONG THE BRITISH PLANTATIONS IN AMERICA 1 (1743), available at http://nationalhumanitiescenter.org/pds/becomingamer/ideas/text4/amerphi lsociety.pdf.
268. See, e.g., FRIENDLY, supra note 126, at 203-04 (1967) (emphasizing that statutes come in varying levels of specificity and open-endedness).
269. Pierre N. Leval, Trademark: Champion of Free Speech, 27 COLUM. J.L. & ARTS 187, 195-98 (2004) (describing "micromanager" statutes and delegating statutes that adopt common law or make "new policy").
270. Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 37 (1998).
271. 15 U.S.C. § 45(a)(1) (2006).
272. Americans with Disabilities Act of 1990, 42 U.S.C. § 12111(9) (2006).
273. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 542, 543 (1947).
274. reprinted in. JUDGES ON JUDGING: VIEWS FROM THE BENCH 221, 229 (David M. O'Brien ed., 1997).
275. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 324 (2006) (Breyer, J., dissenting).
276. See supra notes 9-14 and accompanying text. In another case, I found legislative history useful in assessing whether the jurisdictional bar of the False Claims Act, 31 U.S.C. § 3730(e)(4)(A) (2006), applies when the plaintiff's allegations are based on materials produced in response to a Freedom of Information Act, 5 U.S.C. § 552 (2006), request. United States ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94, 108-10 (2d Cir. 2010).
277. See A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 71, 77 (1994) (explaining how analysis of legislative history supplements rigorous textual analysis by enabling a judge to "test[] his tentative construction of the statutory language"). For an example of how legislative history has been used to construe the meaning of a specialized term in the context of a complex statutory scheme, see
278. Solite Corp. v. EPA, 952 F.2d 473, 492-93 (D.C. Cir. 1991), where the court analyzes whether the Bevill Amendment to Subtitle C of the Resource Conservation and Recovery Act applies to various waste categories, including lightweight aggregate air pollution dust, lead process wastewater, or chrome tailings.
279. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 472 (2002) (Stevens, J., dissenting).
280. See, for example, Justice Sotomayor's opinion in Carr v. United States, 130 S. Ct. 2229, 2241-42 (2010), where the Court used legislative history to supplement textual analysis in determining whether a provision of the Sex Offender Registration and Notification Act that criminalized interstate travel of unregistered sex offenders was intended to apply to sex offenders who traveled before the passage of the Act, and ustice.
281. Kagan's opinion in Tapia v. United States, 131 S. Ct. 2382, 2391 (2011), where the Court observed that the legislative history provided further confirmation of the use of textual analysis in determining whether the Sentencing Reform Act precludes federal courts from lengthening a prison term to promote rehabilitation.
282. Interbranch Relations, supra note 15, at 277 (statement of Robert W. Kastenmeier, Fellow, Governance Inst.).
283. Nomination of Judge Antonin Scalia: Hearings Before the S. Comm. on the Judiciary on the Nomination of Antonin Scalia, To Be Associate Justice of the Supreme Court of the United States, 99th Cong. 65-66 (1986) (statement of Sen. Charles E. Grassley).
284. Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 318-19 (2005) (statement of Sen. Charles E. Grassley). A few months later, Senator Grassley would question Judge Samuel Alito on his views of legislative history.
285. See Confirmation Hearing on the Nomination of Judge Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 503 (2006) (statement of Sen. Charles E. Grassley).
286. Orrin Hatch, Legislative History: Tool of Construction or Destruction, 11 HARV. J.L. & PUB. POL'Y 43, 43 (1988).
287. Id. at 47.
288. Joan Biskupic, Scalia Takes a Narrow View in Seeking Congress' Will, 48 CONG. Q. WKLY. REP. 913, 917 (1990) (alteration in original). At the most recent Supreme Court confirmation hearing, that of Elena Kagan, Senator Al Franken (D-MN), criticized a Supreme Court decision for not looking into legislative history, and urged the nominee to consider such history, observing that "we spend a lot of time in hearings and on the floor debating legislation." The Nomination of Elena Kagan To Be an Associate Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 219 (2010) (statement of Sen. Al Franken).
289. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (emphasis omitted) (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845)).
