Katzmann: Judging Statutes

By James R. Maxeiner

Judge Robert A. Katzmann’s newly-released book Judging Statutes (Oxford University Press) recommends reforms that echo history. His book is a welcome contribution toward saving America from dead laws and broken government.

In the 1870s and 1880s a wave of interest in better legislation swept the world. It washed up on our shores. Better lawmaking was one of the first topics that the newly-formed American Bar Association took up (already in 1884). In 1885 a committee of the Association of the Bar of the City of New York reported “A Plan for Improving the Methods of Legislation of this State.” In 1886 the American Bar Association adopted a resolution that “The law itself should be reduced, so far as its substantive principles are settled, to the form of a statute.” The Committee that proposed that resolution colorfully asked in its report in 1885:

We can imagine a primitive society, in which a king and his judges were the only magistrates. They had made no laws. The judges decided each controversy as it arose, and by degrees what had been once decided came to be followed, and so there grew up a system of precedents, by the aid of which succeeding cases were decided. Hence came judge-made law. But could any sane man suppose that this was a scheme of government to be kept up when legislatures came in?

The United States, however, rejected legislated codes in favor of judge-made common law.

Judge Katzmann’s best recommendations are not for the judiciary but for legislatures. They include:

  1. Legislators should make greater use of the legislatures’ own drafting services.
  2. Legislators should have guidebooks and checklists of common issues.
  3. Legislatures should provide default rules for legal issues not covered directly.
  4. There should be authoritative legislative history (he could have added that there should be official reports to accompany not some, but all statutes).
  5. Statutes should be regularly corrected and updated.
  6. There should be an agency, à la a ministry of justice, to formulate legislation (he could have added that such a ministry could be responsible for correcting and updating old statutes and for making sure that new ones coordinate with existing statutes).
  7. Judges should be involved in revising statutes.

We should follow Judge Katzmann’s recommendations. Better late than never. Delay does give us one benefit: we can draw on 130 years of experience from other countries with laws that are more coherent, less ambiguous, better coordinated, and more up-to-date than ours. Their laws can be understood and followed--in large measure because they anticipated Judge Katzmann’s legislative recommendations.

Judge Katzmann has less to say about how his own branch, the judiciary, could improve its performance. He does reject Justice Scalia’s textualism in favor of purposivism (looking past the word of a statute to its purpose). But an issue which deserves greater attention is judicial superiority. Unfortunately, the judge is unwilling to give up the judiciary’s grip on legislation. He signals that in his title: Judging Statutes.

America’s judges spend too much time judging statutes and too little time applying them. Judge Katzmann says the principal if not exclusive role of judges in understanding statutes is to “articulate the meaning of the words of the legislative branch.” That’s not the case in other countries with better legislation. Most of the time, judges are not expected to say what statutes mean. The statutes say what they mean. Most of the time, judges should be determining simply which statutes are relevant to the facts of the case. They need to fit the facts to the statutes and not rewrite the statutes to fit the facts. Authoritative interpretations of statutes--prescribing what statutes are to mean for the future--should be exceptional and not routine.

This criticism notwithstanding, we should thank Judge Katzmann for a work that can help Americans learn to deal better with statutes in the future.