LAWMAKERS NOT DOING THEIR JOB

Consciously or unconsciously, the other branches of government have come to rely on judges to avoid absurd or undesirable results through creative

interpretation of the law.

Thus, it is more and more usual to find statues written in murky language, as if designed to hide the intent of the legislature. Or, one finds language that appears to be clear on its face but that is contradicted by equally clear language elsewhere in the same statute or in the legislative history.Or, one finds language of such generality that the courts, in interpreting it, must provide the policy content that is otherwise missing.

The reasons for this phenomenon are no secret. Sometimes legislators agree on a particular meaning but fail to express it correctly or precisely because of poor draftsmanship.

More often, however, the use of imprecise or misleading language becomes a tool of legislative compromise. It avoids the difficult political choices that have to be made where a statute is drafted clearly.

When statutory language is subject to varying interpretations, all sides can claim victory, in the hope that the courts will eventually adopt their position. So they agree to disagree and then try to shade the process of

interpretation by sprinkling the record with contradictory snippets of legislative history.

This is not, in my view, a healthy process. Whether it results from poor draftsmanship or by intent, when the legislative and executive branches of government pass statutes that are devoid of objective content, they abdicate their responsibility to make the law.

Under our system of government there is, of course, good reason why law is to be made by elected officials and not the judiciary: If legislation is to conform by and large to popular will, it should be shaped by those who have to stand for re-election and not by those who are shielded from the political process by life tenure.

Legislators are able to escape popular wrath for unpopular legislative choices by agreeing to language that is nebulous and then bashing the courts as activist when they adopt a meaning that turns out to be politically inconvenient.

This process also has unhealthy effects on the judiciary. As I noted before, the process of making law through judicial decision is a seductive one. It is very tempting to use creative interpretation to cure a variety of ills, from poor legislative draftsmanship to more substantive problems in our society.

By constantly dealing with statutes that mean little or nothing on their face, or whose plain meaning is undercut by legislative history, judges and lawyers tend to forget that statutory language is the principal or even dispositive index of the legislative will.

It is disconcerting to note how frequently I see briefs that start an argument with reference to the legislative history and go on to discuss policy, overlooking the statutory lan guage altogether.

By and large courts have done their best to deal with this abdication of responsibility by the other branches of government, interpreting murky language, supplying policy content and reconciling conflicts between statute and legislative history.

But in so doing, they have been abetting a process that undermines our tripartite system of government and that brings the judiciary into disrepute.

I am personally convinced, for example, that the current controversy over whether judges are too activist is due in large part to this phenomenon, and not to an inherent tendency of judges to grab power.

The solutions to this problem, if one agrees it is a problem, are not easy, and full resolution may not be possible. In my view, however, courts have a responsibility to resist the legislative sleight of hand that shifts the policy debate from the floor of Congress to the well of the courtroom.

One possible technique is to interpret statutory language as written, regardless of what might be dire consequences. The Supreme Court did so in TVA vs. Hill, where construction of the Tellico Dam was halted to avoid destruction of the Snail Darter, a tiny fish.

While the case caused much hand-wringing at the time, it squarely placed responsibility for the result - desirable or not - on Congress where it belonged.

One can only wonder what would have happened if the courts had interpreted Section 1 of the Sherman Antitrust Act in the same straightforward fashion. That section, as you may recall, prohibits all combinations and conspiracies in restraint of trade, using language that literally covers all contracts.

The courts looked at that language and decided that it could not mean what it said and therefore read the word "unreasonable" into the section. By so doing, the courts agreed to provide policy content to a statute that had none.

Whether one is happy with the development of antitrust law over the past century or not, the fact remains that it is largely judge-made law, an abdication of legislative will.

Another possible way of dealing with this problem is to refuse to give effect to legislation where there is significant doubt as to whether the participants in the enactment process in fact had a meeting of the minds.

This is a blunt tool and ought to be used with some care. But it is not that rare to run into a statute that is seriously internally inconsistent, or where clear statutory language is contradicted by equally clear language in the legislative history.

Such instances are disturbing because they raise serious doubts whether all of those who, under our Constitution, are supposed to assent to legislation, in fact were agreeing to the same thing.

What if there is significant proof that they did not? Does the product of their efforts still become law?

Early in the first year of law school law students are taught a case involving a contract for cargo to be delivered on a ship called the Peerless. It turns out there were two ships Peerless and the buyer and seller each had a different one in mind when they made the contract. The court in that case held that no contract was created because there was no meeting of the minds.

This is pretty much black-letter contract law. Ought legislation, which has effects far graver than private contracts, be given effect where there was no meeting of the minds of all those necessary to make it law?

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