290. INS v. Cardoza-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J., concurring).
291. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 620 (1991) (Scalia, J., concur-ring in the judgment).
292. Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring in part and concurring in the judgment).
293. Thompson v. Thompson, 484 U.S. 174, 192 (1988) (Scalia, J., concurring) (citation omitted).
294. As then-D.C. Circuit Judge Scalia wrote: "[R]outine deference to the detail of committee reports. [is] converting a system of judicial construction into a system of committee-staff prescription." Hirschey v. Fed. Energy Regulatory Comm'n, 777 F.2d 1, 8 (D.C. Cir. 1985) (Scalia, J., concurring).
295. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 698 (1997) ("[T]extualists have opened a second front in pressing their constitutional objections to the authority of legislative history-Lockean nondelegation principles.").
296. Scalia, supra note 142, at 36 ("In any major piece of legislation, the legislative history is extensive, and there is something for everybody The variety and specificity of result that legislative history can achieve is unparalleled.").
297. See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962) (outlining principles of public choice theory)
298. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 21-33 (1991) (same).
299. William C. Mitchell & Michael C. Munger, Economic Models of Interest Groups: An Introductory Survey, 35 AM. J. POL. SCI. 512 (1991) (reviewing several scholars' earlier models of how interest groups influence policies).
300. Susan Rose-Ackerman, Comment, Progressive Law and Economicsand the New Administrative Law, 98 YALE L.J. 341, 344-47 (1988) (outlining public choice theory).
301. See, e.g., Frank H. Easterbrook, The Supreme Court, 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 45-51 (1984) (observing that the Supreme Court has, through its opinions, become more sympathetic to the public choice/ interest group approach toward legislation).
302. Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. CHI. L. REV. 703, 704 (1984) (noting that an interest group's ability to influence legislation has been used as a justification for very limited constitutional protection of economic liberties)
303. Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 226 (1986) (arguing that the judiciary, through its interpretation of statutes, serves as a critical check on the ability of private interest groups to advance their particular interests at the expense of the public)
304. Geoffrey P. Miller, Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine, 77 CALIF. L. REV. 83 (1989) (applying public choice principles to examine the history of the American dairy industry's efforts to pass laws discriminating against margarine).
305. See, e.g., Peter H. Aronson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislation Delegation, 68 CORNELL L. REV. 1, 37-62 (1982) (describing responsibilityshifting and lottery models).
306. But see Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 85-91 (1985) (critiquing opponents of the delegation doctrine).
307. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 2 (1971) (emphasis omitted).
308. See, e.g., MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 39-49 (1977) (describing a self-interested congressional establishment concerned primarily with its own reelection).
309. Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring in part and concurring in the judgment).
310. John F. Manning, Second Generation Textualism, 98 CALIF. L. REV. 1287, 1309-10 (2010).
311. See Adam Liptak, Justices Turning More Frequently to Dictionary, and Not Just for Big Words, N.Y. TIMES, June 14, 2011, at A11 (noting that Supreme Court justices have increased their use and citation of dictionaries to aid in interpreting statutory language).
312. In earlier writings, Professor Manning did leave open a narrow window for the use of legislative history when it supplies "an objective unmanufactured history of a statute's context." Manning, supra note 174, at 731.
313. He wrote: If such legislative history persuasively describes that objective context (rather than merely offering the committee's or sponsor's own idiosyncratic expression of intent), a court may consider that history for "'the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facters [sic] which give it power to persuade, if lacking power to control.'"
314. John F. Manning, Putting Legislative History to a Vote: A Response to Professor Siegel, VAND. L. REV. 1529, 1529 n.2 (2000) (quoting.
315. John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 733 n.252 (1997) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))).
316. See, e.g., FARBER & FRICKEY, supra note 176, at 116-17 (discussing the limitations of public choice theory).
317. KATZMANN, COURTS AND CONGRESS, supra note 3, at 52-53 (criticizing the public choice view as oversimplified and noting that Congress sometimes acts without interest group support or despite powerful opposition)
318. THE POLITICS OF REGULATION (James Q. Wilson ed., 1980).
319. Robert A. Katzmann, Comments on Levine and Forrence, "Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis," 6 J.L. ECON. & ORG. 199 (1990) (discussing several possible reasons for legislative and regulatory outcomes outside of the paradigmatic public choice analysis).
