Love it. Also, have the chairs in the room increase in temperature by 1 degree per hour until they have heard, debated, and either acted or elected not to act upon all the issues on the docket.

Although one dreads what this process would like with the current Republican Party. But then again I guess how would this proposed process be different than any other current political process in that regard*?

*I am reminded of what I consider to be one of the best political blog posts ever at, "L33T Justice" from Kung Fu Monkey.

The exploit is shame ... We are faced with utterly shameless men. Cheney and the rest are looking our representatives right in the eye and saying "You don't have the balls to take down a government. You don't have the sheer testicular fortitude to call us lying sonuvabitches when we lie, to stop us from kicking the rule of law and the Constitution in the ass. You just don't. What's beyond that abyss -- what that would do to our government and our identity as a nation -- terrifies you too much. So get the fuck out of our way."

I cannot help but think that as Nixon walked to the chopper, somewhere in the darkened hallways of the White House Dick Cheney shook his head, spit, and whispered: "Pussy."

I was similarly satisfied when this happened.

I suppose this is better than doing nothing, but it hardly seems like the best possible use of a few weeks of a legislature's time. (Especially state legislatures, many of which aren't in session all that much anyway.)

Also, annually seems like a lot? Wouldn't, say, twice a decade be often enough?

And is there any reason this couldn't be done now, without a new constitutional provision? If, say, the ABA or some other credible body set up a committee to propose technical corrections to existing laws, and then every time they had a bundle of [20? 50? 100?] fixes, package them into a proposed bill and send it to friendly members of congress, for them to sponsor? In a well-functioning legislature, getting those bills passed should be easy.

How many poor children starving to death annually is this idea worth to you? 5? 10?

If, say, the ABA or some other credible body set up a committee to propose technical corrections to existing laws

Doesn't the ABA or whoever do this sort of thing with the Model Penal Code?

Most of the significant fixes would also be highly political. For example, does the Securities Act of 1934 permit a private right of action such that the interpretation of rule 10(b)(5) permitting such actions is correct (nonlawyers: the question would be whether you can have private lawsuits for (most) securities fraud, a multi-billion dollar question). What are the boundaries of fair use under the Colyright Act Does the Clean Air Act permit EPA to regulate carbon emissions?

So, everything would hinge on the political composition of (a) the judges or people making up the agenda-setting commission and (b) the Congress voting on it. All of the questions above would have gotten completely different answers in 2002-2006 vs 2008-2010.

4.last is an interesting (and somewhat offensive) non sequitur. I propose a yearly commission to review and agree to the rat orgasm to starving child ratio. Or better yet, let's do a survey!

I do think the Kung Fu Monkey post in 2 highlights some of what make the platcoin so compelling (to talk about anyway). Why do the Repubs get to use all of the exploits? Why can;t we have some?Although I think to Republicans black people voting is an exploit.

Why do the Repubs get to use all of the exploits? Why can;t we have some?

Because we have more respect for democratic ideals and for the rule of law than they do?

Not to mention the common weal.

I think 6 gets it right. Can't take politics out of politics, and politics is inherently difficult. Most of America's governing problems are not actually technical.

6: I think that's not what LB's talking about - it's things that everyone should agree are fixes, not filling in controversial details (which Congress may prefer not to decide at all).

I think it would make more sense as a tradition than a constitutional provision, though.

4 is good. Better, someone should fund a think tank to routinely perform this analysis of existing and proposed legislation. Not whether such is good or bad policy, just plain what are the ambiguities and how can the language be revised to clean it up. And then said think tank should hire me to do such analysis at home in my pajamas.

As alluded to in 6 a lot of the problems with statutes are deliberate. An unambigious statute doesn't have enough support to pass so both sides of an issue prefer to take their chances in Court. So I don't think this idea would work too well in practice, the legislatures are often deliberately passing the buck to the courts. And when the solution is obvious the courts can just apply it. What does it really matter if section 3 doesn't exist anymore?

There are ambiguities that exist because nobody noticed them, but aren't many of them because being unclear is either a deliberate punting of a hard issue.

Although I was trying to find examples and thought of what was being referred to as a "Medicaid glitch" in which early retirees with income up to 400% FPL might be eligible for Medicaid, but it turns out that had its controversies too and the fix didn't come close to unanimity.

Actually, I imagine that the first question would be whether the "individual mandate" is in fact a "tax" (and thus under current law constitutional) or a true "mandate (and thus under current but insane law unconstitutional) and whether the mandate can be severed from the rest of the bill. Good times.

Actually, since progressives are (generally,not always) in favor of sweeping federal legislation, this seems like an opportunity for conservatives to endlessly chip away at the benefits of any major progressive bill whenever they have two houses of Congress, in a way that the current structure makes difficult. I hate to think what would have happened to eg the ADA or the Endagered Species Act under this plan. Dislike!!

15: At the stage of proposed legislation, mightn't there be value is explicitly (publicly) identify the ambiguities so that the legislative decision to punt is also explicit? (I really want the work at home in my pajamas think tank job.)

This exists in the UK: http://en.wikipedia.org/wiki/Law_Commission_%28England_and_Wales%29

It doesn't get an automatic whack of parliamentary time, but it basically does what the OP suggests.

