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Article Excerpt
INTRODUCTION
I. SOFT LEGISLATIVE LAW A. Hard Statutes B. Soft Statutes C. Ambiguous or Excluded Categories 1. Procedural rules 2. Resolutions given legal effect by prior statutes 3. Bill introduction and other internal actions and statements 4. Ambiguously worded statutes 5. Hortatory statutes 6. Substantively unconstitutional statutes II. HOW DOES SOFT LAW AFFECT BEHAVIOR? A. Soft Law as a Strategic Instrument 1. How law conveys information 2. Theories of communication a. Signaling theories b. Cheap-talk theories B. Soft Law as an Epistemic Instrument C. Soft Law Versus Hard Law: Costs and Benefits 1. Advantages of soft law 2. Disadvantages of soft law III. APPLICATIONS A. The Public B. The President 1. Constitutional authority 2. Soft statutes as political support C. Agencies IV. IMPLICATIONS FOR COURTS A. Statutory Interpretation B. Constitutional Interpretation C. Constitutional Law of Soft Statutes V. A GENERAL THEORY OF SOFT LAW A. Law as Communication Generalized B. Dicta C. Constitutional Law D. International Law CONCLUSION
INTRODUCTION
Soft law has taken the legal academy by storm. In constitutional law, a deluge of recent scholarship argues that the "small c" constitution of unwritten legal norms deserves as much attention as the "big C" written Constitution. (1) Scholars have devoted increasing attention to "the constitution outside the constitution"--extraconstitutional or subconstitutional norms, especially those developed by nonjudicial agents such as legislatures.
In international law, too, scholars have turned their attention from the traditional manifestations of international law--treaties, judicial opinions, government announcements--to what they have also called soft law. (2) Soft international law includes nonbinding declarations such as the Universal Declaration of Human Rights and General Assembly resolutions. Despite their lack of formal legal status, these materials can ultimately have real effect--by working their way into customary international law or by providing the framework for informal interstate cooperation. (3) Soft law in international relations, like small-c constitutional law, consists of norms that affect the behavior of agents, even though the norms do not have the status of formal law.
Or consider the recent controversy about presidential signing statements. (4) When Congress presents a bill to the President for signature, the President sometimes issues a signing statement that interprets some of the bill's provisions. (5) Signing statements are not binding law, but many people believe that they do, or should, influence courts and agencies when these bodies interpret statutes. If signing statements affect the beliefs of private parties about how the President will execute the law, signing statements might affect private behavior. Thus, signing statements, although lacking formal legal power, could have an effect similar to that of the other forms of soft law.
The controversy about signing statements mirrors an older dispute about other soft-law practices in the executive branch. Agencies issue statements of "best practices" and policy manuals that may induce voluntary compliance by regulated parties. (6) Critics complain that administrative agencies produce too much policy through informal and nonbinding guidance documents and policy statements in order to avoid costs associated with formal mechanisms like notice and comment rulemaking or formal adjudication. (7) For example, if a statute requires that wild animals be contained by fences that are "structurally sound," (8) an agency might use notice and comment proceedings to issue a formal rule interpreting the phrase "structurally sound" to require a fence taller than eight feet. Alternatively, the agency might issue a guidance document stating that the agency understands the statute to so require and pronouncing that the agency intends to enforce the statute only against owners with fences less than eight feet high. This statement has no formal legal force; the agency must still defend its interpretation of the statute in an enforcement proceeding or litigation. Nonetheless, many regulated parties will simply construct a fence to comply.
To the private-law scholar, soft law might not seem as exotic as it does in these other fields. A judicial opinion contains a holding that has binding legal effect and reasoning that, in the case of some higher courts, might also have binding effect. But generally speaking, the reasoning in judicial opinions is only "dicta": it does not have binding force. And yet clearly dicta have a great deal of importance, influencing the decision making of subsequent courts (9) and hence people who bring their behavior in line with predictions of how courts will act.
As a final example, also from private law, consider the ubiquitous presence of nonbinding instruments in commercial relations. A letter of intent, for example, signals that two parties have an interest in further negotiations leading up to a binding contract but rarely has legal force itself. (10) It is clear that such "soft contracts" have commercial importance and affect the behavior of the parties that enter them. (11)
The academic literatures on these topics have different concerns, yet the themes are similar. Soft law refers to statements by lawmaking authorities that do not have the force of law (most often because they do not comply with relevant formalities or for other reasons are not regarded as legally binding (12)), but nonetheless affect the behavior of others either (1) because others take the statements as credible expressions of policy judgments or intentions that, at some later point, might be embodied in formally binding law and reflected in the coercive actions of executive agents, or (2) because the statements provide epistemic guidance about how the authorities see the world. (13) Individuals, governments, states, and other agents use soft law in order to enter commitments and influence behavior where legal mechanisms are regarded as undesirable.