320. On agenda setting, see BRIAN D. JONES & FRANK R. BAUMGARTNER, THE POLITICS OF ATTENTION (2005), where the author examines how policymakers obtain and use information to set the agenda, and
321. JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2d ed. 2011), where the author explores how issues become part of the public agenda.
322. R. Shep Melnick found little interest group involvement in his studies of the food stamp program, aid to families with dependent children, and special education. See
323. R. SHEP MELNICK, BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS 259-60 (1994) (noting that legislators' desires to advance what they believed to be good public policy were driving forces in the development of these policies as well as broader public opinion).
324. See James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION, supra note 185, at 357, 357-72 (assessing non-economic reasons driving the politics of regulation).
325. See KATZMANN, INSTITUTIONAL DISABILITY, supra note 2, at 189 n.1 (arguing that in the case of the disability rights movement, "policy origination owe[d] little to 'interest group liberalism'").
326. See MARTHA DERTHICK & PAUL J. QUIRK, THE POLITICS OF DEREGULATION 16-19 (1985) (noting that industry interests were vehemently opposed to the deregulation of the air transport, trucking, and wireline telephone industries).
327. Wilson, supra note 188, at 357-72 (reviewing various regulatory proposals and analyzing their sources of political support).
328. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 13 (1974).
329. See, e.g., MELNICK, supra note 187, at 260 (noting that legislators' desires to advance what they believed to be good public policy were driving forces in the development of these policies as well as broader public opinion).
330. Martin D. Ginsburg, Luncheon Speech at the New York State Bar Association Tax Section Annual Meeting Luncheon (Jan. 24, 1991), in.
331. Interbranch Relations, supra note 15, at 293-95 (noting that in the area of tax legislation, many provisions in the committee reports are not read by members of Congress).
332. Observing that he was "considerably involved in writing" the "uniform capitalization rules" on authors, Senator Moynihan contended that the rules-designed to provide a better matching of income and expenses of manufacturing property-did not apply to books.
333. Daniel Patrick Moynihan, Letter to the Editor, How To Tell a Manufacturer from a Writer, N.Y. TIMES, Sept. 6, 1987, at E14. However, a footnote in a conference committee report that later became law did appear to encompass books. Senator Moynihan was moved to write: I was a member of the conference committee. I do not ever recall the subject's having been raised, nor does any senator or representative with whom I've talked. My best guess is that staff members wrote it into the report thinking it was already law It is not law, and must not be construed as law.
334. Id.
335. Joan Biskupic, Congress Keeps Eye on Justices as Court Watches Hill's Words, 49 CONG. Q. WKLY. REP. 2863, 2863 (1991).
336. Id.
337. When Justice Scalia rebuked Justice Alito's use of legislative history in Zedner v. United States, 547 U.S. 489, 509-11 (Scalia, J., concurring in part and concurring in the judgment), the mainstream media took notice. See
338. Tony Mauro, Alito the Latest To Feel Scalia's Sting, LEGAL TIMES, June 12, 2006, at 8.
339. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).
340. see also United States v. Gayle, 342 F.3d 89, 92 (2d Cir. 2003) ("Statutory construction begins with the plain text and, if that text is unambiguous, it usually ends there as well.").
341. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 412 n.29 (1971) (emphasis added).
342. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)
343. Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983)).
344. See, e.g., William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation from Chevron to Hamdan, 97 GEO. L.J. 1083, 1135-36 (2008) (noting that the Supreme Court uses legislative history in the Chevron inquiry).
345. See generally FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 59 (2009) (noting that even proponents of legislative history acknowledge that its use must be grounded first in the text, for they "do not disregard the text, they seek to illuminate it")
346. James J. Brudney, Confirmatory Legislative History, 76 BROOK. L. REV. 901 (2011) (discussing the use of legislative history as a tool for judges to confirm and complete conclusions they have already reached)
347. James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Berger and Rehnquist Eras, 89 JUDICATURE 220 (2006) (noting the sharp decline in the Court's interest in legislative history over time)
348. James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 DUKE L.J. 1231 (2009) (identifying an overall decline in the use of legislative history, but pointing out that the Court continues to use legislative history to identify congressional bargains or to borrow expertise from a more knowledgeable branch, depending on the substantive area of law)
349. Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 369, 369 (1999) (positing that Justice Scalia has "contributed significantly to a sharp reduction in the Court's use of legislative history")
350. David S. Law & David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 WM. & MARY L. REV. 1653 (2010) (discussing the use of legislative history generally).