I would assume that LB is only talking about things that people from across the political spectrum would, on reviewing the proposal, agree (1) are technical mistakes or inadvertent ambiguities, and (2) what the correct fix should be. If Republicans think the fix should be X and Democrats think the fix should be Y (ie., does the Clean Air Act permit EPA to regulate carbon emissions? D: Yes/R: No), then that needs to be resolved by normal legislative process (or left ambiguous for the courts to decide).

And I don't think LB is suggesting this would fix anything close to "most of America's governing problems."

15 also gets it right.

I suspect that the number of purely "technical" mistakes with obvious and noncontroversial fixes (eg, typos) is pretty extremely low, and as soon as you're talking about resolving "ambiguity" (or even potentially conflicting provisions) you're in an area where there are significant things at stake.

19: I'll take "Things that sound Hopelessly Utopian To Americans but Already Exist Elsewhere" for €200, please, Alex.

The ABA (and other organizations) already do a bunch of things that are similar to the law revision commission in the UK, particularly at the state level. The problem is that it's often hard to distinguish genuinely "technical" reform from areas of actual political substance.

Congress frequently debates and enacts technical correction bills after omnibus bills. The various ABA sections propose changes to particular statutes, and sometimes these are enacted.

I have no idea, though, why Congress has never corrected the typo in 28 USC 1491(b)(1).

23. Retail clotted cream. Bodega where you can get a beer and sit at the table outside. Indoor smoking.

For example, California has a formal law revision commission. And I believe the US Congress has a specific law revision office that turns statutes into the compiled US Code and proposes technical fixes to things like typos, though I should check that.

Indoor smoking

26: what American would see clotted cream or indoor smoking as utopian?

Ah yes, here we go. The Office of Law Revision Counsel for the House.

Clotted cream is fabulous, and zero places to have a beer and a smoke is a diminishment.

Along these lines, I've always thought we could have saved a lot of grief if the Constitution, and the Bill of Rights in particular, weren't so gnomic. A lot of these amendments seem to be written in the briefest language possible, like 1970's computer code, and I'm not sure why.

The right to bear arms is an important and nuanced concept! Please express it in more than one sentence, guys.

30 -- You're missing the critical element of the fantasy. LB wants the benefit of collective action (ie, attention of legislature), without "action" or "collection."

32: They couldn't have imagined people would be so dumb as to keep trying to use the same constitution centuries later.

15 21

You guys don't think the ambiguity in whether the new crack cocaine sentencing rules should apply retroactively was deliberate?

I doubt ambiguity in the text of a statute is often deliberate punting of a hard issue. Ambiguity is brutally difficult to remove from any natural language piece of text: all the horrible writing that gets mocked as lawyerese is in the service of removing ambiguity, and it's still often not enough.

Failure to resolve significant ambiguity, once it's been identified by third parties, is often going to be semi-deliberate punting, but I think situations where someone drafting legislation is consciously thinking "We could write a law meaning X (on some specific point) or Y. Each of X and Y have powerful constituencies, and if we have a fight over it it'll torpedo the rest of the law. I'll write something ambiguous between the two and let the courts work it out," are pretty rare. Not nonexistent, but not the mass of actually existing ambiguity.

34 is funny.

32: true. They were eighteenth century intellectuals - surely adding extensive footnotes should have been virtually a reflex action?

I was assigned a paper in my statutory interpretation class that said that the makers of the US Code (the OLRC, I guess) definitely do not insert statutory language into the Code character for character; they reorganize and maybe even change summary titles, I can't remember. I'd be surprised if they didn't correct unambiguous typos.

36: It doesn't have to be deliberate ambiguity on the part of the legislator. It could be an unintentional ambiguity that a powerful interest group subsequently exploits, and the effect is the same.

33: Right, the fantasy is that Joe Practitioner, Esq., or the Hon. Jane Judge would be able to raise their pet screwed up statute with the legislature. (Maybe use judges as gatekeepers? A judge could put an issue on the agenda sua sponte, or an attorney could make a motion within a relevant action that in addition to making a ruling, the judge should also send the statute to the legislature for a tuneup.)

39: I was disagreeing with 14 and 15, which both seemed to be claiming that there are very few unintentional ambiguities.

I suspect that the number of purely "technical" mistakes with obvious and noncontroversial fixes (eg, typos) is pretty extremely low

I think there's some kind of cognitive bias behind this - i.e., one is unlikely to hear of errors when they're nonpolitical.

The system proposed in 33 would immediately lead to meaningful political controversy in any significant case, for the reasons outlined above, and would be used consistently to limit or undermine major legislation. For the truly "technical" issues like typos there already are structures in place.

At this point it might be worth mentioning the Bug Bible, the Discharge Bible, the Wicked Bible, the Breeches Bible, the Wife-Beater's Bible, etc.

http://en.wikipedia.org/wiki/Bible_errata

would be used consistently to limit or undermine major legislation.

How? You could waste time with it, but if there weren't votes in the legislature to change something important, nothing would change. And if there were votes in the legislature to 'undermine' major legislation, it could happen without the fixit session.

I gave you examples in 6 and 13, all of which involve ambiguous or confusing statutory language. If this proposal had been in place in 2005 you certainly could have killed off private securities litigation, ended the ability of the EPA to regulate climate change, etc.

46: couldn't those be killed off now by a majority?

