Intertemporal statutory interpretation and the evolution of legislative drafting

Columbia Law Review

Volumn 114, Issue 4, 2014, Pages 807-877

  Shobe, Jarrod ^a  

^a NONE

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EID: 84900809199     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (460)

1. Abner J. Mikva, former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, has stated that confusion is caused by "the unawareness that the legislative branch and the judicial branch have of each other's game rules. " Abner J. Mikva, Reading and Writing Statutes, 28 S. Tex. L. Rev. 181, 183 (1986).
2. James L. Buckley, Introduction of Discussion Subject and Panelists, in Proceedings of the Forty-Ninth Judicial Conference of the District of Columbia Circuit, 124 F.R.D. 241, 313 (1989).
3. Frank M. Coffin, The Federalist Number 86: On Relations Between the Judiciary and Congress, in Judges and Legislatures: Toward Institutional Comity 21, 22 (Robert A. Katzmann ed., 1988).
4. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 886 (2003).
5. For prominent examples of political scientists analyzing the operations and motivations of Congress, see generally Sarah A. Binder, Minority Rights, Majority Rule: Partisanship and Development of Congress (1997) (analyzing through historical perspective on procedural rights why majority party is consistently powerful in House while minority party often prevails in Senate).
6. David Mayhew, Congress: The Electoral Connection (2d ed. 2004) (exploring expected behavior of theoretical member of Congress single-mindedly focused on winning reelection).
7. Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (4th ed. 1997) (using case studies to show modern difficulties in passing legislation).
8. Very few legal academics have spent time in the legislative branch, while many of them have spent time working as judicial clerks or as litigators. See Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 Wash. U. L. Rev. 699, 702 (2010) ("On the most prestigious law faculties, only 5 percent of professors have worked for a legislative institution-local, state, federal, or international. ").
9. See William N. Eskridge, Jr., No Frills Textualism, 119 Harv. L. Rev. 2041, 2073 (2006) (reviewing Adrian Vermeule, Judging Under Uncertainty (2006) ("Younger scholars have introduced interesting new ideas, but ideas without a deep grounding in the legislative and administrative processes may not be the best way to develop this field. ").
10. Professor Victoria Nourse recently wrote an article about how courts and scholars "misunderstand" Congress. Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L.J. 1119, 1145 (2011).
11. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 905-06 (2013) [hereinafter Gluck & Bressman, Part I] (reporting results of interviews with "137 congressional counsels with responsibilities over drafting legislation" regarding role of canons of statutory interpretation and delegation doctrines).
12. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
13. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 576 (2002).
14. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 576 (2002).
15. The public-choice-theory debate is outside the scope of this Article. Public choice theory characterizes Congress as unduly influenced by private, rather than public, interests that pay rents in return for legislation. See generally Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 1 (1991) (introducing public choice theory and exploring its application to legal issues). This Article shows that regardless of who controls Congress, understanding how Congress works is crucial to understanding whether Congress is able to convey its meaning clearly. Whether or not Congress pursues its agenda in a normatively desirable manner is a separate issue from whether or not Congress can clearly convey meaning.
16. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 14 (1994) [hereinafter Eskridge, Dynamic] ("Traditional legal writers have no theory of legislatures in general.... ").
17. The author interviewed lawyers in the House Office of the Legislative Counsel, lawyers in the Congressional Research Service, and committee staffers. Because of the sensitive nature of their positions, the author assured those interviewed that he would not directly attribute their quotes. This anonymity requires some sacrifice in terms of precision and direct quotes, but it is necessary to protect those interviewed.
18. These are not the only support groups within Congress, but they are the most significant to the drafting process. Other groups that have a role in congressional policymaking include the Government Accountability Office (GAO) and the Congressional Budget Office (CBO). The CBO deals mostly with determining costs of programs and budgetary issues, which are less directly related to developing statutory policy or language. See Cong. Budget Office, An Introduction to the Congressional Budget Office 1-3 (2012), available at http://cbo.gov/sites/default/files/cbofiles/attach ments/2012-IntroToCBO.pdf (on file with the Columbia Law Review) (describing projects CBO undertakes to analyze financial impact of various budgetary proposals and legislative initiatives).
19. U.S. Gov't Accountability Office, About GAO (2011), available at http://gao.gov/about/gao_at_a_ glance_2010_english.pdf (on file with the Columbia Law Review). Since these offices have little influence on the drafting of statutes, they will not be discussed in depth here.
20. U.S. Gov't Accountability Office, About GAO (2011), available at http://gao.gov/about/gao_at_a_ glance_2010_english.pdf (on file with the Columbia Law Review). Since these offices have little influence on the drafting of statutes, they will not be discussed in depth here.
21. U.S. Gov't Accountability Office, About GAO (2011), available at http://gao.gov/about/gao_at_a_ glance_2010_english.pdf (on file with the Columbia Law Review). Since these offices have little influence on the drafting of statutes, they will not be discussed in depth here.
22. An article by Professors Garrett and Vermeule briefly mentions ALD and its role researching constitutional issues and providing testimony and written analysis, but their article provides no further detail on the scope of the office's work or its various functions. Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L.J. 1277, 1317 (2001) (proposing expansion of ALD or creation of new congressional office to provide Congress with more information on constitutional issues). A number of other articles briefly mention ALD without providing any substantive discussion of the role the office plays in the research and drafting process.
23. Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 Ga. L. Rev. 57, 98 (1986) (noting, in one sentence, ALD assists Congress in understanding constitutional questions).
24. James Cole, Kate Seikaly & P.J. Meitl, Exploring Every Avenue: The Dilemma Posed by Attorney-Client Privilege Assertions in Congress, 8 Appalachian J.L. 157, 166-67 (2009) (calling ALD "Congress's public policy research arm" and quoting document produced by ALD). The other articles that mention ALD do so only in reference to a document produced by the office. Search Results, WestlawNext, http://westlawnext.com (go to Secondary Sources; go to Law Reviews & Journals; search "American Law Division").
25. James Cole, Kate Seikaly & P.J. Meitl, Exploring Every Avenue: The Dilemma Posed by Attorney-Client Privilege Assertions in Congress, 8 Appalachian J.L. 157, 166-67 (2009) (calling ALD "Congress's public policy research arm" and quoting document produced by ALD). The other articles that mention ALD do so only in reference to a document produced by the office. Search Results, WestlawNext, http://westlawnext.com (go to Secondary Sources; go to Law Reviews & Journals; search "American Law Division").
26. For an interesting example of a Supreme Court Justice acknowledging, and deriding, the role of a lobbyist, see Kosak v. United States, 465 U.S. 848, 863 (1984) (Stevens, J., dissenting) ("The intent of a lobbyist-no matter how public spirited he may have been-should not be attributed to the Congress without positive evidence that elected legislators were aware of and shared the lobbyist's intent. ").
27. See Jonathan T. Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role, 53 Stan. L. Rev. 1, 7 (2000) (arguing Founders believed judicial review could serve as moderating influence on legislative process and help legislators to "internalize the judicial perspective-a politically insulated outlook on law-and formulate and articulate statutory goals with that perspective in mind").
28. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
29. See, e.g., Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1105 (1992) [hereinafter Zeppos, Empirical Analysis] (showing use of nontextual sources increased regularly until 1980s, when it suffered dramatic drop to levels not seen since 1930s).
30. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61-62 (1994) (advocating use of legislative history only in limited circumstances).
31. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) [hereinafter Eskridge, New Textualism] ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. ").