351. Nomination of Ruth Bader Ginsburg, To Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 103d Cong. 224 (1993).
352. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2255 (2001) (discussing the inability or unwillingness of Congress to legislate specific solutions to problems and noting its preference for general delegations of power).
353. Rubin, supra note 111, at 411 (expressing a preference for goal-oriented statutes that leave the precise implementation to agencies, given the complexity of the issues that face Congress). On the politics of delegation, see generally
354. JAMES H. COX, REVIEWING DELEGATION: AN ANALYSIS OF THE CONGRESSIONAL REAUTHORIZATION PROCESS (2004).
355. DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS (1999). For the view that Congress sometimes crafts legislation recognizing that courts will ultimately have to resolve open questions, see
356. GEORGE I. LOVELL, LEGISLATIVE DEFERRALS: STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY 253 (2003).
357. Richard B. Stewart, Beyond Delegation Doctrine, 36 AM. U. L. REV. 323, 331 (1987).
358. See Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 387 ("An absence of textual specification may equally reflect the incapacity of legisla-tors, no matter how willing to try to resolve statutory uncertainties, to anticipate all of the uncertainties that will arise, as well as the difficulties of crafting language that, in the myriad context to which it is applied, will avoid ambiguity.").
359. HERBERT KAUFMAN, TIME, CHANCE AND ORGANIZATIONS: NATURAL SELECTION IN A PERILOUS ENVIRONMENT 52 (1985). See also
360. Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1681 (2004) ("Another reason may be the incentive of any institution (and of those who champion that institution) to prefer ambiguity when clarity might diminish its power or prestige.")
361. Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627 (2002) (explaining the role of ambiguity in reaching compromise in Congress)).
362. See Elizabeth Garrett, Legal Scholarship in the Age of Legislation, 34 TULSA L.J. 679, 688 (1999) (calling for more empirical scholarship on how Congress functions to test theories such as textualism).
363. As scholars have pointed out, the records of the Constitutional Convention consulted by textualists are incomplete. See, e.g.
364. James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 63 TEX. L. REV. 1 (1986).
365. James J. Brudney, Intentionalism's Revival, 44 SAN DIEGO L. REV. 1001, 1009-10 (2007)
366. Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, VAND. L. REV. 1457, 1480 (2000). But see.
367. Manning, supra note 174, at 706-25 (arguing that interpretative reliance on legislative history creates an opportunity for legislative selfdelegation, contrary to the clear assumption of constitutional structure).
368. See supra note 104 and accompanying text (noting established drafting rules and practices in the Senate and House). For an interesting view suggesting that Congress could legislate doctrines of statutory construction, see
369. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085 (2002).
370. Brudney, supra note 202, at 1010.
371. Confirmation Hearing on the Nomination of John G. Roberts, Jr.To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 319 (2005) (statement of Sen. Charles E. Grassley).
372. Hatch, supra note 165, at 43.
373. JEREMY WALDRON, THE DIGNITY OF LEGISLATION 5 (1999).
374. See JAMES OLDHAM, ENGLISH COMMON LAW IN THE AGE OF MANSFIELD 31-32 (2004) (discussing Mansfield's legislative and judicial experience). For this reference, I am grateful to Professor Bernadette Meyler of Cornell Law School.
375. Magistrate Judge Edward G. Bryant of Tennessee was a member of the House of Representatives from Tennessee and Judge Gregory Carman of the Court of International Trade was a member of the House of Representatives from New York. In the 1980s, judges who had been members of Congress included
376. Frank M. Coffin, Abner Mikva, Thomas Meskill, James L. Buckley, Donald Russell, Oren Harris, Charles Wiggins, William Hungate, and Gregory Carman. Several federal judges have had substantial legislative experience as congressional staffers, including Justice Breyer, but they comprise a small percentage of judges as a whole. On this point, I am grateful to Daniel Holt of the Federal Judicial Center's History Office, see
377. E-mail from Richard Jaffe to author (Oct. 12, 2011, 17:50 EST) (on file with the New York University Law Review), as well as to Judge Richard Eaton of the Court of International Trade, himself a former congressional chief of staff, and to Richard Jaffe of the Administrative Office of the U.S. Courts, for their insights.