Sure, but Congress could kill off private securities litigation or end the ability of the EPA to regulate climate change now if it wanted to and there were the votes for it. This wouldn't make it any easier to change the law, it would merely draw the legislature's attention to points where we were working on judge-made law because the statute didn't address an important point.

You may like a specific piece of judge-made law, and judges have to make law where there's a gap in the statutory structure, but it's not how the democratic process is supposed to work: if a majority of legislators want the law to be X, it shouldn't be some-judge-devised Y, even if Robert Halford thinks X is better policy than Y.

Sure, you can amend statutes, but the agenda-setting function is tremendously important in a legislature. It's very hard to get any bill passes, even with a majority. There's no political momentum to amend the Clean Air Act now, or to eliminate the private securities action, because those are longstanding pieces of legislation and people aren't up for big fights in changing them. If a commission could give a Republican congress a "technical" up or down vote on amending existing legislation, the rules would be completely different and enacted statutes would be subject to much more constant and effective revision.

I'm not hopeful about this sort of thing. Here in Massachusetts, there was an attempt to legislatively remove the crime of sodomy from the books (after it had been judicially overturned), but I think it was stymied when there was disagreement about how to handle the clause about bestiality, which was in the same sentence.

Let me be clear: it is frankly insane to ignore the importance of agenda-setting for a legislature.

36: Most of the controversial preemption cases revolve around language suffering this exact "ambiguous because easier to pass" problem. Brusewitz v. Wyeth, the vaccine court preemption case from 2(?) terms ago is a pretty good example. So are most of the medical devices cases...

45

How? You could waste time with it, but if there weren't votes in the legislature to change something important, nothing would change. And if there were votes in the legislature to 'undermine' major legislation, it could happen without the fixit session.

It makes a difference when a majority favors something privately but is unwilling to support it publically. You are potentially removing a source of political cover.

51

I agree with 51 (well maybe "naive" instead of "frankly insane").

49: Doesn't it seem even vaguely problematic to you that you're relying on the vital importance of provisions of law that while nominally part of a statute, were actually created on an ad hoc basis by judges in response to the issues in a particular case? I know that a democratically elected legislature isn't always going to enact my policy preferences, it's almost never going to. But that's still where laws are supposed to come from in our system.

(And this is a utopian, blue-sky proposal. I'm not seriously saying anything like it is at all plausibly ever going to happen. But if I did happen to be drafting the constitution of Equatorial Guinea, I'd be thinking about it.)

"It is emphatically the province and duty of the judicial department to say what the law is."

Legislatures pass statutes in ways that are often, deliberately or incidentally, open to interpretation. In specific cases where the interpretation is at issue, judges interpret them. That's our system.

An alternative system in which we required legislatures to state absolutely everything in a statute (or, worse, to have all statutes subject to constant reinterpretation of a different and new legislature) makes effective democratic legislation more difficult, not easier.

(or, worse, to have all statutes subject to constant reinterpretation of a different and new legislature)

As they are now.

In specific cases where the interpretation is at issue, judges interpret them.

And there's some interpretation where they're reading language that's there, and some interpretation where they're essentially making things up. The latter isn't wrongdoing on the judge's part -- there are situations where the law has to be something, and the statute doesn't tell you what it is in any comprehensible way, so the judge has to do something. But that is, IMO, an undemocratic way to create significant provisions of law, and asking the legislature to either endorse or reject that sort of judge-made-law seems to me to be a good thing, even if you're afraid that the elected legislature won't serve your policy preferences as well as the judiciary does.

I think 58.last explains why this matters to LB, and makes me warmer to the idea. Basically, when a judge "makes law" out of ambiguous statutory language, it gets sent up the line to be reviewed by the leg, which has to either endorse or repudiate that judge-made-law. That does seem like a better world.

I'm thinking that this is one place where you actually would want to have multiple veto points/supermajority rules, so that you don't get partisan legislatures effectively overruling their predecessors for free. IOW, if the judge's interpretation is crap, then the leg can say so, but if the judge is correctly interpreting a previous legislature's law, but the current one disagrees, they need more than 50%+1 to make it happen.

Because the point isn't to circumvent the political process; it's to clear up unintentional and/or problematic* ambiguity.

*sometimes the ambiguity was unanticipated, not in the sense that it was wholly unintentional, but in the sense that no one thought much would hinge on it. But once you've got million dollar settlements, then you need to work it out.

57: Is there a Latin term for taking a proposal to move in a particular policy direction and painting it as a proposal to go as far in that direction as possible to the point of ridiculousness? Reductio absurda ad absurdum?

||

OT: Hey, LB, or other lawyers who might know: do the ethical prohibitions on contacting the client of another lawyer without the involvement of that lawyer apply to lawyers who work in-house or for the government, or do they just apply to lawyers who work in private practice?

I've been negotiating an agreement with an attorney who works for the state, and just found out that attorney had a long conference call with my client yesterday (without me) where they "worked out" the open issues. I got an email from the state attorney telling me we're done, and telling me what the deal is. Needless to say, the supposed "deal" sucks, and I'm very annoyed.

