Sunday, August 30, 2009

Writing Laws 101

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Every once in a while, legislators can learn from doctors. In late June, the World Health Organization issued its first guidelines for reducing the complications and deaths from medical procedures. These guidelines list simple safety checks that WHO believes could cut in half the rate of surgical complications.

What does this have to do with law? Potentially a lot. Simply read the advance sheets of any federal or state court that spends a considerable fraction of its time interpreting statutes—which is to say, all courts—and you will quickly see that a vast amount of litigation is devoted to relatively technical or noncontroversial statutory issues that Congress or the relevant state legislature could and would probably have resolved had it just given those issues a little thought. By the simple expedient of reviewing a checklist of such issues when drafting laws and then including provisions to address some or all of them, a legislature could reduce significantly the amount of wasteful litigation, just as WHO's checklist will likely reduce costly surgical errors.

Many issues generate a great deal of litigation even before the court can reach the main procedural or substantive questions that lie at the heart of the dispute. Here are just a few examples: Does the statute permit a private cause of action for damages? Which courts have subjectmatter jurisdiction, and where must appeals be lodged? Is the statute retroactive? In the case of a federal statute, is it intended to pre-empt state law? Who has standing to sue? Is there a statute of limitations, and if so what is the limitations period? Is arbitration permitted? Which types of relief are available? Most important, but also perhaps more controversial, how should the key statutory terms be defined?

I am not the first to propose using a legislative checklist to reduce litigation costs and economize on limited judicial resources. Earlier proponents include a Federal Courts Study Committee report to the Judicial Conference of the United States, the U.S. Department of Justice in congressional hearings, and the late F. Reed Dickerson of Indiana University Law School. Despite support from such heavy-hitters, however, legislative bodies have not adopted this approach. Why not?


One can never be sure about the reasons for legislative inaction, of course, but certain objections to the checklist idea are obvious. My characterization of some issues as "relatively technical or noncontroversial" is itself bound to be controversial. In the intensely adversarial world of litigation, one party's mere technicality may be another party's winning argument. The threshold-issue barriers that tend to slow traffic and increase congestion cannot simply be disparaged as unwanted nuisances; in truth, they reflect important legal values.

Knowing this, repeat litigation players—plaintiffs lawyers, insurers, business firms, and other litigious interests—may care enough about these issues to lobby against addressing them in the statute, thus raising the political stakes for the politicians who want the support of those players. Indeed, the legislature may have failed to address the issue precisely because resolving it was politically costly. After all, for repeat players with lobbyists on retainer, no issue may be too small or too technical to fight about.

Statutory silence on issues, then, may reflect legislators' incentives and their considered political judgments. Or it may reflect little more than their inadvertence, haste, or failure to anticipate future litigation. Legislators finesse some issues purposefully and fail to address others because they simply do not think about them.

The checklist is designed to address the latter possibility, which is common. Inadvertence, forgetfulness, and predictive failures afflict all of us, which is why we often adopt some serviceable memory-jogging remedy, such as compiling to-do lists. (Of course, we must then somehow remember to consult the lists—a problem that is easier to solve in the legislation context.)

Another reason for statutory silence is that legislators cannot as a practical matter legislate explicitly on every issue that might later arise in litigation. Instead, they must conserve their time and deliberative resources for the most important ones. Moreover, leaving resolution of lesser issues to the courts is an easy—and sometimes irresponsible—way for a legislature to shift some decision-making costs to judges, about whose workload legislators tend to feel little solicitude. Finally, even the most clairvoyant legislature cannot foresee most of the interpretive questions that will arise during a statute's implementation. Indeed, in the hands of a good lawyer, almost any statutory provision may be shown to have ambiguities, necessitating an additional judicial gloss.


All of these observations are true, yet they do not refute the case for encouraging legislators to consult a checklist of such issues before completing their work on a statute. Obviously, the checklist would not include the myriad interpretive questions that may later arise with a specific statute. Rather, the list would cover only those relatively few issues that frequently recur in the administration of a large number of statutes. And even for those issues on the checklist, nothing would require legislators to address them in the statute. Instead, the list would merely remind legislators in a systematic way that the failure to resolve these issues in the statute will likely generate much costly litigation down the line.

The pre-emption issue is an instructive example of the potential gains from the checklist approach. With Congress having enacted a host of federal statutes that do not expressly address whether they do (or do not) pre-empt state tort litigation, the U.S. Supreme Court has felt it necessary in case after case to adjudicate the question of whether preemption is statutorily implied.

One of the Court's most recent preemption decisions—Warner-Lambert Co. v. Kent (2008)—dramatizes my point about the wastefulness of legislative silence. In Kent, an equally divided Court was unable to resolve a statutory issue that has roiled the federal and state courts for many years but that Congress could have easily and more efficiently clarified—whether and to what extent the federal Food, Drug, and Cosmetic Act pre-empts state laws that seem to preserve some role for tort claims against the manufacturers of drugs approved by the Food and Drug Administration. This clarification would have avoided (and even if done now, could still reduce) enormous litigation costs, while preserving the Court's very limited docket for cases dealing with constitutional questions or those (unlike pre-emption) that Congress cannot readily foreclose in advance.

This same litigation-spawning tendency is true of many of the other questions listed earlier, particularly whether violations of a regulatory statute must be enforced solely by the agency or can also be enforced by victims in a private cause of action.


My checklist proposal bears only a superficial resemblance to longstanding calls for legislatures to write more specific statutes. As a constitutional matter, these calls usually invoke the so-called nondelegation doctrine, enunciated by the Supreme Court at the federal level in the famous sick chicken" case, A.L.A. Schechter Poultry Corp. v. United States (1935). According to this doctrine, which has counterparts in state law, statutes conferring rule-making authority on administrative agencies must at least prescribe an "intelligible principle" that can constrain agency discretion.

Since Schechter Poultry, the Court has never applied this doctrine to invalidate a federal statute—and for good reason. The degree of statutory specificity appropriate for addressing a particular problem is highly variable, and the Constitution provides no guidance to courts in divining what that appropriate level of specificity is. The checklist idea has nothing to say about delegation. It seeks instead to remedy a quite different and nonconstitutional legislative vice: the often inadvertent waste of litigants' and courts' time and money on relatively noncontroversial issues that could readily be resolved in advance. And it seeks to accomplish this in a very simple and low-cost way. Doing so would be no small thing.

Source Citation:"Writing Laws 101." Legal Times (Jan 5, 2009): NA. Academic OneFile. Gale. BROWARD COUNTY LIBRARY. 30 Aug. 2009

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