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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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