If the lawyer were in private practice this would be a serious offense, but I don't know if the same rules apply to in-house or government lawyers...

|>

The "constant reinterpretation" point was to the merits of the proposal. As I say, of course Congress can revise statues. But, say, the expectations involved in passing something like the Civil Rights Act of 1965 differ tremendously based on whether (a) it can only be revised through standard bill-enacting procedures or (b) new and different Congresses will be presented with the opportunity to effectively revise and interpret its provisions whenever a judge (or a lawyer!) identifies a significant ambiguity in the legislation.

The entire system of statutes, and our expectations of their relative permanence, would be transformed, as I say in a manner that would generally harm progressives (you've made it much easier to undermine legislation based on shifting political coalitions, while keeping it just as hard as always to get legislation passed).

I don't think "judge made law" is much more than a slogan here. You can plausibly interpret the Clean Air Act to give EPA the authority to regulate carbon emissions, and plausibly interpret it the other way. That's not "judge made law"; it's an interpretation of the statute based on conditions not necessarily obvious to the original drafters of the statute, which is what judges do. Sending the issue back to a new Congress with a different political coalition in place is not more democratic -- it is an invitation to constant effective revisions of the law.

60: I'm responding to the proposal as described. Do you think this wouldn't immediately be used by groups interested in revising the law in specific, important cases, such as the PPACA example above?

If we're going to amend the constitution I'd rather see instant runoff voting and a clarification that a well regulated militia must actually be regulated, Swiss style.

First, once a particular ambiguity is resolved, it won't come up again, so the same provisions won't be revised over and over except through regular procedure.

Second, did you really just say "Sending the issue back to a new Congress... is not more democratic"? Bluh? If we lived in a less dysfunctional country with fewer veto points and more rule of the majority, these kinds of clarifications would always -- perfectly naturally and legitimately -- depend on who's in power. It might hurt progressive causes (though I doubt it, what with the veto points), but it is hardly undemocratic.

With holes in it?

61 -- In house certainly. There are exceptions instances with government lawyers -- you can look at DC rul 4.2(a) and comment 12 (http://www.dcbar.org/for_lawyers/ethics/legal_ethics/rules_of_professional_conduct/amended_rules/rule_four/rule04_02.cfm) for an example of this.

What you describe sounds outrageous to me. And something your client should be able to get out of, if s/he wants to.

Another way of thinking about the same point is to think about the differing roles of judges and legislatures. When interpreting a law, a judge (theoretically, but to a large extent practically as well) is bound by a commitment to fidelity to the original legislation, which is why statutory ambiguity often gets resolved by looking at legislative history, purpose of the statute, language of the statute, etc.

A legislature asked to "fix" a statutory ambiguity has no such constraints. It is free to base its interpretation on whatever politics it wants or that its constituents demand at the tome. So, while for a court, the fundamental question of "does the Clean Air Act permit EPA to regulate carbon" is one of fidelity to the statute, for a legislator it's "what is the interpretation that gets me the most votes/supports my underlying ideology." It's just two completely different ways of looking at statutory interpretation.

66 to 64.

67: oh, he can definitely "get out"--nothing's signed--it's just highly irritating.

59.1 -- What we have right now is a situation where someone who loses an open issue in court can go to the legislature and try to get them to change it. Depending on what it is,* you might instead have people similarly situated but not the person who lost going to get the change.

The difference between what we have and what LB wants is the amount of effort the proponent of changing the law has to put in. With a high threshold, you only get changes that really matter to someone.

*Two examples from my own practice show the distinction: (1) a claim gets dismissed on jurisdictional grounds, so the claimant [and lawyers] lobby successfully for a change in the jurisdictional statute, and then refile; (2) an employer loses an open issue about cashing out sick leave for laid off employees, other employers lobby successfully for a change of law going forward.

A legislature asked to "fix" a statutory ambiguity has no such constraints. It is free to base its interpretation on whatever politics it wants or that its constituents demand at the tome.

And that is precisely where I don't see a problem. The legislature was equally free to base its original statute on whatever struck its fancy. That's how things work.

Correct me, but you seem to be holding "fidelity to the original legislation" as some kind of moral norm that even the legislative branch should keep in mind.

Apologies for 60, BTW. Your objections are clearer to me now.

Not "tome" of course, time.

65 -- I think the above goes to the "more democratic" point, which I'm actually surprised you can't see. Under LB's system, it's just as hard for a legislature to get a major piece of legislation passed in the first place. But it's enormously easier for a new majority to (effectively) change or undermine the original legislation. So you're going to have, on average, an inherent ratcheting down of statutes. You're effectively trading greater political control of the current majority over statutory "interpretation" for the ability of major legislation to get passed and endure in the first place. Anytime you make it easier to constrain than to enact legislation, you're on average hurting progressives and the ability of the legislature to make large scale solutions to social problems.

71 -- right, we're talking about differences of degree of difficulty in getting the legislature to change statutes. Under LB's system, you make it much easier for a subsequent legislature to change, constrain or cabin the actions of a previous legislature, based on the current political coalition, but not any easier to get the original piece of legislation enacted.

72 -- it's not a moral norm, it's a question of how enduring we want the original enactment to be.

75 -- And how much legislative and administrative time you want to spend on issues that don't matter to people enough to get a letter writing campaign.

Anytime you make it easier to constrain than to enact legislation, you're on average hurting progressives and the ability of the legislature to make large scale solutions to social problems.

Wouldn't LB's system make it as easy to expand legislation as to constrain it? E.g., if courts said no private right of action or no EPA regulation of carbon emissions, this would be a (comparatively) easy way for a majority so inclined to fix that in a way that would help progressives.