378. Representative Alcee Hastings of Florida was a federal district court judge, and Senator John Cornyn of Texas was a Texas Supreme Court justice. Legislators who clerked for federal judges include Senator Richard Blumenthal of Connecticut, Senator Kirsten Gillibrand of New York, Senator Mike Lee of Utah, and Representative Judy Biggert of Illinois.
379. M. DOUGLASS BELLIS, FED. JUDICIAL CTR., STATUTORY STRUCTURE AND LEGISLATIVE DRAFTING CONVENTIONS: A PRIMER FOR JUDGES (2008), available at http://www.fjc.gov/public/pdf.nsf/lookup/draftcon.pdf/$file/draft con.pdf.
380. See supra notes 185-91 and accompanying text.
381. See JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FEDERAL COURTS 126 (1995), available at http://www.uscourts.gov/uscourts/FederalCourts/Publications/FederalCourt sLongRangePlan.pdf (proposing a checklist of potential technical problems for use by legislative staff).
382. Joseph F. Weis, Jr. et al., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 91-92 (1990), available at http://www.fjc.gov/public/pdf.nsf/lookup/repfcsc.pdf/$file/repfcs c.pdf (same).
383. Peter H. Schuck, Trimming Litigation, AM. LAW., Dec. 2008, at 79 (discussing the cost savings and other benefits of a checklist aimed at common, inadvertent problems with legislative drafting).
384. 28 U.S.C. § 1658(a) (2006)
385. Ledbetter v. Goodyear Tire & Rubber Co., 500 U.S. 618, 643, 667 (2007) (Ginsburg, J., dissenting) ("As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII.").
386. See also, e.g., Schindler Elevator Corp. v. United States ex rel. Daniel Kirk, 131 S. Ct. 1885, 1896, 1898 (2011) (Ginsburg, J., dissenting) ("After today's decision, which severely limits whistleblowers' ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention.").
387. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 334 (1991) ("Congress and its committees are aware of the Court's statutory decisions, devote significant efforts toward analyzing their policy implications, and override those decisions with a frequency heretofore unreported.")
388. Michael E. Solimine & James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 TEMP. L. REV. 425, 425 (1992) (noting Congress's willingness to override Supreme Court decisions with which it disagrees). For a rich case study of how Congress responds to Supreme Court decisions, see.
389. Elizabeth Garrett, The Story of TVA v. Hill: Congress Has the Last Word, in STATUTORY INTERPRETATION STORIES 58 (William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett eds., 2011). On occasion, the Supreme Court invites Congress to review its statutory decisions.
390. Lori Hausegger & Lawrence Baum, Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation, 43 AM. J. POL. SCI. 162, 164 (1999) (noting that such invitations are diffuse or vague).
391. Ruth Bader Ginsburg, Communicating and Commenting on the Court's Work, 83 GEO. L.J. 2119, 2125 (1995).
392. Id. (footnote omitted).
393. HENRY J. FRIENDLY, The Gap in Lawmaking-Judges Who Can't and Legislators Who Won't, in BENCHMARKS 41, 49 (1967).
394. Id. at 47.
395. Id. at 47-48.
396. Id. at 58.
397. James L. Buckley, Commentary, The Perspective of a Judge and Former Legislator, 85 GEO. L.J. 2223, 2224 (1997).
398. For a review of such mechanisms, especially in the states.
399. see Shirley S. Abrahmson & Robert L. Hughes, Shall We Dance? Steps For Legislators and Judges in Statutory Interpretation, 75. MINN. L. REV. 1045, 1059-81 (1991), where the author discusses mechanisms for legislative monitoring of judicial opinions interpreting statutes.
400. Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 HARV. L. REV, 1417-1428, 1432 (1987) (internal quotation marks omitted). Interview with Chief Judge Frank M. Coffin, THE THIRD BRANCH (Admin. Office of the U.S. Courts, Washington, D.C.), June 1982, at 1, 6.
