Friday, January 3, 2014

What's in a Name?

Short titles, or "popular names," are an easy way for politicians to make their proposed bills more memorable. These legislative nicknames can influence public perception of the law's purpose or effect. They can also make complicated legislation more easily digestible in media sound bites – and might even help strong-arm others into approving the proposed bill. For instance, what hapless lawmaker would dare vote against something called the "Abandoned Infants Assistance Act" in an election year? (Actually, we can't tell – the Congressional Record reported only a voice vote, rather than an individual roll call vote.) And would the law enforcement surveillance powers which were expanded after 9/11 have been debated more hotly before passage, had they not been draped in the red-white-and-blue moniker "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act"? (More short titles can be browsed or searched via the Popular Names Table which is published with each version of the U.S. Code, including a free version from the federal Office of the Law Revision Counsel.)

A recent article on Inter Alia, the online edition of the Yale Law & Policy Review, traces the evolution of legislative short titles "into an overtly political and manipulative device." In SCOTUS Short Title Turmoil: Time for a Congressional Bill Naming Authority, author Brian Christopher Jones also highlights a possible unintended consequence of carelessly-nicknamed bills: namely, their review by courts as evidence of legislative purpose. The Supreme Court's June 2013 ruling on U.S. v. Windsor, which struck down the federal Defense of Marriage Act, discussed the possible significance of the act's short title in both the majority and dissenting opinions. Attorneys for both sides raised the issue during oral argument; writing for the majority, Justice Kennedy also incorporated discussion of DOMA's short title from its legislative history.

(Jones also lobbies for the creation of a federal bill-naming authority within the U.S. Congress, to help prevent misleading or inaccurate short titles. A similar system exists in the Scottish Parliament, which Jones explored in a forthcoming Florida Journal of International Law article, available on SSRN.)

In the meantime, legislators – and courts – will have to consult traditional statutory interpretation guides when it comes to these short titles. The treatise Statutes and Statutory Construction (Reserve  KF425 .S966 2007 & online in Westlaw's SUTHERLAND database) contains a few sections about the purpose of short titles along with advice for drafting. Even more guidance can be found in the Goodson Law Library's collection of legislative drafting resources, which can be searched in the Duke Libraries Catalog with the subject heading "Bill drafting – United States". For help locating these materials, be sure to Ask a Librarian.

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