I'm inclined to agree on the whole, though, in part because presumably the system would just amplify the already antiprogressive (and antidemocratic) institutional features of the legislative process.

Anytime you make it easier to constrain than to enact legislation, you're on average hurting progressives and the ability of the legislature to make large scale solutions to social problems.

This might cause indirect harm to the health of the state, but again, it's hardly undemocratic. Help me understand!

I realize that the cycle of the past few generations has been liberals come into power and make sweeping new social programs, conservatives regain power and let them stand, slowly chipping at them with limited effectiveness due to veto points, but I don't see that as a status quo worth enshrining. The ability to set in stone certain programs is sort of good, but the the tradeoff - endemically unresponsive, ineffective legislatures - hurts progressivism more. Anyway, social programs' staying power I think is mostly for non-procedural reasons - viz. the failure of Bush's 2005 assault on Social Security and every European country. Let's have some majority rule.

77 -- sure, absolutely, in individual cases. But on the whole (because it's just as hard as now to pass new legislation, but much easier to cabin or constrain that legislation) I think as a while the overall effect would be a cabining and limiting of legislative power to impose major, significant policy changes, which (again on average, not every time) hurts progressives.

78 -- I agree with more majority rule, but the proposal in question provides (temporal) majority rule only for statutory interpretation, while keeping the ability of legislatures to enact legislation in the first place just the same. So you'd have a dynamic where the incredibly hard to get passed progressive statute (which will be just as hard to get passed) is the subject to much more aggressive chipping away during periods of conservative rule, without any countervailing benefit for getting legislation passed in the first place.

Let's have some majority rule.

So we're also going to get rid of the Senate? Now we're talking.

61: AFAIK, same rules -- I'm not aware of any exception that lets me talk to a represented party without their lawyer's permission, and I probably should know if there was anything along those lines.

80: Or aggressive bolstering during periods of liberal rule. If the ambiguity's there, and there's a liberal and a conservative interpretation, there's no reason that only conservatives could use this process. A liberal court or practitioner could raise their favored interpretation with the legislature, and get that locked in, if there were the votes for it.

83: I think Halford's issue is that due to our punctuated equilibrium-style moments of social legislation, reactionaries will be in power more years on average than liberals, and therefore more opportunities to constrain will be in their court.

81 -- Cold dead hands, man, cold dead hands.

That's part of it. Also, I just thought of an EVEN BETTER argument against this proposal, which I will write up as soon as I'm off the IPhone.

I suspect that the number of purely "technical" mistakes with obvious and noncontroversial fixes (eg, typos) is pretty extremely low, and as soon as you're talking about resolving "ambiguity" (or even potentially conflicting provisions) you're in an area where there are significant things at stake.

This. I work in DC and this is basically the story of my life. It is incredible the kind of minor things that industry will seize on and expand into a massive loophole. Basically, one person's legislative ambiguity is another person's business model.

Be nice to have a process for getting those fixed, no?

Don't most legislatures have legislative counsel offices that ideally are supposed to catch problems during the drafting process?

It's really, really, really, really hard to catch everything. Some ambiguities are boneheaded screwups, but plenty are just that writing unambiguous statutes is a very difficult thing to do.

As I understand it all laws nowadays are passed at 9PM on the last day of the legislative session, so errors will creep in.

I work in DC too, in the regulatory office of an executive branch agency, and it already has a mechanism to deal with non-substantive, uncontroversial measures. It's called a technical amendment, and the clearance process gets greatly expedited for them. For example, normally clearance for a rule from when this agency is happy with it to when it's legally enforceable takes at least a year, and can easily take five or more.(Depends on when you start counting for "when this agency is happy with it.") For a technical amendment, I think it takes between three and six months.

We try to put them out twice a year. We solicit suggestions of things to fix. Most suggestions come from our regional branch offices but I think we usually also get a few from industry and the public. Typos, skipping or repeating a number in a list, things like that. They can even include changes that are substantive in a sense, as long as there's no really, really ambiguity about what it should have been.

It seems to work fine. My biggest complaint about it is that it's not used more. People try to deal with that kind of thing all the time in regular rulemakings, which just slows them down. Someone somewhere decided that a current, high-profile, "fast-tracked" project had to update and standardize the formatting of a dozen sections, even though they're perfectly unambiguous as is, it's just ugly, and the project barely touches some of them. I spent so much time and energy on that even though it could have been a technical amendment...

Right, Cyrus. To add to what Cyrus said, it is also true that most of the time grants of authority in statute are big enough to allow regulators to easily deal with real issues in rulemaking.

In the world of politics, though, industry calls anything controversial that they want to do a 'technical amendment'. It doesn't matter how big it is, it doesn't matter how much of a change it makes, it's a 'clarification' or a 'technical amendment' or (my favorite) a 'tweak'. Let me tweak this for you now...it won't hurt a bit.

Also, another factor here is that once you are able to get a technical amendments bill to the floor, even if it does contain only genuine technical amendments, then other (non-technical) amendments to the same legislation can become germane and thus much easier to bring up under Senate rules. I guess this is something LB's new procedure could fix but it's a real issue too.