401. James L. Oakes, Grace Notes on "Grace Under Pressure," 50 OHIO ST. L.J. 701, 714-15 (1989).
402. Wilfred Feinberg, A National Court of Appeals?, 42 BROOK. L. REV. 611, 627 (1976) (recognizing that if conflicts among the circuits can be brought to Congress's attention, then they may be easily resolved by a "formal expression of legislative intent").
403. See John Paul Stevens, Some Thoughts on Judicial Restraint, 66 JUDICATURE 177, 183 (1982) (discussing the efficiency and appropriateness of a congressional role in the resolution of intercircuit conflicts on questions of statutory construction).
404. Benjamin N. Cardozo, A Ministry of Justice, 35 HARV. L. REV. 113, 114 (1921) (citing Roscoe Pound, Juristic Problems of National Progress, 22 AM. J. SOC. 721, 729, 731 (1917)).
405. THE WORKS OF JEREMY BENTHAM 597-612 (John Bowring ed., 1843)); see also Larry Kramer, "The One-Eyed Are Kings": Improving Congress's Ability To Regulate the Use of Judicial Resources, 54.
406. LAW & CONTEMP. PROBS. 73, 90-97 (1991) (discussing the need for an interbranch agency to reconcile discrepancies between Congress and the judiciary).
407. FRIENDLY, supra note 227, at 62.
408. See supra note 3 and accompanying text (discussing the work of the Governance Institute).
409. Ginsburg & Huber, supra note 233, at 1428.
410. Here, I draw upon Katzmann & Wheeler, A Mechanism for "Statutory Housekeeping," supra note 3 (arguing that Congress finds helpful the courts of appeals' program, which serves to alert Congress of potential drafting problems).
411. At the time, I was president of the Governance Institute and a Brookings Institution fellow, and taught at Georgetown.
412. Proceedings of the Forty-Ninth Judiciary Conf. of the D.C. Cir., 124 F.R.D. 241, 312-36 (1988).
413. KATZMANN, COURTS AND CONGRESS, supra note 3, at 73-74.
414. Id. at 76-77 (noting the meeting between congressional members and D.C. Circuit Judges Wald, Buckley, Ginsburg, and Mikva).
415. See William H. Rehnquist, Chief Justice Issues 1992 Year-End Report, 25 THIRD BRANCH 1, 5-6 (Jan. 1993) (noting that the Supreme Court decided in 1993 to make the pilot project permanent).
416. See JUDICIAL CONFERENCE OF THE U.S., supra note 221, at 127 (setting out Implementation Strategy 91e). The early days of the project were the subject of a special report in the Georgetown Law Journal.
417. See Robert A. Katzmann & Stephanie M. Herseth, Special Report, An Experiment in Statutory Communication Between Courts and Congress: A Progress Report, 85 GEO. L.J. 2189 (1997).
418. The issue included individual commentaries by M. Douglass Bellis, Frank Burk, Mark J. Langer, and Judge James L. Buckley.
419. See M. Douglass Bellis, Commentary, A View from the House of Representatives, 85 GEO. L.J. 2209 (1997)
420. Frank Burk, Commentary, Statutory Housekeeping: A Senate Perspective, 85 GEO. L.J. 2217 (1997).
421. Mark J. Langer, Commentary, Implementing the Project: A Court Administrator's Role, 85 GEO. L.J. 2219 (1997).
422. James L. Buckley, Commentary, The Perspective of a Judge and Former Legislator, 85 GEO. L.J. 2223 (1997).
423. The Offices of Legislative Counsel in the House and the Senate are nonpartisan units that provide confidential drafting services requested by individual legislators and legislative committees.
424. See OFFICE OF LEGISLATIVE COUNSEL, U.S. HOUSE OF REPRESENTATIVES, http://www.house.gov/legcoun/.
425. OFFICE OF LEGISLATIVE COUNSEL, U.S. SENATE, http://slc.senate.gov/index.htm. Background of the legislative counsels' interest in the project is set forth in Memorandum from.
