56 Harv. J. on Legis. 83 (2019)
The Staffer's Error Doctrine

handle is hein.journals/hjl56 and id is 89 raw text is: 





                                 ARTICLE



            THE STAFFER'S ERROR DOCTRINE



                                JESSE   M.   CROSS*




                                      ABSTRACT

           Over the last forty years, a new type of legislator has arisen in Congress:
      one who, rather than drafting statutes, instead manages a staff bureaucracy that
      produces  these statutes. By becoming a manager of bills, not a drafter of them,
      this new legislator has altered a key relationship in our democracy: that be-
      tween  members  of Congress and  the laws they enact. Yet no study has docu-
      mented  how  this modern relationship works-i.e., has chronicled how today's
      federal legislators learn the contents of bills-and thereby shown the modern
      relationship between legislator and law. Nor has any study reflected on whether
      courts, in light of this altered relationship, need to change the way they interpret
      federal statutes.
           This Article takes up these tasks. First, it reports the findings of an original
      empirical study-one   that, through staffer interviews, chronicles the strategies
      that members  of Congress now use to learn a bill's contents. Its findings reveal
      that, in Congress, legislators' understanding of a bill typically is based on the
      surprisingly brief memoranda and  oral briefings they receive from staff These
      sources educate members   of Congress on  legislative purpose, but they do not
      address the smaller details of statutory text, which generally are left to staffers.
           In light of these empirical findings, the Article then argues that courts
      should adopt  a new  staffer's error doctrine. Under this doctrine, before a
      court applies the plain meaning of a statute, it first confirms that statutory text
      does not undermine  statutory purpose. In the era of managerial legislators, this
      check provides a  useful proxy: it protects legislator decisions from staffer er-
      rors. In this way, the doctrine takes a neglected principle from the old scriv-
      ener's error doctrine-that courts interpreting statutes should review the work
      of unelected legislative staffers for mistakes-and updates it to address modern
      congressional realities.
           This new doctrine has several merits that the Article highlights. First, it is
      compatible with a wide range of interpretive theories-not only intentionalism,
      but also at least four prominent varieties of textualism. Second, the doctrine
      aligns with-and   makes sense of-the  Court's recent direction in statutory in-
      terpretation. This merit is reflected in King v. Burwell, the landmark case inter-
      preting the Affordable Care Act. In King, the Court essentially (if unwittingly)
      performed  the exact check required by  this new doctrine. In so doing, King
      showed  that the staffer's error doctrine is a workable doctrine-and the doc-
      trine, in turn, shows that the interpretive approach in King enjoys previously
      unnoticed claims to methodological legitimacy.


    * Assistant Professor, University of South Carolina School of Law. Yale Law School, J.D.
2011; University of California, Irvine, M.A. 2006. 1 particularly wish to thank William Es-
kridge, Jr., Abbe Gluck, Bruce Ackerman,  John Witt, Nicholas Parrillo, Jack Balkin, Claire
Priest, and all the participants of the 2016 Legislation Roundtable for their helpful and gener-
ous feedback. I also wish to thank my former coworkers at the Office of the Legislative Coun-
sel for the U.S. House of Representatives, as well as the many congressional staffers who
generously contributed interviews to this Article.

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