32. Eric Schnapper, Statutory Misinterpretations: A Legal Autopsy, 68 Notre Dame L. Rev. 1095, 1114, 1117-18 (1993) (describing disagreement over interaction between legislative history and plain meaning of statute).
33. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
34. Jerome Frank, Courts on Trial: Myth and Reality in American Justice 292 (1949).
35. Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.).
36. The 1970 Act also made other important changes to the structure of Congress. For example, it expanded the responsibilities of the GAO, which had previously performed only fiscal auditing services, to conducting cost-benefit studies of government programs. Legislative Reorganization Act of 1970 § 204(a), 84 Stat. at 1168. Another important change that came after the 1970 Act was the creation of the CBO, which was founded in 1974 with the enactment of the Congressional Budget and Impoundment Control Act, Pub. L. No. 93-344, §§ 201-203, 88 Stat. 297, 302-05 (1974). Although this office does not play a direct role in creating legislation, it employs economists and policy specialists to analyze the costs of federal programs and economic projections.
37. Legislative Reorganization Act of 1970 §§ 501-503, 521-526, 84 Stat. at 1201-03 (codified at 2 U.S.C. §§ 281-282 (2012) (establishing and outlining duties of modern House Office of the Legislative Counsel).
38. Matthew E. Glassman, Cong. Research Serv., RS20856, Office of Legislative Counsel: Senate 1 (2008), available at http://www.senate.gov/reference/ resources/pdf/RS20856.pdf (on file with the Columbia Law Review)
39. Revenue Act of 1918, ch. 18, § 1303, 50 Stat. 1057, 1141-42 (1919) (codified as amended at 2 U.S.C. §§ 271-272) (establishing Senate office).
40. Revenue Act of 1918, ch. 18, § 1303, 50 Stat. 1057, 1141-42 (1919) (codified as amended at 2 U.S.C. §§ 271-272) (establishing Senate office).
41. Legislative Reorganization Act of 1970 § 321(a), 84 Stat. at 1181-85.
42. Legislative Reorganization Act of 1970 § 321(a), 84 Stat. at 1181-85.
43. See Legislative Reorganization Act of 1970 §§ 101-132, 305, 84 Stat. at 1143-67, 1181 (outlining revisions to committee structure and prescribing pay for staffers).
44. See Legislative Reorganization Act of 1970 §§ 101-132, 305, 84 Stat. at 1143-67, 1181 (outlining revisions to committee structure and prescribing pay for staffers).
45. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
46. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
47. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
48. There are unavoidable dangers and biases with this format, as there are with any format of interviews. See generally Gary King et al., Designing Social Inquiry: Scientific Inference in Qualitative Research 6-7 (1994) (advocating improving quality of qualitative interviews by incorporating "scientific inference").
49. Helen Metzner & Floyd Mann, A Limited Comparison of Two Methods of Data Collection: The Fixed Alternative Questionnaire and the Open-Ended Interview, 17 Am. Soc. Rev. 486 (1952) (comparing differences in response between interviews conducted in person and those conducted anonymously via questionnaire).
50. Legislative Reorganization Act of 1970, Pub. L. No. 91-510, §§ 501-503, 84 Stat. 1140, 1201-02 (codified at 2 U.S.C. §§ 281-282 (2012) (establishing modern House office).
51. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
52. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 886 (2003).
53. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
54. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
55. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
56. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
57. 50 Cong. Rec. 2375-79 (1913) (statement of Sen. Augustus Bacon).
58. 50 Cong. Rec. 2375-79 (1913) (statement of Sen. Augustus Bacon).
59. 50 Cong. Rec. 2375-79 (1913) (statement of Sen. Augustus Bacon).
60. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
61. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
62. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
63. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
64. See Frederic P. Lee, The Office of the Legislative Counsel, 29 Colum. L. Rev. 381, 387 (1929) (describing creation of predecessors to Offices of the Legislative Counsel under Revenue Act of 1918).
65. Revenue Act of 1918, ch. 18, § 1303, 40 Stat. 1057, 1141-42 (1919).
66. Revenue Act of 1918, ch. 18, § 1303, 40 Stat. 1057, 1141-42 (1919).
67. Office of the Legislative Counsel, History and Charter, U.S. House of Representatives, http://house.gov/legcoun/HOLC/About_Our_Office/History_and_Charter.html (on file with the Columbia Law Review) (last visited Mar. 4, 2014) [hereinafter House Legislative Counsel, History] ("[T]he early work of the Office of the Legislative Counsel was focused primarily on projects for the Committee on Ways and Means....").
68. Comm. on Ways and Means, Committee History, U.S. House of Representatives, http://waysandmeans.house.gov/about/history.htm (on file with the Columbia Law Review) (last visited Mar. 4, 2014) ("The Committee on Ways and Means is the oldest committee of the United States Congress, and is the chief tax-writing committee in the House of Representatives. The Committee derives a large share of its jurisdiction from Article I, Section VII of the U.S. Constitution....").
69. Office of the Legislative Counsel, History and Charter, U.S. House of Representatives, http://house.gov/legcoun/HOLC/About_Our_Office/History_and_Charter.html (on file with the Columbia Law Review) (last visited Mar. 4, 2014) [hereinafter House Legislative Counsel, History] ("[T]he early work of the Office of the Legislative Counsel was focused primarily on projects for the Committee on Ways and Means....").
70. Pub. L. No. 91-510, §§ 501-503, 84 Stat. 1140, 1201-02 (codified at 2 U.S.C. §§ 281-282).
71. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
72. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
73. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
74. The offices use a customized version of Just System's XMetaL software to create legislative documents in Extensible Markup Language (commonly referred to as "XML") format. See Kirsten Gullickson, Powerpoint: XML in Process (2012), available at http:// xml.house.gov/2012/WePC2012-Presentation.zip (on file with the Columbia Law Review) (presenting on adoption of XML software in U.S. House of Representatives to World e-Parliament Conference).
75. See, e.g., Tobias A. Dorsey, Legislative Drafter's Deskbook: A Practical Guide 238 (2006). It is called tax style because it was first developed to deal with the complexity specific to tax laws. Id. It is widely used today as a way to break up large chunks of text and provide better organization for the reader.
76. See Staff of J. Comm. on Printing, 112th Cong., 2011-2012 Official Cong. Directory, S. Pub. No. 112-12, at 460-61 (2011) [hereinafter 2011 Congressional Directory].
77. Staff of J. Comm. on Printing, 94th Cong., Official Cong. Directory 430 (1975) [hereinafter 1975 Congressional Directory].
78. See Staff of J. Comm. on Printing, 112th Cong., 2011-2012 Official Cong. Directory, S. Pub. No. 112-12, at 460-61 (2011) [hereinafter 2011 Congressional Directory].
79. See Staff of J. Comm. on Printing, 112th Cong., 2011-2012 Official Cong. Directory, S. Pub. No. 112-12, at 460-61 (2011) [hereinafter 2011 Congressional Directory].
80. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
81. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
82. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 576 (2002).
83. See Staff of J. Comm. on Printing, 112th Cong., 2011-2012 Official Cong. Directory, S. Pub. No. 112-12, at 460-61 (2011) [hereinafter 2011 Congressional Directory].
