A Mechanism for Statutory Housekeeping: Appellate Courts Working with Congress
![handle is hein.journals/jappp9 and id is 135 raw text is: A MECHANISM FOR STATUTORY HOUSEKEEPING:
APPELLATE COURTS WORKING WITH CONGRESS
Robert A. Katzmann* and Russell R. Wheeler**
This year the bipartisan leadership of the House and Senate
Judiciary Committees called for the United States Courts of
Appeals' widespread participation in a decades-old project to let
Congress know about possible technical flaws in statutes.' Its
chief purpose is not to promote remedial legislation but rather to
provide legislators and their bill-drafting staffs information
about how appellate courts interpret the legislative product. The
project is noteworthy as an approach to the long-standing search
for practical ways of alerting Congress to drafting problems in
judicial opinions and as an example of legislative-judicial
cooperation and communication.
I. SOME BACKGROUND
Over forty years ago, Judge Henry J. Friendly of the
Second Circuit, commenting on the importance of statutory, law,
bemoaned the problems posed by defective draftsmanship,
especially in uncontroversial legislation.2 He described the
occasional statute in which the legislature has succeeded in
* Judge, United States Court of Appeals for the Second Circuit.
** President, the Governance Institute.
1. Ltr. from U.S. Sen. Patrick Leahy & U.S. Sen. Arlen Specter to James Fransen,
Legis. Counsel, U.S. Sen. (Feb. 14, 2007) (on file with authors) [hereinafter Leahy/Specter
Letter]; and Ltr. from U.S. Rep. John Conyers, Jr., & U.S. Rep. Lamar Smith to M. Pope
Barrow, Legis. Counsel, U.S.H.R. (May 23, 2007) (on file with authors) [hereinafter
Conyers/Smith Letter], both enclosed with Memo. from James C. Duff, Dir., Admin. Off.
of the U.S. Cts., D. Brock Homby, J., U.S. D. Ct. for the D. of Me., & Robert A.
Katzmann, J., U.S. Ct. of App. for the 2d Cir., to Judges, U.S. Cts. of App., and Clerks of
Court, U.S. Cts. of App., Project to Provide Congress with Appellate Opinions Bearing on
Technical Matters of Statutory Construction (July 19, 2007) (on file with authors).
2. Henry Friendly, The Gap in Lawmaking-Judges Who Can't and Legislators Who
Won't, 63 Col. L. Rev. 787, 794 (1963).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 9, No.1 (Spring 2007)](ViewImageLocal?handle=hein.journals/jappp9&div=9&collection=&method=preview&ext=.png&size=3)
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A Mechanism for Statutory Housekeeping: Appellate Courts Working with Congress
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