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: http://ssrn.com/abstract=1150522