88: I don't know -- "fixed" might also mean "Oh, I'm sure nobody meant that same sex people can get married and have marriage-related rights / that privacy extends to a woman's body / that equal protection includes blacks." That's an ambiguity you could drive a truck through; we'd better fix that right up! (I believe I'm mucking up a distinction between constitutionally granted rights and mere statutes, and I don't speak law, but I think the example holds.)

As one person's ambiguity is another's business model, so it's also another's route to assertion of minority rights. I'm with Halford on this, e.g. 24.last: I don't see how this doesn't preemptively introduce politicized re-interpretation.

I think you'd need to very carefully limit what "ambiguity" and/or "technical fix" means.

politicized re-interpretation.

Laws are supposed to be politicized. That's where they come from, the political process.

Really, I think PGD and I have proved that the executive branch is just better than the legislative branch.

96: Huh? I thought you were talking about relatively uncontroversial fixes (like "When we wrote that thing about the ability to mint platinum coins, we didn't mean that they could be actual money, that was just a lacuna in our formulation").

I don't think you've answered the substance of 95.

Assuming all relevant laws are constitutional, because that's a separate issue, laws are supposed to be determined through the political process. If the courts are reading a law to favor the interests of a minority or other sympathetic interest group, in a way that was, because of some problem with the drafting of the law, not intended by the legislature that originally passed the law, that's undemocratic even if in the specific case you think it's better policy than what a legislature would do. The process for deciding what the law should be is supposed to be a political one -- where you got a purportedly statutory right that came into existence without a political process, that's a problem, in my view.

And it's not clear to me that the net result of this is going to favor right-wing interests. As I've said before, even for the subset of legislative fixes that are on ideologically weighted issues, they can go both ways.

The process for deciding what the law should be is supposed to be a political one -- where you got a purportedly statutory right that came into existence without a political process, that's a problem, in my view.

Obviously the process by which the law came into existence was a political one. I don't know what you mean by "a purportedly statutory right that came into existence without a political process".

Any right you're contemplating in 95. You can't mean constitutional rights, so whatever you were thinking about losing if statutes were rewritten to eliminate unintended ambiguities.

We're quibbling past one another at this point, LB. The phrase "unintended ambiguities" really bothers me, and I think would need to be tightened up quite a bit if this fantasy proposal had any legs.

No, it really couldn't be. This fantasy proposal doesn't have any legs -- there's no mechanism at all for getting from here to there. But if anything like it could ever work, it couldn't be by tightening up the concept of ambiguity (oh, you could limit it to really purely technical fixes like misnumbering, but that wouldn't cover what I want.)

As I say, the British versions of this have worked just fine, and we've got more weird old statutes than anyone. It's probably because the Law Commission is super-low profile and very much covered by the lawyers' guild-mentality.

The main reason the UK doesn't have as big a problem with this is that they have a parliamentary system with few veto points. And we should, too. But I think Halford's right that somehow (Lb didn't specify the mechanism, did she? Would these clarifications not need senate concurrence, or presidential signature? Cuz that's where 90% of the gridlock happens, in the clashes between the three players) making revision of existing legislation, but not new legislation, more majoritarian would have some perverse effects.

And if revision is substantially easier than normal procedure, that gives a hell of a lot of power to whoever gets to decide what counts as a technical revision.

Basically, Halford's right. We *have* procedures intended to streamline this process. When they don't, it's because there's real conflict there. We need more majoritarianism, but across the board, but just here.

90: Right, but in a not-as-much-of-a-fantasy-world, I'm in favor of more or better pre-passage review.

Would these clarifications not need senate concurrence, or presidential signature?

They'd be laws, subject to all constitutional checks. The idea is to dedicate legislative time to them with possibly streamlined rules of debate.

Right. I'd even be happy with special supermajority rules, to limit it to statutes that noncontroversially need some kind of fix (say, each proposed fix gets an initial procedural vote where if addressing it doesn't get 60%, it's off the fixit agenda for the year). (And I was thinking about this more at the state than the federal level, where the rules are somewhat different.)

107: I'm missing whether this answers the question: do they not need Senate concurrence at the least? If not, the idea is that the House can rewrite (clarify) the language of laws on its own? I doubt that!

You can't pass a federal law without the Senate. For these fixes to be law, they'd have to pass both houses.

OK, here's another (long) argument. I'm assuming here that we're talking about a process that would "fix" actually substantive statutory ambiguity and engage in actual statutory interpretation, not make merely technical fixes for things like completely obvious typos, cleaning up the US Code, or eliminating clearly obsolete provisions (for which there are already existing processes, and which don't matter that much anyway).

In Time 1, say, 1970, Congress gets together and passes legislation, say, the Clean Air Act. That Act is the result of an incredibly complicated series of legislative compromises and horse-trading; Congressman x was only brought on board because somebody else promised to support the Wild Horse and Burro Protection Act, another because of an earmark somewhere, etc., etc. The messy business of democracy. Take any one of those pieces out and it's hard to say what happens to the legislation as a whole.

In Time 2, say, now, it turns out that there's (unintentionally or not) something ambiguous in the statute that matters. Can the EPA regulate carbon under the Clean Air Act or not? The statutory language isn't clear. What do you do? The current system is that judges decide that issue, based on their best understanding (based on text, structure, legislative history, etc.) of what Congress intended the stautute to do.

