Statutory Design as Policy Analysis

Statutes dominate our legal system, but we have no theory about the best way to design them. The process that the U.S. Congress follows is haphazard and obscure. Any Member can introduce a bill. There are no requirements about who can draft the bill or how the basic decisions that it embodies should be made. The one requirement is that the bill must be written in statutory language, in a form that appears ready for enactment. This means that all the basic decisions about the bill’s design have been reached by the time the bill is introduced, and before it is subjected to any scrutiny by elected representatives or the general public. Any changes that the Members of Congress want to make, if the bill goes forward, must be done through the revision process and on an incremental basis. This Article suggests a more systematic way to design legislation. Based on modern policy analysis, it proposes that the legislative process begin with a statement of a problem to be solved. Congressional committees would begin by analyzing the problem and generating a range of potential solutions. Drafts of proposed statutory language would only be considered at that point. A process of this sort is more likely to generate legislation that serves its basic purpose, which is to produce the results that the Members who vote on it desire. Either Chamber of Congress, or any individual chamber of a state legislature, could implement this approach without the approval of any other body, and without any significant change in its other practices or basic structure. The proposal, moreover, is non-partisan, since members of either Party will want to achieve their own purposes more effectively and reliably.