Against this backdrop, it is a puzzle that no parallel literature has emerged (14) One does not have to look in the field of legislation and legislative process. hard to find a similar form of soft law: the congressional resolution. Congressional resolutions--whether concurrent or one-house--generally have no formal legal effect. (15) Periodically, proposals surface to pay more attention to the resolution as a mechanism for influencing statutory interpretation, (16) foreign policy, (17) or some other external matter. Yet the soft statute has received little attention in scholarly work on legislation. (18) The conventional wisdom is that such measures lack importance because they do not create binding legal obligations. (19) They are cheap and often happy talk by legislatures, commending military officers for good service or sports teams for winning championships.
In fact, many congressional resolutions are very serious: they assert controversial foreign policy judgments, urge the President to intervene in humanitarian crises or to avoid a military conflict, criticize allies and enemies, forecast plans for taxation and regulation, send signals to regulatory agencies about Congress's expectations, criticize the President's interpretations of executive power, advance interpretations of constitutional provisions and statutes, encourage state and local governments to address policy problems, identify public health threats that need funding, and much more. (20) Statutory soft law deserves more attention than it has received, especially in light of the large cognate literatures that examine the workings of soft law in other fields. In the course of analyzing congressional resolutions and other forms of legislative soft law--including hortatory statutes--we advance a general theory that explains the attractiveness of soft law, its advantages and disadvantages, and its place in our constitutional order. We show that soft public law is preferable to hard public law in identifiable cases and contexts.
The congressional resolution is essentially a "soft statute"--a device for communicating the policy views and intentions of one or both houses of Congress. Legislative soft law communicates congressional intentions more accurately and cheaply than does a regular statute, which will usually reflect the views of the President as well. Legislative soft law communicates the views of a chamber or the Congress more accurately than do statements of individual legislators, whose views will often diverge from that of the majority.
These communications can influence the behavior of the public and of other political institutions through three main mechanisms. First, a congressional communication affects people's beliefs about how Congress will (formally) regulate in the future, to the extent that it credibly reveals the political preferences of Congress (or its members or a substantial coalition of its members or its leadership, etc.). A soft statute thus anticipates a hard statute, but when the target audience reacts appropriately to the soft statute, the hard statute may become unnecessary. Second, a congressional communication may have a purely epistemic effect. Information about Congress's views might cause people to change their beliefs about the state of the world. (21) Third, in some settings other institutions that generate formal law take legislative views as an input. Agencies, courts, and the President regularly incorporate legislative views as one of many factors in the construction of binding policy.
Part I defines soft law and distinguishes it from related concepts. Part II explains how legislative soft law affects behavior. Part III discusses applications of the theory to the public, the President, and administrative agencies. Part IV discusses the implications of the theory for courts, focusing on statutory interpretation and constitutional adjudication. Part V offers a general theory of soft law, linking our analysis of soft statutes with soft constitutional law, soft international law, and other fields. We hope to stimulate thinking about the role of informal or nonlegal behavior in lawmaking institutions--a public-law analogue to the private-law-focused literature on law and social norms. (22)
I. SOFT LAW IN LEGISLATURES
We define soft law as a rule issued by a lawmaking authority that does not comply with constitutional and other formalities or understandings (23) that are necessary for the rule to be legally binding. We define hard law as a rule issued by a lawmaking authority that does comply with constitutional and other formalities or understandings that are necessary for the rule to be legally binding. The lawmaking body uses soft law because the hard-law approach has disadvantages. Sometimes, but not always, soft law will produce the same behavioral effects that an otherwise equivalent hard law would have produced; at other times, soft law might have more desirable consequences than the nearest hard-law equivalent would.
A. Hard Statutes
Article I, section 7 of the U.S. Constitution requires that a bill be approved by both houses of Congress (bicameralism) and signed by the President (presentment). (24) The Supreme Court has rejected many schemes that deviate from this "'finely wrought' procedure." (25) However, congressional pronouncements can become the law of the land in other ways as well. Treaties are approved by two-thirds of the Senate. (26) Bills vetoed by the President nonetheless become law if approved by two-thirds of the House and the Senate. (27) In these latter cases, however, the law still satisfies the relevant procedural requirements. In most cases, compliance with these formalities distinguishes hard statutes from soft statutes. However, we will discuss some ambiguous cases below.
