Interbranch Information Sharing: Examining the Statutory Opinion Transmission Project
24 Pages Posted: 25 Jul 2020
Date Written: June 30, 2020
In 2007, the Administrative Office of the U.S. Courts revitalized a little-known program to “foster communication” between the judicial and legislative branches, enabling federal appellate judges to send to Congress, without further comment, opinions "that describe possible technical problems in statutes." In our view, such a program is sensible: The Judiciary is uniquely situated to identify problematic statutory text. But this protocol also gives rise to several questions, including, perhaps most prominently: What happened next? Did the appellate courts send any opinions to Congress? And did Congress respond? In this Essay, prepared for a symposium on judicial reform, we analyze and assess this statutory opinion transmission project.
We set out the recent statistics for this inter-branch protocol and then describe in detail some of the issues identified and addressed by the courts and Congress. These data and examples suggest that this inter-branch protocol has indeed helped to foster communication between the Judiciary and Congress. But we also suspect that this communications channel is well below its capacity and, indeed, its utility. And so our proposal for reform is simple: We ask judges to send more opinions to Congress. To ground our reform, first, we think the Judiciary should further institutionalize the internal processes that helped to form this inter-branch channel in the first instance. Second, we think the Judiciary should presumptively transmit to Congress any opinion that identifies judicial disagreement over the meaning of statutory text, no matter whether that disagreement is evinced by way of a concurrence, dissent, or circuit conflict. These steps, we hope, will lead both to improved statutory text, as well as to improved inter-branch communication.
Keywords: Courts, Congress, Statutory Opinion Transmission Project, Katzmann, Wheeler, Governance Institute, Inter-Branch, Inter-Branch Communication, Judicial Reform, Statutory Interpretation, Inter-Branch Dialogue
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