Scalia: Write better laws: no more garbage in—garbage out

Earlier this week we noted Justice Scalia’s new book, Reading Law. But reading won’t be enough. We need to worry about writing law. In an interview on C-SPAN a few years ago, Justice Scalia said: “But in this job, it’s garbage in, garbage out. If it’s a foolish law, you are bound by oath to produce a foolish result, because it’s not your job to decide what is foolish and what isn’t. It’s the job of the people across the street.”

The current Congress telegraphs that we won’t get well-written, indeed any laws, from across the street.  What to do about it? In most countries, for well over a century, government ministry drafts laws, presents them to the public for discussion, to the government for approval and then finally to the legislature for consideration. In Germany, for example, the Federal Ministry of Justice is a “legislative ministry.” Its principal tasks are to make sure that bills would make good rules and, if adopted, would work in practice.. The legislature and the public consider for enactment-ready well-designed bills. The legislature avoids eleventh hour compromises held together with duck tape.

Read more: James R. Maxeiner, Legal Certainty: A European Alternative to American Legal Indeterminacy?, Tulane Journal of International and Comparative Law, vol. 15, No. 2, pages 541, 556-567 (2007) available at SSRN:


  • We have government offices with that same function. I don’t know that Congress has such an office, but every state with which I am familiar has an Office of Legislative Services (or some such), charged with writing bills to implement legislators’ ideas.

    The problem isn’t that no one is doing this, it’s that no one is doing it well.

  • “The problem isn’t that no one is doing this, it’s that no one is doing it well.”
    Define “well” from the perspective of a career politician.

  • Justice Scalia thinks that if he wrote all of the laws, you could eat off of them because he would see every possible problem, every possible ambiguity. I’m sure Cain was telling Abel he was not doing his job very well and it would be so much better if everyone was as competent as he was.

    What are we saying here? Politicians can write effective laws. Could they ever and now can’t or they never could? How do we fix the problem? The solution offered in this post that we need some government ministry to write the laws is absurd. Right, we need another bureaucrat to draft some laws for us because we have none doing this now.

    Yeah, Mike, there are career politicians. You can hate them. Apparently Americans don’t. See Obama, Barack; Biden, Joe; Ryan, Paul. And funny thing is of the four of these lawyers, you would least want Mitt Romney writing our laws.

    Scalia’s answer is “the other guys should do their jobs better.” That’s not a solution. That’s an “everyone else but me is dumb” gripe.

  • Many of Scalia’s issues with “stupid bills” could be resolved by making legislation adhere more closely to a single purpose. That is to say, we shouldn’t have a bill that, hypothetically, creates a 10-day waiting period for purchasing a handgun, and allocates $100 million in flood-damage relief to Louisiana.

    Concise bills can be crafted to address complex problems if we limit illogical add-ons and kickbacks.

  • Scalia is a perfect example why we should have term limits for Supreme Court Justices..

  • I am an engineer.

    I worked for a large company that had its own legal department and BIG (dollar wise) contracts.

    I read our biggest (dollar amount per year, indefinite) 180 pages and found more mistakes in logic, common sense, and fourth grade arithmetic than you would believe.

    Circular references, agreements to agree, listing four possibilities then addressing only two, two PAGES of mathematics that I condensed into ONE LINE (OK, longish equation), references to non existent sections, etc.

    The law department hated me. Fortunately, they had one lawyer who didn’t think he was god and he spent the next two years, renegotiating and cleaning up the mistakes I found in four days of reading the contract w a red pen in my hand.

    Legal got so shirty I challenged them: I said I could write the same contract, correctly, easier to understand, more enforceable – in 8 pages. They didn’t accept the challenge.

  • PS

    I have taken law classes, and I once had a professor (moonlighting judge) complain that my writing was too concise.

    He admitted I hadn’t left anything out, or reasoned incorrectly, but I was writing a paragraph and the other (beginner) students were writing a page and a half.


  • I think Americans do hate career politicians. They’d vote them out more often if not for the career politicians rigging the electoral system to preserve their incumbency.

    Alas, writing horrible and overly-complex laws seems to be a feature, and not a bug, of our current political class. Obamacare is perhaps the pinnacle of that (i.e., “we have to pass this bill to find out what is in it”). And let us not forget that poorly-drafted complexity creates jobs for the sea of administrators in our bloated federal agencies, thereby adding to the political power of the legislators who passed the bill.

  • David Smith, besides demonstrating that you are smarter than all the lawyers – even a better lawyer then them, way cool! – what is your point exactly? All lawyers are so dumb?

    Kestrel, I’m not unmindful of your point but you are not offering a real solution. Are you really suggesting we (who is we?) put limitations on the way legislature makes laws? How? You can only address one “purpose” per bill? Gosh, how do we decide that and how many lawsuits are we creating?

    Democracies are imperfect. We pick bad leaders in many cases because we don’t spend the time and effort to pick the right ones. In the good ole days it was the same way… and probably worse. We can try new and innovative things to make thing better but, really, how much meaningful tinkering with our democracy in the last 100 years has been really effective? (Except Prohibition of course. That ruled.)

  • Titus writes “Office of Legislative Services (or some such), charged with writing bills to implement legislators’ ideas. ”

    That’s the problem. Here the offices do only what the legislators tell them to do. In other countries, the government office works with the executive departments and the cabinet to present legislation for the public to consider and then for the government to present to the legislators to review, revise and adopt. It’s all about quality control for laws that govern everyone. It reduces or even eliminates earmarks and pet projects for a few legislators. In that world lobbying scandals are considerably less common.

  • Ron,

    Lawyers are not necessarily dumb. But, they are all so busy “getting theirs” none of them even try to clean up the mess.

    The lawyers have allowed the nit picking, sophism of a high school philosophy club to become the law of the land – mainly by default.

  • Part of the problem is that the majority side of the legislature has learned that a useful tactic is to draft a large bill and then bring it to a vote so fast as to not give the opposition the time to fully read let alone analysis it. It’s hard to argue convincingly against something you don’t understand, because all your left with “the other guys wrote is so vote NO”.

  • One of the many shortcomings of Justice Scalia’s approach to interpreting statutes is that, although he concedes that they are written hastily and sloppily, he wants to interpret them literally, as if each word had been chosen after careful thought. Seems a bit inconsistent to me.