84. Staff of J. Comm. on Printing, 110th Cong., Official Cong. Directory 384-85, 454 (2007).
85. Staff of J. Comm. on Printing, 108th Cong., Official Cong. Directory 381, 451 (2003).
86. Staff of J. Comm. on Printing, 106th Cong., Official Cong. Directory 385, 443 (1999).
87. Staff of J. Comm. on Printing, 104th Cong., Official Cong. Directory 539, 544 (1995).
88. Staff of J. Comm. on Printing, 102d Cong., Official Cong. Directory 619, 626-27 (1991).
89. Staff of J. Comm. on Printing, 100th Cong., Official Cong. Directory 708-09, 717-18 (1987).
90. Staff of J. Comm. on Printing, 98th Cong., Official Cong. Directory 447, 455 (1983).
91. Staff of J. Comm. on Printing, 96th Cong., Official Cong. Directory 402, 408-09 (1979).
92. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
93. This was a point of emphasis by legislative counsel and was something this author experienced first-hand as an intern in the office. This was not new, however. See, e.g., Hearings Before the J. Comm. on the Org. of the Cong., 89th Cong. 1182 (1965) (statement of John H. Simms, Senate Legislative Counsel) ("Because of the specialized nature of the work, a new member of the staff is of little value to the office until he has served in it for 2 or 3 years. Consequently, we have no interest in young lawyers who desire to work for [only] a few years.... ").
94. These salaries are regularly published online, most prominently at Legistorm, http://www.legistorm.com/salaries.html (on file with the Columbia Law Review) (last visited Apr. 2, 2014). An examination of a sample of assistant legislative counsel hired in the last five years reveals starting salaries between $72,000 and $76,000. Id. Their salary data and that of a sample of counsel who had worked for over five years show almost yearly pay raises.
95. Ida A. Brudnick, Cong. Research Serv., RL30064, Congressional Salaries and Allowances 10 tbl.2 (2014), available at http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270E, *PL[%3D%23P++%0A (on file with the Columbia Law Review) (explaining legislative counsel make $172,500 per year, while most House Representatives make $174,000 per year).
96. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
97. Office of the Legislative Counsel, History and Charter, U.S. House of Representatives, http://house.gov/legcoun/HOLC/About_Our_Office/History_and_Charter.html (on file with the Columbia Law Review) (last visited Mar. 4, 2014) [hereinafter House Legislative Counsel, History] ("[T]he early work of the Office of the Legislative Counsel was focused primarily on projects for the Committee on Ways and Means....").
98. Office of the Legislative Counsel, HOLC Guide to Legislative Drafting, U.S. House of Representatives, http://house.gov/legcoun/HOLC/Drafting_Legislation/Drafting _Guide.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014).
99. Office of the Legislative Counsel, U.S. House of Representatives, Introduction to Legislative Drafting (2013), available at http://house.gov/legcoun/HOLC/Drafting_ Legislation/intro_to_drafting.pdf (on file with the Columbia Law Review).
100. Office of the Legislative Counsel, Career Opportunities, U.S. House of Representatives, http://house.gov/legcoun/HOLC/Careers/Careers.html (on file with the Columbia Law Review) (last visited Mar. 4, 2013) ("Positions on the legal staff of the Office are filled by appointing attorneys who are recent law school graduates.").
101. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
102. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
103. Luke Rosiak, Congressional Staff Turnover by Year, Wash. Times, http://www. washingtontimes.com/interactive/congressional-staff-turnover/ (on file with the Columbia Law Review) (last visited Mar. 3, 2014).
104. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
105. Pub. L. No. 111-148, 124 Stat. 119 (2010).
106. Compare Robert Pear, It Should Be Called the Grossman Health Care Bill, N.Y. Times (Nov. 26, 1993), http://www.nytimes.com/1993/11/26/health/it-should-be-calledthe-grossman-health-care-bill.html (on file with the Columbia Law Review).
107. Office of the Legislative Counsel, Requesting Assistance, U.S. Senate, http://www.slc.senate.gov/Requests/requests.htm (on file with the Columbia Law Review) (last visited Mar. 3, 2014) [hereinafter Senate Legislative Counsel, Assistance].
108. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
109. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
110. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
111. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
112. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
113. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
114. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
115. Office of the Legislative Counsel, History and Charter, U.S. House of Representatives, http://house.gov/legcoun/HOLC/About_Our_Office/History_and_Charter.html (on file with the Columbia Law Review) (last visited Mar. 4, 2014) [hereinafter House Legislative Counsel, History] ("[T]he early work of the Office of the Legislative Counsel was focused primarily on projects for the Committee on Ways and Means....").
116. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
117. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
118. Office of the Legislative Counsel, History and Charter, U.S. House of Representatives, http://house.gov/legcoun/HOLC/About_Our_Office/History_and_Charter.html (on file with the Columbia Law Review) (last visited Mar. 4, 2014) [hereinafter House Legislative Counsel, History] ("[T]he early work of the Office of the Legislative Counsel was focused primarily on projects for the Committee on Ways and Means....").
119. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
120. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
121. Ian Urbina, Inspector General's Inquiry Faults Regulators, N.Y. Times (May 24, 2010), http://www.nytimes.com/2010/05/25/us/25mms.html (on file with the Columbia Law Review).
122. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
123. See Stop Cozy Relationships with Big Oil Act of 2010, S. 3431, 111th Cong. § 3 (2010).
124. Office of the Legislative Counsel, History and Charter, U.S. House of Representatives, http://house.gov/legcoun/HOLC/About_Our_Office/History_and_Charter.html (on file with the Columbia Law Review) (last visited Mar. 4, 2014) [hereinafter House Legislative Counsel, History] ("[T]he early work of the Office of the Legislative Counsel was focused primarily on projects for the Committee on Ways and Means....").
125. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
126. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
127. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
128. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
129. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
130. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
131. Cf., e.g., Stop Cozy Relationships with Big Oil Act of 2010, S. 3431, 111th Cong. §§ 2, 3(B) (2010) (providing definitions and exceptions in proposed statute).
132. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
133. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
134. Karen Ball, The Abandoned Children of Nebraska, Time (Nov. 18, 2008), http://content.time.com/time/nation/article/0,8599,1859405,00.html (on file with the Columbia Law Review).
135. Karen Ball, The Abandoned Children of Nebraska, Time (Nov. 18, 2008), http://content.time.com/time/nation/article/0,8599,1859405,00.html (on file with the Columbia Law Review).
136. See 123 Stat. (2009).
137. 119 Stat. (2005)
138. 115 Stat. (2001)
139. 111 Stat. (1997)
140. 107 Stat. (1993)
141. 103 Stat. (1989)
142. 99 Stat. (1985)
143. 95 Stat. (1981)
144. 91 Stat. (1977)
145. 87 Stat. (1974).
146. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
147. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
148. 19 U.S.C. § 1308(b)(2) (2012).
149. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
150. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
151. Lawrence E. Filson, The Legislative Drafter's Desk Reference 217-18 (1992).
152. Lawrence E. Filson & Sandra L. Strokoff, The Legislative Drafter's Desk Reference 367-85 (2d ed. 2008).
153. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
154. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
155. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
156. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
157. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
158. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
159. Finley v. United States, 490 U.S. 545, 556 (1989).
160. Judicial Improvements Act of 1990, Pub. L. No. 101-650, sec. 310(a), § 1367, 104 Stat. 5113
161. Exxon Mobil Corp. v. Allapattah Servs. Inc., 545 U.S. 546 (2005).
162. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
163. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
164. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
165. Luke Rosiak, Congressional Staff Turnover by Year, Wash. Times, http://www. washingtontimes.com/interactive/congressional-staff-turnover/ (on file with the Columbia Law Review) (last visited Mar. 3, 2014).
166. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
167. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
168. Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.).
169. Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.).
170. Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.).
171. Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.).
172. Office of the Legislative Counsel, Responsibilities of the Legislative Drafter, U.S. Senate, http://www.slc.senate.gov/Drafting/drafting.htm (on file with the Columbia Law Review) (last visited Mar. 27, 2014) [hereinafter Senate Legislative Counsel, Responsibilities] (reporting number of requests in last five Congresses rose from 20,757 to 40,079).
173. E.g., Elizabeth Williamson, You'd Know if You Were Congressional, Wash. Post (Mar. 22, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/03/21/ AR2007032102043.html (on file with the Columbia Law Review).
174. Walter Kravitz, The Advent of the Modern Congress: The Legislative Reorganization Act of 1970, 15 Leg. Stud. Q. 375, 383 (1990).
175. Cong. Research Serv., History and Mission, Library of Cong., http://loc.gov/crs info/about/history.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014).
176. Legislative Reorganization Act of 1970, Pub. L. No. 91-510, sec. 321(a), § 203, 84 Stat. 1140, 1181-85 (codified at 2 U.S.C. § 166 (2012).
177. Daniel P. Mulhollan, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2010, at 2 (2011), available at http://loc.gov/crsinfo/about/crs10_annrpt.pdf (on file with the Columbia Law Review).
178. Walter Kravitz, The Advent of the Modern Congress: The Legislative Reorganization Act of 1970, 15 Leg. Stud. Q. 375, 383 (1990).
179. Walter Kravitz, The Advent of the Modern Congress: The Legislative Reorganization Act of 1970, 15 Leg. Stud. Q. 375, 383 (1990).
180. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
181. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
182. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 8-23 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
183. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
184. Cong. Research Serv., Organizational Structure, Library of Cong., http://loc. gov/crsinfo/about/structure.html (on file with the Columbia Law Review) (last updated Nov. 20, 2012).
185. Cong. Research Serv., Areas of Research, Library of Cong., http://loc.gov/ crsinfo/research/ (on file with the Columbia Law Review) (last updated Nov. 20, 2012).
186. ALD is divided into four research sections that each have broad responsibilities: Administrative Law, Business, Congress, and Natural Resources. Cong. Research Serv., American Law Division, Library of Cong., http://loc.gov/crsinfo/research/div-ald.html (on file with the Columbia Law Review) (last updated Feb. 12, 2013) [hereinafter Cong. Research Serv., American Law Division].
187. Defense Policy and Arms Control.
188. Defense Budget, Manpower, and Management.
189. Europe and the Americas.
190. Foreign Policy Management and Global Issues.
191. International Trade and Finance; and Middle East/Africa. Cong. Research Serv., Foreign Affairs, Defense and Trade Division, Library of Cong., http://loc.gov/crsinfo/ research/div-fdt.html (on file with the Columbia Law Review) (last updated Feb. 12, 2013). The Government and Finance Division is divided into six research groups: Banking, Insurance, Securities, and Macroeconomic Policy.
192. Congress and Judiciary.
193. Executive Branch Operations.
194. Federalism and Emergency Management.
195. Government Finance and Taxation; and Legislative and Budget Process. Cong. Research Serv., Government and Finance Division, Library of Cong., http://loc.gov/crsinfo/research/div-gf.html (on file with the Columbia Law Review) (last updated Feb. 12, 2013). And finally, the Resources, Science, and Industry Division has six subdivisions: Agriculture and Food Supply.
196. Energy and Minerals.
197. Environmental Policy.
198. Natural Resources and Earth Sciences.
199. Science and Technology Policy; and Transportation and Industry Analysis. Cong. Research Serv., Resources, Science and Industry Division, Library of Cong., http://loc.gov/crsinfo/ research/div-rsi.html (on file with the Columbia Law Review) (last updated Feb. 12, 2013).
200. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
201. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
202. Ida A. Brudnick, Cong. Research Serv., RL33471, The Congressional Research Service and the American Legislative Process 9 (2011) [hereinafter CRS Legislative Process Report], available at http://www.fas.org/sgp/crs/misc/RL33471.pdf (on file with the Columbia Law Review).
203. Ida A. Brudnick, Cong. Research Serv., RL33471, The Congressional Research Service and the American Legislative Process 9 (2011) [hereinafter CRS Legislative Process Report], available at http://www.fas.org/sgp/crs/misc/RL33471.pdf (on file with the Columbia Law Review).
204. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
205. Ida A. Brudnick, Cong. Research Serv., RL33471, The Congressional Research Service and the American Legislative Process 9 (2011) [hereinafter CRS Legislative Process Report], available at http://www.fas.org/sgp/crs/misc/RL33471.pdf (on file with the Columbia Law Review).
206. Matthew E. Glassman, Cong. Research Serv., RS20856, Office of Legislative Counsel: Senate 1 (2008), available at http://www.senate.gov/reference/ resources/pdf/RS20856.pdf (on file with the Columbia Law Review)
207. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
208. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
209. Cong. Research Serv., ALD Profile 1 (2012) [hereinafter ALD Profile], available at https://www.flmd.uscourts.gov/CareerOps/ALD_Profile-07-2012.pdf (on file with the Columbia Law Review).
210. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
211. See Jody Feder, Library of Congress, Congressional Research Service-American Law Division, in Career Dev. Office, Yale Law Sch., Working on Capitol Hill 24, 25 (2012), available at http://www.law.yale.edu/documents/pdf/CDO_Public/2012_Guide_Body_ Public.pdf (on file with the Columbia Law Review) ("Typically, the law division has the authority to hire between one and four new lawyers each year, and they tend to hire only recent graduates (i.e., third-year law students)....").
212. Cong. Research Serv., ALD Profile 1 (2012) [hereinafter ALD Profile], available at https://www.flmd.uscourts.gov/CareerOps/ALD_Profile-07-2012.pdf (on file with the Columbia Law Review).
213. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
214. See Jody Feder, Library of Congress, Congressional Research Service-American Law Division, in Career Dev. Office, Yale Law Sch., Working on Capitol Hill 24, 25 (2012), available at http://www.law.yale.edu/documents/pdf/CDO_Public/2012_Guide_Body_ Public.pdf (on file with the Columbia Law Review) ("Typically, the law division has the authority to hire between one and four new lawyers each year, and they tend to hire only recent graduates (i.e., third-year law students)....").
215. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
216. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
217. 131 S. Ct. 2541 (2011).
218. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
219. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
220. See Jody Feder, Library of Congress, Congressional Research Service-American Law Division, in Career Dev. Office, Yale Law Sch., Working on Capitol Hill 24, 25 (2012), available at http://www.law.yale.edu/documents/pdf/CDO_Public/2012_Guide_Body_ Public.pdf (on file with the Columbia Law Review) ("Typically, the law division has the authority to hire between one and four new lawyers each year, and they tend to hire only recent graduates (i.e., third-year law students)....").
221. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
222. Cong. Research Serv., About CRS, Library of Cong., http://loc.gov/crsinfo/ about/ (on file with the Columbia Law Review) (last updated May 1, 2013).
223. Ida A. Brudnick, Cong. Research Serv., RL33471, The Congressional Research Service and the American Legislative Process 9 (2011) [hereinafter CRS Legislative Process Report], available at http://www.fas.org/sgp/crs/misc/RL33471.pdf (on file with the Columbia Law Review).
224. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
225. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
226. Jennifer Staman & Cynthia Brougher, Cong. Research Serv., R40725, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis (2009) [hereinafter CRS Health Report], available at http://assets.opencrs.com/rpts/R40725_20090724.pdf (on file with the Columbia Law Review).
227. Florida v. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1284 (N.D. Fla. 2011).
228. Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011)
229. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
230. Larry M. Eig, Cong. Research Serv., 97-589, Statutory Interpretation: General Principles and Recent Trends (2011), available at http://mspbwatch.files.wordpress.com/ 2013/02/statutory-interpretation-general-principles-and-recent-trends.pdf (on file with the Columbia Law Review).
231. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
232. See Open CRS, https://opencrs.com/document/97-589/ (on file with the Columbia Law Review).
233. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
234. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
235. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
236. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
237. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
238. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
239. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
240. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
241. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
242. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
243. E.g., Elizabeth Williamson, You'd Know if You Were Congressional, Wash. Post (Mar. 22, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/03/21/ AR2007032102043.html (on file with the Columbia Law Review).
244. Cong. Research Serv., American Law Division (ALD) (Apr. 2011) [hereinafter ALD Pamphlet] (on file with the Columbia Law Review). ALD publishes reports on virtually every area in which Congress legislates. For example, a list of subject areas and reports covered by ALD, provided by the office, includes Agriculture, Campaign Finance, Communications, Constitution, Criminal Law, Energy, Environment, Health, Intellectual Property, Lobbying, Military, Nuclear Energy, Procurement, Social Security, Terrorism, Tort Reform, and Trade.
245. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
246. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
247. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
248. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/16program. html (on file with the Columbia Law Review).
249. Michael John Garcia et al., Cong. Research Serv., R40139, Closing the Guantanamo Detention Center: Legal Issues (2009), available at http://assets.opencrs.com/rpts/R40139_20090115.pdf (on file with the Columbia Law Review).
250. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
251. For example, ALD publishes a comprehensive report on constitutional issues that it regularly updates according to recent cases, commonly known as the Constitution Annotated. Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 112-9 (2013), available at http://beta.congress.gov/content/conan/pdf/GPO-CONAN-2013.pdf (on file with the Columbia Law Review).
252. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
253. Mary B. Mazanec, Cong. Research Serv., Annual Report of the Congressional Research Service of the Library of Congress for Fiscal Year 2012, at 1 (2013) [hereinafter CRS Annual Report 2012], available at http://loc.gov/crsinfo/about/crs12_annrpt.pdf (on file with the Columbia Law Review).
254. Cong. Research Serv., American Law Division (ALD) (Apr. 2011) [hereinafter ALD Pamphlet] (on file with the Columbia Law Review). ALD publishes reports on virtually every area in which Congress legislates. For example, a list of subject areas and reports covered by ALD, provided by the office, includes Agriculture, Campaign Finance, Communications, Constitution, Criminal Law, Energy, Environment, Health, Intellectual Property, Lobbying, Military, Nuclear Energy, Procurement, Social Security, Terrorism, Tort Reform, and Trade.
255. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
256. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
257. Interview with Members of the Am. Law Div. in Washington, D.C. (May 19, 2011) [hereinafter ALD Interview] (on file with the Columbia Law Review).
258. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
259. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
260. Senator Robert C. Byrd expressed the concern of congresspersons that hiring too many staff would make it look like they were unable "to carry traditional legislative burdens. " 1 Robert C. Byrd, The Senate, 1789-1989: Addresses on the History of the United States Senate 538 (1988).
261. Richard Allan Baker, The Senate of the United States: A Bicentennial History 89-90 (1988) (expressing concern of senior congresspersons over creation of political class capable of competing for their jobs).
262. William L. Morrow, Congressional Committees 52 (1969).
263. Harrison W. Fox, Jr. & Susan Webb Hammond, Congressional Staffs: The Invisible Force in American Lawmaking 15 (1977).
264. Harrison W. Fox, Jr. & Susan Webb Hammond, Congressional Staffs: The Invisible Force in American Lawmaking 15 (1977).
265. Pub. L. No. 79-601, 60 Stat. 812.
266. George B. Galloway, The Operation of the Legislative Reorganization Act of 1946, 45 Am. Pol. Sci. Rev. 41, 54 (1951).
267. In 1995, Republicans revised House rules to restructure the operations of committees. They directed that all committee staff be cut by one-third and reduced the reliance on subcommittees. See Contract with America: A Bill of Accountability, H.R. Res. 6, 104th Cong. (1995).
268. Norman J. Ornstein, Thomas E. Mann, Michael J. Malbin & Andrew Rugg, Vital Statistics on Congress 172 tbl.5-5 (2013), available at http://www.brookings.edu/~/media /Research/Files/Reports/2013/07/vital%20statistics%20congress%20mann%20ornstein/Vital %20Statistics%20Full%20Data%20Set.pdf (on file with the Columbia Law Review).
269. Staff of J. Comm. on Printing, 91st Cong., Official Cong. Directory 277, 280 (1970). During the same period on the Senate side, the Appropriations Committee staff increased from thirty-eight to seventy-five, and the Judiciary Committee staff went from twelve to twenty-eight.
270. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
271. Barbara Sinclair, An Effective Congress and Effective Members: What Does It Take?, 29 PS: Pol. Sci. & Pol. 435, 438 (1996) ("To some extent, senators can substitute staff expertise for personal expertise, and in both chambers the increase in staff has made it possible for members to involve themselves effectively in more issues than used to be possible. ").
272. Barbara Sinclair, An Effective Congress and Effective Members: What Does It Take?, 29 PS: Pol. Sci. & Pol. 435, 438 (1996) ("To some extent, senators can substitute staff expertise for personal expertise, and in both chambers the increase in staff has made it possible for members to involve themselves effectively in more issues than used to be possible. ").
273. T.W. Farnam, Revolving Door of Employment Between Congress, Lobbying Firms, Study Shows, Wash. Post (Sept. 13, 2011), http://www.washingtonpost.com/politics/study-showsrevolving-door-of-employment-between-congress-lobbying-firms/2011/09/12/gIQAxPYROK _story.html (on file with the Columbia Law Review) ("Nearly 5,400 former congressional staffers have left Capitol Hill to become federal lobbyists in the past 10 years....").
274. Lee Drutman, Turnover in the House: Who Keeps-and Who Loses-the Most Staff, Sunlight Found. (Feb. 6, 2012, 12:01 AM), http://sunlightfoundation.com/blog/ 2012/02/06/turnover-in-the-house/ (on file with the Columbia Law Review) (noting "[committee] staff are generally partisan" and predicting "higher rates of turnover on committees, since the majority turned over from Democrats to Republicans in January 2011, and the majority party typically gets two-thirds of the staff on House committees").
275. See Jody Feder, Library of Congress, Congressional Research Service-American Law Division, in Career Dev. Office, Yale Law Sch., Working on Capitol Hill 24, 25 (2012), available at http://www.law.yale.edu/documents/pdf/CDO_Public/2012_Guide_Body_ Public.pdf (on file with the Columbia Law Review) ("Typically, the law division has the authority to hire between one and four new lawyers each year, and they tend to hire only recent graduates (i.e., third-year law students)....").