Under LB's proposal, a panel of judges and/or lawyers gets to present this issue -- and, crucially, only this issue -- to Congress. The new Congress now is not faced with any of the horse trading of the 1970 Act, and is not bound by any requirement of fidelity in interpretation; it essentially gets an entirely new question about the interpretation of the act, which, this time, the new Congress can view entirely in isolation and resolve in an either-or manner. This time, the horse trading, compromises, and general democratic deliberation involved in getting the bill enacted in the first place are not there. This is true for at least two reasons: first of all, it's a different Congress, second, it is incredibly different to consider a statutory provision in isolation vs. enacting a bill as a whole.

So, under LB's proposal, we've created an entirely different kind of legislative enactment. And, in this new world, we've delegated the agenda setting power almost entirely to an unelected body of judges and lawyers. Do you need to assemble a political coalition, introduce a bill, get the momentum going for a new law? No. Rather, the lawyers and judges present Congress with a specific question, which it can now interpret as it sees fit. While the vote on the statutory interpretation itself is done by elected representatives, the crucial step -- getting the issue to the floor in the first place -- is not.

Obviously, granting the power to force Congress to consider important issues is an incredibly important power. Consider the timing issue alone -- does the Clean Air Act issue get sent to Congress in 2004 or 2009? And beyond the timing issue, we've got the general power to present to Congress issues not in the context of overall bills, but in terms of isolated issues of statutory interpretation.

But wait, you say, Congress always has the power to revise statutes. What's the difference here? Well, to revise a statute by the ordinary process, you have to do the kind of horse-trading and coalition building you need to do to enact legislation in the first place. It's effectively like passing a new law. Here, the unelected commission shortends one of the most important parts of the democratic process, and has the power to agenda set (and time legislation) without ordinary democratic input. In other words, you've just outsourced one of the most important democratic functions of a legislature to an unelected body.

I don't see any way in which the new proposed system is more democratic than a system in which judges are required to do their best to faithfully interpret statutes based upon the deal put together in the originally-enacted legislation. That system respects the ability of Congress to make compromises, build coalitions, and do all the things one needs to do to get a bill enacted into law. The proposed new system allows an unelected body to usurp one of the more important aspects of the political process.

See, I hate all that shit. If a provision's not a good idea in isolation, it's not a good idea because it was used to buy votes for something else.

That was flippant, of course, but I do mean something by it.

And anyone who doesn't like the way a judge answered the question and (a) appeal and/or (b) work to change the law.

I'm kind of surprised, though, that you are taking this fantasy so seriously Halford. (Well entertained, I hasten to add.) LB's (political) fantasies frequently have the character I mentioned in 33 -- I recognize this, because mine do as well: wouldn't it be cool if, never having taken a lesson, I would wake up tomorrow playing the sax like Sonny Rollins? Hey, what if without putting any effort into my appearance or having to forego boorish behavior, that young woman I sat next to at the central committee meeting last night became irresistibly attracted to me?

See, I hate all that shit. If a provision's not a good idea in isolation, it's not a good idea because it was used to buy votes for something else.

But people have different opinions about whether or not something is a good idea in isolation and they don't get to vote on the provisions in isolation.

To use a banned analogy, one of the things I learned when I was looking at buying a house is that the selection of houses for sale is much, much smaller than the range of possible choices one might want. IT was really easy to think "I wish I could have house B in location A with the garage from House C" but that choice doesn't exist, so you evaluate the existing options knowing that any selection will represent a compromise.

I can only imagine that the situation is much much worse in a legislature and that every single person voting for a bill thinks that, if they could be dictator, they would have written a different bill. But they don't have the chance to vote on the bill that they personally would like to see.

that you are taking this fantasy so seriously Halford.

Guess what my real work schedule looks like.

111 is 715 words. Does anybody know a high school student who needs an essay for tomorrow?

111, 114, 115: There's a certain sort of Panglossian "everything is for the best in the best of all possible worlds" dismissiveness in the face of proposed radical changes to the way we do things that I find pointless. Obviously, yes, the way we actually do pass laws is in these giant rickety horsetraded contraptions that have no conceptual coherence, so, e.g., there's no way to judge a legislator's policy intent by what they've voted for or against unless you have complete knowledge of the behind-the-scenes horsetrading. "I voted against it before I voted for it."

Of course that is how we do things. But it's not a good way to do things. Any change in the system that brings us closer to a state of the world where every statute was passed by a legislature that intended to bring about the functional results of that statute, and where every legislator can be held responsible for intending the enactment of the statutes they voted for, is in my view a good one -- pointing out that it's not how we do things is simply not an interesting response.

To be clear, I'm not wildly attached to this specific proposal as completely worked out practical good policy -- I'm spitballing. But saying that it's a bad idea because it shortcircuits the strategies legislators use to avoid responsibility seems useless to me.

Any change in the system that brings us closer to a state of the world where every statute was passed by a legislature that intended to bring about the functional results of that statute, and where every legislator can be held responsible for intending the enactment of the statutes they voted for, is in my view a good one

That sounds inarguable but, as they say, the Devil is in the details.

The point of my analogy to buying a house (or car or whatever you prefer) is that people are often faced with selecting the best from a limited range of options, rather than being able to pick something that they consider the best possible outcome.

As any salesperson could tell you defining the options that somebody can chose from can significantly alter their choices.

