Defining definitions

 

Here’s a new article by a law librarian about statutory definitions:

Price, Jeanne Frazier. “Wagging, not barking: statutory definitions,” 60 Cleveland State Law Review 999-1055 (2013).

And here’s its abstract:

 

 

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader’s understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some cases, definition serves predominantly a communicative purpose; it clarifies the speaker’s intent. But at other times the legislative definition empowers; it serves a performative function, investing groups of individuals or instances with rights or obligations. The Article suggests that a better understanding of the effect of definition on a reader’s interaction with a text, coupled with an appreciation of the different roles served by definition, will enable legislators to draft more useful definitions and enable interpreters to better apply those definitions.

 

Un-Legislative History

Wikipedia is often a boon for quick legal research about well-publicized matters.  It’s a great way to find where a statute is codified, or the background of a famous case.  When it comes to legislative history, though, sometimes Wikipedia’s a bust.  For anyone looking for a good example of why one must follow up with proper research into legislative history, please see Wikipedia’s entry on the Dodd-Frank Wall Street Reform and Consumer Protection Act, which passed in July 2010.  As of Nov. 16, 2010, Wikipedia has the following to say about the changes implemented by Title XI of Dodd-Frank:

“The Federal Reserve Act is amended to change the New York Federal Reserve President to a Presidential appointment, with the advice and consent of the Senate.”

In support of this assertion, Wikipedia cites and links to the Enrolled Final Version of HR 4173, available on the LOC’s Thomas page.  Unfortunately, Wikipedia gets it wrong:  The version of the bill that passed Congress removed that language (which had been proposed by the Senate but rejected by the House).  The Senate’s proposal in this regard was snipped on June 17, 2010, weeks before the final bill passed.  Legislative history research–including review of committee meeting transcripts–coupled with news and secondary source coverage bore out the truth.

We always offer cautions when it comes to Wikipedia, and now there’s a handy example to which we can refer.

UPDATE:  Thanks to our helpful reader, Wikipedia has been policed. . .while its lesson remains!

Daniel Webster Congressional Clerkship Act – Empirical Support

The Daniel Webster Congressional Clerkship Act is again winding its way through Congress (H.R. 151 and S. 27).   This legislation would create a law clerk program in Congress much like judicial clerkships for recent law school graduates.

In the Washington University Law Review, Dakota S. Rudesill, who has written on this topic before, argues for this legislation with new empirical support.

In “Closing the Legislative Experience Gap: How A Legislative Clerk Program Will Benefit the Legal Profession and Congress,” Rudesill writes:

“[T]his legislation may die in the Senate as it did last session, unless the legal profession and Congress come to a better and more broadly held understanding of a congressional clerkship program’s potential benefits.

One is that over time it would begin to correct the profound comparative lack of legislative work experience among the legal profession’s leaders that my empirical research has identified. Here, I present new data demonstrating that the incidence of legislative work experience among the profession’s top 500 lawyers, as ranked by Lawdragon.com, trails badly behind experience working for courts, government executive bodies, in private practice, and in academe. These empirical findings supplement my study in this publication in 2008, which focused on federal appellate jurists and law professors at Top 20 law schools.

I argue that closing the legislative experience gap ultimately will benefit the profession and Congress by helping both of these key legal players better understand-and take more seriously-an under-appreciated reality: legislative work is legal work. I conclude by refuting objections, and encouraging lawyers to engage with Congress in support of the bill.”

The comment has some fascinating statistics.  For example, “less than 4 percent” of the “legal superstars” (from lawdragon.com) have worked inside a legislature.   “Academic experience is more than four times as common, private practice and judicial experience are nearly six times as common, and executive branch government experience is nearly seven times as common.”

The article closes with a plea to contact your Senator and ask for their support of S.27, along with a single page download that summarizes the legislation.

Tabloid Constitutionalism: How a Bill Doesn’t Become a Law

Here’s a fun one:

Tabloid Constitutionalism: How a Bill Doesn’t Become a Law

Brian C. Kalt
Michigan State University College of Law

Georgetown Law Journal, Vol. 96, No. 6, — August 2008, p. 1971-1985
MSU Legal Studies Research Paper No. 06-12

Abstract:

What does it take to get Congress to pass a law? To get a judge to declare a statute unconstitutional? To get your law-review article featured in the National Enquirer? Based on one data point, at least, I can say that two of those three things are difficult.

This piece is a follow-up to my 2005 Georgetown Law Journal article, The Perfect Crime. Back then, I argued that there is a fifty-square-mile swath of Idaho – a so-called zone of death – where one can commit crimes with impunity.

In this piece, I first discuss the attention that The Perfect Crime generated: it was covered not just by the Enquirer but by mainstream media, and it inspired a best-selling novel.

I next discuss my efforts to lobby Congress. I initially tried to get Congress to change the law. When that failed, I tried to get Congress to acknowledge my existence. That effort essentially failed as well, at least until a senator read the aforementioned novel.

Finally, I discuss the treatment of my theory in an actual criminal case where the defendant invoked it. The handling of the theory there was almost as dispiriting as Congress’s.

The theory I set out in the Perfect Crime had plenty of limitations and counterarguments; it is not my intention in this piece to criticize people for disagreeing with me. Rather, my intention is just to recount one case study – amusing in some parts, infuriating in others – of the American system of government and law.