426. James C. Duff, Dir., Admin. Office of U.S. Courts, D. Brock Hornby, J., U.S. Dist. Court for Dist. of Me., & Robert A. Katzmann, J., U.S. Court of Appeals for the Second Circuit, to Judges, U.S. Courts of Appeal, and Clerks of Court, U.S. Courts of Appeal, Project To Provide Congress with Appellate Opinions Bearing on Technical Matters of Statutory Construction 1, 2 (July 19, 2007) [hereinafter Memorandum from Duff, Hornby & Katzmann] (on file with the New York University Law Review).
427. The Memorandum also announced that the Administrative Office's Assistant General Counsel would help institutionalize the project by tracking the number of opinions sent and consulting periodically with the legislative counsels and the appellate courts as to whether the project needed adjustment. Memorandum from Duff, Hornby & Katzmann, supra note 249, at 2.
428. See Memorandum from Russell R. Wheeler, President, Governance Institute, on Statutory Housekeeping Project 5-28 (Aug. 1, 2011) (on file with the New York University Law Review) (providing a list and description of cases).
429. Rotimi v. Holder, 577 F.3d 133, 134 (2d Cir. 2009) (upholding a Board of Immigration Appeals decision which held that an applicant for a waiver of inadmissibility had not "lawfully resided continuously" in the United States as required by the statute during the period in which his visitor visa had expired, and noting that the fact that the applicant had applied for asylum and for adjustment of status had no bearing).
430. See Ross-Tousey v. Neary (In re Ross-Tousey), 549 F.3d 1148, 1150 (7th Cir. 2008) (holding that "an above-median-income debtor who has no monthly vehicle loan or lease payment can claim a vehicle ownership expense deduction when calculating. disposable income").
431. But see Ransom v. MBNA, Am. Bank, N.A. (In re Ransom), 577 F.3d 1026, 1031-32 (9th Cir. 2009) (holding that a debtor is not entitled to a vehicle ownership expense deduction for a vehicle that he owned free and clear of liens). In January 2011, the Supreme Court held that car owners are not entitled to the deduction.
432. See Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 730 (2011) (holding that a debtor who does not make loan or lease payments may not take the car ownership deduction).
433. See United States v. Dixon, 551 F.3d 578, 582-83 (7th Cir. 2008) (holding that section 2250 of the Act does not require that the defendant's travel postdate the Act), rev'd, 130 S. Ct. 2229 (2010).
434. See Carr v. United States, 130 S. Ct. 2229, 2242 (2010) (holding that section 2250 does not apply to sex offenders whose interstate travel occurred before the Sex Offender Registration and Notification Act's effective date).
435. See United States v. Vasquez, 611 F.3d 325, 328 (7th Cir. 2010) (holding that the government was not required to prove that the defendant had specific knowledge that he was required to register under the Sex Offender Registration and Notification Act).
436. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified as amended in scattered sections of 28 U.S.C.).
437. 28 U.S.C. § 1453(c)(1) (2006) (effective Feb. 18, 2005).
438. Morgan v. Gay, 466 F.3d 276, 277 (3d Cir. 2006).
439. See Spivey v. Vertrue, Inc., 528 F.3d 982, 983-84 (7th Cir. 2008) (noting that an imprecisely stated deadline in the statute does not constitute a sufficient basis for courts to simply disregard the language of the actual statute).
440. Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, 123 Stat. 1607, 1608 (to be codified at 28 U.S.C. § 1453(c)(1)).
441. Memorandum from Duff, Hornby & Katzmann, supra note 249, at 3 attach.1.
442. Id.
443. See id. at 2 ("[T]he opinions help Congress understand how statutes may be drafted to make legislative intent as clear as possible The House and Senate legislative counsel. are principally responsible for analyzing the drafting issues identified in each opinion").
444. Id.
445. See Bellis, supra note 248, at 2209 (noting that the House Office of Legislative Counsel has been "involved with the project since its inception").
446. Burk, supra note 248, at 2217 (noting that the Senate Office of Legislative Counsel's participation in the project "has been a success").