276. See Jody Feder, Library of Congress, Congressional Research Service-American Law Division, in Career Dev. Office, Yale Law Sch., Working on Capitol Hill 24, 25 (2012), available at http://www.law.yale.edu/documents/pdf/CDO_Public/2012_Guide_Body_ Public.pdf (on file with the Columbia Law Review) ("Typically, the law division has the authority to hire between one and four new lawyers each year, and they tend to hire only recent graduates (i.e., third-year law students)....").
277. Lee Drutman, Turnover in the House: Who Keeps-and Who Loses-the Most Staff, Sunlight Found. (Feb. 6, 2012, 12:01 AM), http://sunlightfoundation.com/blog/ 2012/02/06/turnover-in-the-house/ (on file with the Columbia Law Review) (noting "[committee] staff are generally partisan" and predicting "higher rates of turnover on committees, since the majority turned over from Democrats to Republicans in January 2011, and the majority party typically gets two-thirds of the staff on House committees").
278. Harrison W. Fox, Jr. & Susan Webb Hammond, Congressional Staffs: The Invisible Force in American Lawmaking 15 (1977).
279. Harrison W. Fox, Jr. & Susan Webb Hammond, Congressional Staffs: The Invisible Force in American Lawmaking 15 (1977).
280. Michael J. Malbin, Unelected Representatives 12 (1980) (noting control committee chairs exert over committee staff).
281. See Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. 205, 233-37 (2013) (presenting data on increased political polarization of Congress).
282. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
283. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
284. M. Douglass Bellis, Drafting in the U.S. Congress, 22 Statute L. Rev. 38, 42-44 (2001) ("Another function of the legislative drafter in the United States is to provide a sort of neutral mediation service among the various political factions. ").
285. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
286. Modern lobbyist reporting began with the Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (codified as amended in scattered sections of 2, 5, 18, and 22 U.S.C.).
287. See Ctr. for Responsive Politics, Lobbying Database, OpenSecrets. org, http:// www.opensecrets.org/lobby/index.php (on file with the Columbia Law Review) (last visited Mar. 9, 2014) (collecting data on spending on lobbying).
288. LDA Reports, U.S. Senate, https://www.senate.gov/legis lative/Public_Disclosure/LDA_reports.htm (on file with the Columbia Law Review) (last visited Mar. 9, 2014).
289. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
290. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
291. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
292. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
293. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
294. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
295. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
296. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
297. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
298. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
299. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
300. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 576 (2002).
301. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
302. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
303. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
304. Eric Lipton & Ben Protess, Banks' Lobbyists Help in Drafting Financial Bills, N.Y. Times: Dealbook (May 23, 2013, 9:44 PM), http://dealbook.nytimes.com/2013/05/23/banks-lobbyists-help-in-drafting-financialbills/ (on file with the Columbia Law Review) (describing role lobbyists play in drafting and amending statutory language).
305. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
306. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
307. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
308. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
309. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
310. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
311. See 1 CQ Press, Guide to Congress 836-37 (7th ed. 2013) (noting many who seek to influence Congress do not fit legal definition of "lobbyist").
312. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61-62 (1994) (advocating use of legislative history only in limited circumstances).
313. Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 43 (2006) ("[W]e are all textualists in an important sense. ").
314. Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. Rev 1023, 1057 (1998) ("[W]e are all textualists now. "). This does not mean, of course, that significant variance in the application of nontextual methods does not exist.
315. David S. Law & David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 Wm. & Mary L. Rev. 1653, 1659 (2010) ("[T]he propensity of Justices to cite legislative history is significantly correlated with the ideology of the Justices themselves.... ").
316. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
317. James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 495-96 (2013) (describing Court's increased practice of using dictionary definitions of specific statutory terms).
318. See, e.g., Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1105 (1992) [hereinafter Zeppos, Empirical Analysis] (showing use of nontextual sources increased regularly until 1980s, when it suffered dramatic drop to levels not seen since 1930s).
319. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) [hereinafter Eskridge, New Textualism] ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. ").
320. James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 Judicature 220, 229 (2006) ("Justice Scalia has played an important role in the Court's declining use of this resource-both through high profile resistance and criticism expressed in his own opinions, and through the influence he seems to have had on the writings of his colleagues. ").
321. James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 Berkeley J. Emp. & Lab. L. 117, 122 (2008) (discussing effects of Justice Scalia's opposition to legislative history on Court colleagues).
322. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
323. 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, 386-87 (1999) (identifying decline in use of legislative history since Justice Scalia's appointment to Court).
324. See, e.g., Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 Duke L.J. 1895, 1904-07 (2009) (urging scholars to design empirical studies considering factors other than politics).
325. Mark Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 Am. Pol. Sci. Rev. 305, 305 (2002) (noting "[s]cholars have marshaled impressive evidence that the justices and lower court judges seek to advance their own policy preferences" but "lost in these developments is... jurisprudence").
326. Brian Z. Tamanaha, The Distorting Slant in Quantitative Studies of Judging, 50 B.C. L. Rev. 685, 687-89 (2009) ("The judicial politics field was born in a congeries of false beliefs, and those false beliefs warped its orientation and development. ").
327. Aharon Barak, Purposive Interpretation in Law 20 (2010) ("Constitutional considerations of democracy, rule of law, and separation of powers bar judges from conferring on the language of a statute a meaning that it cannot bear. ").
328. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1375 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("The proposition that a court ought never to give the words of a statute a meaning they will not bear is a corollary of the proposition[] that courts are bound to respect the constitutional position of the legislature.... ").
329. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1375 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("The proposition that a court ought never to give the words of a statute a meaning they will not bear is a corollary of the proposition[] that courts are bound to respect the constitutional position of the legislature.... ").
330. See John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1307 (2010) (describing equilibrium reached by Supreme Court whereby justices pay close attention to text but are unwilling to exclude use of legislative history).
331. See John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1307 (2010) (describing equilibrium reached by Supreme Court whereby justices pay close attention to text but are unwilling to exclude use of legislative history).
332. See John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1307 (2010) (describing equilibrium reached by Supreme Court whereby justices pay close attention to text but are unwilling to exclude use of legislative history).
333. See John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1307 (2010) (describing equilibrium reached by Supreme Court whereby justices pay close attention to text but are unwilling to exclude use of legislative history).
334. See, e.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1884-99 (2008) (arguing stare decisis should be accorded to methods of statutory interpretation).
335. Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as "Law" and the Erie Doctrine, 120 Yale L.J. 1898, 1905 (2011) (arguing federal courts should treat state statutory-interpretation methodology as "law").
336. 143 U.S. 457 (1892).
337. 143 U.S. 457 (1892).
338. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1837-39 (1998) (providing negative view of decision in Holy Trinity and of legislative history as interpretative source).
339. Chapter 12 of title 8 of the U.S. Code contains the modern laws relating to immigration and nationality. 8 U.S.C. §§ 1101-1537 (2012). This 480-page chapter contains over thirteen pages of detailed definitions.
340. Chapter 12 of title 8 of the U.S. Code contains the modern laws relating to immigration and nationality. 8 U.S.C. §§ 1101-1537 (2012). This 480-page chapter contains over thirteen pages of detailed definitions.
341. Merck & Co. v. Reynolds, 130 S. Ct. 1784, 1795 (2010). Numerous examples exist in just the last few years where the Court has claimed that Congress must have been aware of one of its decisions.
342. Milner v. Dep't of Navy, 131 S. Ct. 1259, 1274 (2011) (Breyer, J., dissenting).
343. Holland v. Florida, 130 S. Ct. 2549, 2561 (2010) ("Congress enacted AEDPA after Irwin and therefore was likely aware that courts, when interpreting AEDPA's timing provisions, would apply the presumption. ").
344. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1626 (2010) (Scalia, J., concurring in part and concurring in the judgment) (noting "it may be reasonable to assume that Congress was aware of those holdings, took them to be correct, and intended the same meaning in adopting that text" but asserting assumption unreasonable in this case).
345. Mac's Shell Serv., Inc. v. Shell Oil Prods. Co., 130 S. Ct. 1251, 1259 (2010) ("At the time when it enacted the statute, Congress presumably was aware of how courts applied the doctrine of constructive termination in these analogous legal contexts. ").
346. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2492 (2009).
347. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991).
348. Lorillard, 434 U.S. at 580-81.
349. Riegel v. Medtronic, Inc., 552 U.S. 312, 337 n.7 (2008).
350. Medtronic, Inc. v. Lohr, 518 U.S. 470, 491 (1996) (internal quotation marks omitted).
351. United States v. Booker, 543 U.S. 220, 287 n.10 (2005) (Stevens, J., dissenting in part) ("[T]he fact that Congress is presumably aware of the Government's practices in light of Apprendi, yet has not condemned the practices or taken any actions to reform them, indicates that limited jury factfinding is, contrary to the majority's assertion, compatible with the legislative intent. ").
352. United States v. Booker, 543 U.S. 220, 287 n.10 (2005) (Stevens, J., dissenting in part) ("[T]he fact that Congress is presumably aware of the Government's practices in light of Apprendi, yet has not condemned the practices or taken any actions to reform them, indicates that limited jury factfinding is, contrary to the majority's assertion, compatible with the legislative intent. ").
353. See United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988).
354. 434 U.S. at 581.
355. 434 U.S. at 581.
356. It may also be possible, although less likely, that a new statute that uses borrowed language embodies policies or compromises different from those in the earlier statutes. Professional drafters would likely be aware of any such differences and strive to draft the statute in a way that distinguishes the new statute from the old where appropriate.
357. See, e.g., Morton v. Mancari, 417 U.S. 535, 551 (1974).
358. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) [hereinafter Eskridge, New Textualism] ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. ").
359. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) [hereinafter Eskridge, New Textualism] ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. ").
360. See, e.g., Doe v. Chao, 540 U.S. 614, 620 (2004) (interpreting statutory provision by looking to immediately preceding provision).
361. Kokoszka v. Belford, 417 U.S. 642, 650 (1974).
362. Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857) (internal quotation marks omitted).
363. United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) (noting whole act should be "critically examined").
364. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 654 (2007).
365. Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (finding interpretation of "drug abuse" discordant with "phrase's consistent use throughout the statute").
366. Conroy v. Aniskoff, 507 U.S. 511, 516 (1993) (finding "comprehensive character of the entire statute" indicates congressional intent).
367. King v. St. Vincent's Hosp., 502 U.S. 215, 220-21 (1991) ("Given the examples of affirmative limitations on reemployment benefits conferred by neighboring provisions, we infer that the simplicity of subsection (d) was deliberate. ").
368. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) [hereinafter Eskridge, New Textualism] ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. ").
369. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
370. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
371. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
372. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
373. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
374. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 51, 61 (2012) ("The canons influence not just how courts approach texts but also the techniques that legal drafters follow in preparing those texts. ").
375. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
376. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61-62 (1994) (advocating use of legislative history only in limited circumstances).
377. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) [hereinafter Eskridge, New Textualism] ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. ").
378. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
379. Eric Schnapper, Statutory Misinterpretations: A Legal Autopsy, 68 Notre Dame L. Rev. 1095, 1114, 1117-18 (1993) (describing disagreement over interaction between legislative history and plain meaning of statute).
380. See, e.g., FEC v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986) (claiming "wellrecognized phenomenon of deliberate manipulation of legislative history at the committee level [can] achieve what likely cannot be won before Congress as a whole").
381. Wallace v. Christensen, 802 F.2d 1539, 1560 (9th Cir. 1986) (en banc) (Kozinski, J., concurring in the judgment) ("Reports are usually written by staff or lobbyists, not legislators; few if any legislators read the reports.... ").
382. See, e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61-62 (1994) (advocating use of legislative history only in limited circumstances).
383. Kenneth W. Starr, Observations About the Use of Legislative History, 1987 Duke L.J. 371, 376 ("Lobbyists maneuver to get their clients' opinions into the mass of legislative materials.... ").
384. Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring in part and concurring in the judgment).
385. Michael Sinclair, The Proper Treatment of "Interpretive Choice" in Statutory Decision-Making, 45 N.Y.L. Sch. L. Rev. 389, 405 n.73 (2002) (calling Justice Scalia's concurrence in Blanchard "justifiably famous").
386. See James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. 1, 53-54 (1994) ("Accordingly, there is no reason to conclude that committee-drafted legislative history is significantly less imputable to Congress than committee-drafted text. The same actors who draft legislative history are involved in drafting statutory language, monitoring the amendment process, and advising legislators about which way to vote. ").
387. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 576 (2002).
388. Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 Va. L. Rev. 1295, 1312-13 (1990) [hereinafter Zeppos, Legislative History] ("The same staff/lobbyist involvement that the textualist decries in the drafting of legislative history occurs in creating the text of a bill. Virtually no members of Congress draft their own legislation. ").
389. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
390. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
391. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
392. John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 687-88 (1997) ("Actual statutory language is the dearest legislative commodity, and so once legislators become aware that legislative history influences courts, they and their agents (the staff) will try to achieve desired outcomes through the lowercost mechanism of legislative history. " (citation omitted).
393. See, e.g., Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1105 (1992) [hereinafter Zeppos, Empirical Analysis] (showing use of nontextual sources increased regularly until 1980s, when it suffered dramatic drop to levels not seen since 1930s).
394. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
395. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
396. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
397. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
398. Sandra Strokoff, Office of the Legislative Counsel, How Our Laws Are Made: A Ghost Writer's View, U.S. House of Representatives, http://house.gov/legcoun/HOLC/ Before_Drafting/Ghost_Writer.html (on file with the Columbia Law Review) (last visited Mar. 3, 2014) ("[D]rafting legislation is without question a matter of on-the-job training. For up to two years, a new attorney... works under the tutelage of a senior attorney in preparing for introduction a wide variety of bills to gain as much experience as possible in developing drafting skills....").
399. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
400. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
401. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
402. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
403. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
404. Lee Fang, Lobbyists Snag Top Staff Positions on Capitol Hill, Nation (May 9, 2013, 11:52 AM), http://www.thenation.com/blog/174257/lobbyists-snag-top-staff-positionscapitol-hill (on file with the Columbia Law Review).
405. T.W. Farnam, Revolving Door of Employment Between Congress, Lobbying Firms, Study Shows, Wash. Post (Sept. 13, 2011), http://www.washingtonpost.com/politics/study-showsrevolving-door-of-employment-between-congress-lobbying-firms/2011/09/12/gIQAxPYROK _story.html (on file with the Columbia Law Review) ("Nearly 5,400 former congressional staffers have left Capitol Hill to become federal lobbyists in the past 10 years....").
406. See James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. 1, 53-54 (1994) ("Accordingly, there is no reason to conclude that committee-drafted legislative history is significantly less imputable to Congress than committee-drafted text. The same actors who draft legislative history are involved in drafting statutory language, monitoring the amendment process, and advising legislators about which way to vote. ").
