Leib and Brudney on legislative underwriting of judicial decisions

Over at Prawfsblawg, Ethan Leib has called attention to his new article (coauthored with James Brudney) on legislative underwrites: As the first part of the abstract explains:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

This is a very interesting piece, and I encourage you to read the whole thing.  Lieb and Brudney identify an important area of communication and cooperation between the legislative and judicial branches.  Interbranch communication as a general matter is understudied, and (as the authors note) when it is examined, it it usually in the context of collisions between the branches.

I do wish Leib and Brudney had given more substantial credit (beyond a brief mention) to a little-known but important “statutory housekeeping” program initiated nearly thirty years ago by Robert Katzmann when he was still heading the Governance Institute (an arm of the Brookings Institution). Through that program, the federal appellate courts transmitted to Congress selected judicial opinions identifying problems in the text of a statute — for example, statutory provisions containing ambiguous language, or statutes whose text required the court to fill a gap to determine their appropriate scope. The transmissions were purely informational: the courts did not comment on the enclosed opinions other than to say they might be of interest, and Congress was under no obligation to make any modifications to the statute.  A 2007 review of the program concluded that Congress was making sufficient use of the opinions to justify the program’s continuation.

The program itself was the product of close collaboration between the federal courts, key members of Congress, the administrative staffs of both the judicial and legislative branches, and the Governance Institute. As importantly, it set the stage for open communications between the Congress and the judiciary that was reasonably benign and suspicion-free.  Given the judiciary’s reluctance to engage Congress directly on most matters unless expressly invited to do so, the housekeeping protocols allowed courts to flag important statutory glitches for legislators without concern that they would be viewed as overstepping their bounds.  It was, in a sense, the equivalent of pointing out that someone’s shoe is untied — a small gesture, typically meant to gently assist, but which could be viewed as suspicious or even mocking if a relationship is strained or unfamiliar.

The legislative underwriting that Leib and Brudney identify is broader in scope and much more ambitious than mere “housekeeping” measures.  Among other things, they imagine transmissions that travel not just from the courts to Congress, but back the other way.  This is fair enough, but the eventual success of any more expansive underwriting program will owe a significant debt to the groundwork laid by the “statutory housekeeping” program. By exchanging information and communications frequently when the stakes are small, both entities have begun to build the trust to communicate and collaborate when the stakes are larger.


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