447. See, e.g., Letter from Rep. Thomas S. Foley, U.S.H.R. Speaker, Richard A. Gephardt, U.S. Sen. Majority Leader, & Sen. Robert H. Michel, U.S. Sen. Republican Leader, to David Meade, Legis. Couns. (Sept. 28, 1992), in Interbranch Relations, supra note 15, at 309 (1993)
448. Letter from George J. Mitchell, U.S. Sen. Majority Leader, Robert Dole, U.S. Sen. Republican Leader, & Robert C. Byrd, U.S. Sen. President Pro Tempore, to Frank L. Burk, Jr., Legis. Couns., U.S. Sen., in Interbranch Relations, supra note 15, at 310.
449. H.R. REP. NO. 103-413(I), at 25 (1993) (encouraging "the appropriate committees of jurisdiction in the House and Senate to monitor regularly and systematically Federal court decisions and to report periodically to their respective Chambers on the significant issues that merit review in this relationship") S. REP. 103-215(I) (1993).
450. Letter from John Conyers, Jr., U.S.H.R. Chairman of Judiciary Comm. & Lamar S. Smith, U.S.H.R. Ranking Member, to M. Pope Barrow, Legis. Couns., U.S.H.R. 2 (May 23, 2007) (on file with the New York University Law Review) (recommending that the Office of Legislative Counsel "continue its participation in the project") [hereinafter Conyers & Smith Letter]; Letter from Orrin Hatch, Chairman, U.S.
451. Sen. Comm. on the Judiciary, & Patrick Leahy, Ranking Democratic Member, U.S. Sen. Comm. on the Judiciary, to James Fransen, Legis. Couns., U.S. Sen. (Mar. 21, 2001) (on file with the New York University Law Review).
452. Letter from Patrick Leahy, Chairman, U.S.
453. Sen. Comm. on the Judiciary, and Arlen Specter, Ranking Republican Member, U.S. Sen. Comm. on the Judiciary, to James Fransen, Legis. Couns., U.S. Sen. (Feb. 14, 2007) [hereinafter Leahy & Specter Letter] (on file with the New York University Law Review) (recommending that the Office of Legislative Counsel "continue its participation in the project").
454. Email from Danielle Cutrona, Chief Nominations Counsel for Senator Jeff Sessions, Senate Judiciary Comm., to author (Sept. 14, 2010, 10:41 EST) (indicating Senator Jeff Sessions's remarks to the Judiciary).
455. Burk, supra note 248, at 2217.
456. Id.
457. See Feedback Requested on Technical Aspects of Law, 39 THIRD BRANCH 7, 9 (Aug. 2007), available at http://www.uscourts.gov/News/TheThirdBranch/07-08-01/Feedback_Requested_ on_Technical_Aspects_of_Laws.aspx (discussing how Fransen believes in the usefulness of the project).
458. Id.
459. Bellis, supra note 248, at 2215.
460. Katzmann & Wheeler, A Mechanism for "Statutory Housekeeping," supra note 3, at 140.
461. Bellis, supra note 248, at 2213.
462. Id.
463. Robert Katzmann & Russell Wheeler, More About the "Statutory Housekeeping Project," IN CAMERA, FED. JUDGES ASS'N (Fed. Judges Ass'n), Aug. 31, 2010, available at http://www.federaljudgesassoc.org/egov/docs/newsletters/38_167_716.asp; Feedback on Technical Matters Aids Legislation, 42
464. THE THIRD BRANCH 4 (Admin. Office of the U.S. Courts, Washington, D.C.), Feb. 2010, at 4, available at http://www.uscourts.gov/News/TheThirdBranch/TTBViewer.aspx?doc=/uscourts /news/ttb/archive/2010-02%20Feb.pdf.
465. Conyers & Smith Letter, supra note 267.
466. Leahy & Specter Letter, supra note 267.
467. The Administrative Conference of the United States, currently chaired by the wellknown legal scholar and administrator, Paul Verkuil, is an independent federal agency dedicated to improving the administrative process. ADMIN. CONFERENCE OF THE U.S., http://www.acus.gov/ (last visited Apr. 26, 2012).
468. See Stephen F. Ross, Where Have You Gone Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?, 45 VAND. L. REV. 561, 575-76 (1992) (noting that conference committee reports are signed by members).
469. Robert A. Katzmann, Summary of Proceedings, in JUDGES AND LEGISLATORS, supra note 3, at 167.
470. Hatch, supra note 165, at 48.
471. THE FEDERALIST NO. 62, supra note 51, at 445 (James Madison).