407. See Richard A. Posner, How Judges Think 194 (2008) ("Some strict constructionists argue that imaginative reconstruction of a legislature's purposes is impossible because there is no such thing as 'collective intent'; there is just the intent of the individual legislators who vote for or against a statute. That is the autistic theory of interpretation. ").
408. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
409. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
410. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
411. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
412. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
413. Indeed, even the Supreme Court, a small and relatively homogenous group, must use ambiguity or avoid critical issues in order to gain the necessary votes to create a majority opinion. See, e.g., Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3-74 (2000).
414. Transcript of Oral Argument at 23.
415. Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001) (No. 99-2036), available at http://www.supremecourt.gov/oral_arguments/argu ment_transcripts/99-2036.pdf (on file with the Columbia Law Review).
416. Interview with Members of Comm. Staff in Washington, D.C. (May 18, 2011) [hereinafter Committee Staff Interview] (on file with the Columbia Law Review).
417. Interview with Members of the House Office of the Legislative Counsel in Washington, D.C. (Apr. 16, 2011) [hereinafter Legislative Counsel Interview] (on file with the Columbia Law Review).
418. 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, 650-66 (2002) (contending PSLRA "would not have been enacted but for the legislative agreement to disagree over the interpretation of the 'strong inference' standard").
419. § 101, 109 Stat. at 747 (emphasis added).
420. § 101, 109 Stat. at 747 (emphasis added).
421. H.R. 10, 104th Cong. § 204 (1995) (requiring plaintiff to show defendant "knew [the] statement was misleading at the time... made, or intentionally omitted to state a fact knowing that such omission would render [it] misleading").
422. See S. Rep. No. 104-98, at 15 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 694 ("[T]he Committee chose a uniform standard modeled upon the pleading standard of the Second Circuit. ").
423. The Statement of Managers in the Conference Report, drafted and controlled by the Republicans, stated that "[b]ecause the Conference Committee intends to strengthen existing pleading requirements, it does not intend to codify the Second Circuit's case law interpreting this pleading standard. " H.R. Rep. No. 104-369, at 41 (1995) (Conf. Rep.).
424. The Statement of Managers in the Conference Report, drafted and controlled by the Republicans, stated that "[b]ecause the Conference Committee intends to strengthen existing pleading requirements, it does not intend to codify the Second Circuit's case law interpreting this pleading standard. " H.R. Rep. No. 104-369, at 41 (1995) (Conf. Rep.).
425. The Statement of Managers in the Conference Report, drafted and controlled by the Republicans, stated that "[b]ecause the Conference Committee intends to strengthen existing pleading requirements, it does not intend to codify the Second Circuit's case law interpreting this pleading standard. " H.R. Rep. No. 104-369, at 41 (1995) (Conf. Rep.).
426. The Statement of Managers in the Conference Report, drafted and controlled by the Republicans, stated that "[b]ecause the Conference Committee intends to strengthen existing pleading requirements, it does not intend to codify the Second Circuit's case law interpreting this pleading standard. " H.R. Rep. No. 104-369, at 41 (1995) (Conf. Rep.).
427. 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, 650-66 (2002) (contending PSLRA "would not have been enacted but for the legislative agreement to disagree over the interpretation of the 'strong inference' standard").
428. In Johnson v. Tellabs, Inc., a district court interpreted the pleading standard as being extremely strict and dismissed the complaint. 262 F. Supp. 2d 937, 945 (N.D. Ill. 2003).
429. Helwig v. Vencor, Inc., 251 F.3d 540, 553 (6th Cir. 2001).
430. 551 U.S. 308, 321-22 (2007).
431. H.R. Rep. No. 104-369, at 41 (1995) (Conf. Rep.).
432. Tellabs, 551 U.S. at 322.
433. Tellabs, 551 U.S. at 322.
434. U.S. Const. art. I, § 7, cl. 2 (requiring bicameralism and presentment for laws).
435. This quote was attributed to Judge Harold Leventhal by Judge Patricia Wald. Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983).
436. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in the judgment).
437. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
438. It is possible for the minority to contest the language of a committee report if it thinks that the report mischaracterizes the statute. This challenge could potentially avoid problems by indicating to the courts which language is strategically ambiguous. But contesting a committee report requires committee staff to use significant resources policing each other on something that courts may or may not use. It is unrealistic to expect minority staff to spend hours poring through the majority's work, constantly looking for any attempt to game the legislative history. Also, the "looking out over the crowd to find your friends" problem would still exist, because courts could use the majority language in the committee report as their guide, claiming that it represents what the majority thought the statute should mean even though it could not get sufficient support to pass the language through the Article I, Section 7 requirements.
439. Holy Trinity Church v. United States, 143 U.S. 457 (1892).
440. Carlos E. González, Turning Unambiguous Statutory Materials into Ambiguous Statutes: Ordering Principles, Avoidance, and Transparent Justification in Cases of Interpretive Choice, 61 Duke L.J. 583, 587 n.14 (2011).
441. John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1946 & n.27 (2011).
442. Peter J. Smith, Textualism and Jurisdiction, 108 Colum. L. Rev. 1883, 1899 & n.66 (2008).
443. Alien Contract Labor Law, ch. 164, 23 Stat. 332, 332 (1885).
444. Alien Contract Labor Law, ch. 164, 23 Stat. 332, 332 (1885).
445. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming Apr. 2014) (manuscript at 3) [hereinafter Gluck & Bressman, Part II], available at http://ssrn.com/abstract=2358074 (on file with the Columbia Law Review) (exploring influences on statutory-drafting process beyond judicial interpretive rules).
446. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
447. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1375 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("The proposition that a court ought never to give the words of a statute a meaning they will not bear is a corollary of the proposition[] that courts are bound to respect the constitutional position of the legislature.... ").
448. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
449. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
450. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
451. In their textbook, Professors Eskridge, Frickey, and Garrett directly challenge textualist interpretation on this point: "[I]t cannot be accurately characterized as a humble procedural decision designed to improve the legislative process if empirical research demonstrates that such improvements are unlikely. " William N. Eskridge, Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 437 (4th ed. 2007). That is a big "if, " and, while scholars may believe that such improvements are indeed unlikely, they have not shown any empirical research to support such a conclusion.
452. 150 N.E. 290, 292 (Ill. 1925).
453. 150 N.E. 290, 292 (Ill. 1925).
454. See James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. 1, 53-54 (1994) ("Accordingly, there is no reason to conclude that committee-drafted legislative history is significantly less imputable to Congress than committee-drafted text. The same actors who draft legislative history are involved in drafting statutory language, monitoring the amendment process, and advising legislators about which way to vote. ").
455. See Neal Devins, Presidential Unilateralism and Political Polarization: Why Today's Congress Lacks the Will and the Way to Stop Presidential Initiatives, 45 Willamette L. Rev. 395, 408 fig.1 (2009) (showing general increase in political polarization over last sixty years).
456. See Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. 205, 233-37 (2013) (presenting data on increased political polarization of Congress).
457. See Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. 205, 233-37 (2013) (presenting data on increased political polarization of Congress).
458. See Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. 205, 233-37 (2013) (presenting data on increased political polarization of Congress).
459. See Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. 205, 233-37 (2013) (presenting data on increased political polarization of Congress).
460. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). In Chevron, the Court gave three potential reasons for statutory ambiguity, two of them being types of strategic ambiguity and the other being avoidable unintentional ambiguity. The Court said: [P]erhaps [Congress] consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. The Court went on to say that "[f]or judicial purposes, it matters not which of these occurred. "