So the question is, what do you mean by, " every legislator can be held responsible for intending the enactment of the statutes?" A legislator could legitimately prefer the enactment of a statute to the status quo ante without preferring every single element of the bill.

As long as the technical revisions are merely technical that doesn't matter -- the goal is to more closely align the bill, as law, with what the legislature thought they were voting for. But as soon as opens up substantive issues you will be faced with legislators who liked the bill better than nothing, but would prefer an amended bill to the one that was passed and want to use the process as a way to amend the bill.

119.1 was a quote, and should have been in italics.

119.1 was a quote, and should have been in italics.

We need to have a dedicated blog comment technical correction committee.

I don't know that it would have to meet annually. Twice a decade might be sufficient.

Think about it this way. You occasionally see legislative debate described by the quote, "nothing is agreed to until everything is agreed to." Meaning that somebody can agree that a given position (X) would be acceptable as part of a compromise without agreeing to support X on its own.

The only way that works is if the process of "everything [being] agreed to" is binding. You don't want a dynamic in which a compromise is agreed up and then, soon as it's complete, everybody starts trying to remove the parts of the compromise that they don't like.

I don't think that's an inevitable result of your proposal, but I think Halford's right to say that it's a real concern.

I don't see why forcing the legislature to spend two weeks (or whatever) considering everything on Exxon's list of 'technical' changes to the state code, whether they've had some effect or not, is in any better than the current system. (Or the ACLU's list.) Which does allow for correction of errors, but leaves to the legislature itself, not your disembodied process, the decision-making about priorities.

It's not the end of all meaningful democracy, of course.

So, why don't you write it up as a referendum, and start collecting signatures? How many does it take to get something on the NY ballot?

Oh. First step.

I don't see what's so bad about judge made law. In general I expect they do a better job than legislatures particularly when it comes to details. And if they get something seriously wrong the legislature can always overrule them.

I don't see what's so bad about judge made law. In general I expect they do a better job than legislatures particularly when it comes to details. And if they get something seriously wrong the legislature can always overrule them.

In a UK context, at least, any given "judge made law" is likely to be better than, or at least as good as, what the government would have proposed had it done so. But at the same time, any given judge made law is far more likely to be overturned by a higher court, or indeed the legislature. So leaving legislation to the judiciary creates enormous uncertainty and flux. English libel and privacy law, for instance, has evolved enormously in the last decade and a half, in the absence of any meaningful new statutes since the Human Rights Act in 1998. Any high profile, remotely difficult case going to court is likely to change the law. This also means that trials become much more expensive, because a higher proportion of cases are difficult.

128 is pretty much the opposite of the standard argument for the amazingness of the Common Law of England*. Not saying Ginger Yellow's wrong (my doubts about the amazingness of the common law are strong) but it is an interesting thing.

* esp. in commercial law.

I am touched that people can still have non-cynical conversations about whether this or that technocratic fix would benefit American democracy. I am increasingly convinced that the problem with America is Americans, and that nothing will work short of extermination.

On the other hand, it's possible that I've been paying too much attention to my Facebook feed.

130: We already tried that once.

128 is pretty much the opposite of the standard argument for the amazingness of the Common Law of England*. Not saying Ginger Yellow's wrong (my doubts about the amazingness of the common law are strong) but it is an interesting thing.

It'd probably best to leave arguments pro and con English common law to the legally trained, but anyway...

To be fair, libel and privacy are somewhat exceptional (in the fields of law I follow closely) in terms of judicial lawmaking in the face of legislative inaction, though having said that I was startled to learn a couple of years ago that the wording of one major prong of the statutory insolvency test had never been tested in court in the 25 years since its introduction. When it was, the judge ruled it meant more or less the opposite of what everyone had assumed it meant. And I think a lot of the people who sing the virtues of English law are English lawyers and judges, who aren't exactly disinterested. In a commercial context, one reason it is often favoured is the general primacy of explicit contractual provisions over other considerations, which at least in theory allows for more certainty of outcome in commercial disputes. Outside of contract law, though, I'd argue the common law nature can make things much more uncertain.

132

... When it was, the judge ruled it meant more or less the opposite of what everyone had assumed it meant. ...

And the appeals courts agreed?

And the appeals courts agreed?

Effectively, yes. The court of appeal upheld the original judgment that the entity wasn't insolvent, but disagreed with the court of first instance on a number of case-specific details. Also the fundamental point of how the test in question should be applied was upheld, but the wording of the principles that should guide its application was altered.

134

This seems like an unusual situation.

Although in the US you can have cases where the lower courts develop a body of case law and then the Supremes eventually say they got it all wrong. For example I believe the Supremes have never said software patents are valid and could in theory throw them all out although that would of course be disruptive.

This seems like an unusual situation.

In commercial law, relatively so but not massively. For instance, another case I followed recently on a fairly widely used capital markets practice had no direct English case law precedent and the judge relied on 100 year old indirect English precedent and direct US law precedent.

Like I say, English commercial law is relatively settled, with some surprisingly important exceptions, but the point is that outside of that, its fairly common in England for under-determined statute to be developed in rather topsy-turvy fasion by the courts. Partly this is because of the aforementioned HRA, which kinda-sorta introduced a full bill of rights into English law, without a meaningful body of (English) case law or statute behind it.