The Staffer's Error Doctrine

58 Pages Posted: 4 Nov 2019

See all articles by Jesse Cross

Jesse Cross

University of South Carolina School of Law

Date Written: January 1, 2019

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 between members of Congress and the laws they enact. Yet no study has documented 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 errors. In this way, the doctrine takes a neglected principle from the old scrivener’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 interpretation. This merit is reflected in King v. Burwell, the landmark case interpreting 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 doctrine, in turn, shows that the interpretive approach in King enjoys previously unnoticed claims to methodological legitimacy.

Keywords: Legislation, Statutory Interpretation

Suggested Citation

Cross, Jesse, The Staffer's Error Doctrine (January 1, 2019). Harvard Journal on Legislation, Vol. 56, 2019. Available at SSRN: https://ssrn.com/abstract=3475149

Jesse Cross (Contact Author)

University of South Carolina School of Law ( email )

701 Main Street
Columbia, SC 29208
United States

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