B. Soft Statutes
Soft statutes do not meet the formal requirements for duly enacted legislation, but nonetheless may affect behavior. Two prime examples of soft legislation, and the ones on which we focus, are the simple resolution and the concurrent resolution. (28) A simple resolution is a resolution passed by a majority of one house of Congress. (29) Concurrent resolutions are approved by majorities of both houses of Congress. (30) Resolutions are used for a remarkably varied assortment of activities. A nonexclusive list from recent Congresses includes: (1) foreign policy judgments (for example, urging the European Union to maintain an arms embargo on China, (31) and calling on the President to recognize the Armenian genocide (32)); (2) urging revision of administrative regulations (such as those affecting industrial truck operator training, (33) labeling of clothing, (34) and the distribution of resources held for disaster relief (35)); (3) low-cost symbolic interest group payoffs (celebrating Cancer Awareness Month (36)); (4) empty happy talk (congratulating a college football team for winning the championship (37)); and (5) administrative acts and housekeeping. (38) Resolutions from earlier Congresses are similar.
Congress agrees to a few dozen concurrent resolutions per year; each house agrees to a few hundred simple resolutions per year. Most of the concurrent resolutions fall into categories (3), (4), and (5); only a few express important sentiments, usually regarding foreign policy. The same is true for the House's simple resolutions. However, the Senate agrees to many, sometimes dozens of, significant simple resolutions in the first two categories.
Consider some recent proposed and agreed-to resolutions from 2007. One resolution expresses "disapproval of the Indiana Department of Environmental Management's issuance of a permit allowing BP to increase their daily dumping of ammonia and total suspended solids into Lake Michigan" (39) and urges Indiana to reconsider the issuance. (40) Another resolution states that:
it is the goal of the United States that, not later than January 1, 2025, the agricultural, forestry, and working land of the United States should provide from renewable resources not less than 25 percent of the total energy consumed in the United States and continue to produce safe, abundant, and affordable food, feed, and fiber. (41)
A third states that there should be an expansion of the program under which state and local law enforcement authorities arrest aliens who have violated U.S. law and encourages the Secretary of Homeland Security to ensure expedited consideration of a border fence. (42) Finally, the Iraq War Policy Resolution expresses the sense of Congress that the United States should not deepen its military involvement in Iraq and specifies goals for the ongoing mission. (43)
These four statements provide important information to affected parties. Factories, municipalities, and residents living along the Great Lakes will make investments with an eye to possible congressional regulation in the future. So will the energy industry and people who live along the borders. The Iraq resolution signaled to the President that congressional and public support for the Iraq intervention had waned.
C. Ambiguous or Excluded Categories
Many forms of legal pronouncements have features that resemble soft law and therefore warrant mention even if they are not the centerpiece of our analysis. These limitations make an already unwieldy topic more tractable.
1. Procedural rules
The Rules of Procedure in the House and the Senate are a hybrid of soft and hard law. Because the House and Senate Rules are enacted pursuant to established procedural formalities, they meet our definition of hard law. However, they do not have formal legal effect outside the legislature: they are not judicially enforceable and they are not regarded as binding law by other legal authorities. In this way, congressional rules resemble soft law. Because others have discussed procedural rules, (44) and because we emphasize soft law that regulates external behavior rather than the decision making of government bodies, (45) we do not discuss procedural rules.
2. Resolutions given legal effect by prior statutes
Sometimes a congressional enactment does not meet the formal procedural requirements for new legislation, but is given formal legal effect because of a prior duly enacted law. The legislative veto, for example, allows one or two houses of Congress to override a policy decision of the executive branch or administrative agency by using a simple or concurrent resolution. (46) The negative legislative veto allows policy to be implemented unless Congress disapproves; the positive legislative veto forbids policy to be implemented unless Congress approves ex post. (47) The Supreme Court has held a negative one-house legislative veto unconstitutional, and its reasoning clearly suggested that the positive legislative or two-house veto would be unconstitutional as well. (48) A related mechanism permits Congress to use a resolution to terminate a prior statutory delegation of authority to the President. (49) The legislative veto and related mechanisms are soft statutes in the sense that they do not satisfy the bicameralism and presentment requirements. But they are hard law because a prior duly enacted statute grants formal legal effect to the simple or concurrent resolution.
3. Bill introduction and other internal actions and statements
It is tempting to say that the soft statute is similar to the introduction of a bill. Bills are introduced constantly in both houses. Most are never passed; on some, virtually no action is taken at all. At the same time, the introduction of a bill might reveal information about congressional preferences, and in this way may be functionally similar to a soft statute--providing weaker but still informative signals of congressional views. A similar argument could be made about other statements that are made in a legislative session--speeches on the floor, statements made at oversight hearings, reports, and so on. As we will argue in Part II.C, however, these types of statements rarely have much credibility. In addition, they have been extensively discussed in the literature on legislative interpretation. For these reasons, we emphasize other forms of legislative soft law and discuss these mechanisms only in passing.
4. Ambiguously worded statutes
International relations scholars sometimes classify ambiguous treaties as soft law. Whatever the merits of this judgment for understanding international relations, (50) we adopt a different approach in our analysis of statutes. American courts almost always enforce ambiguous statutes, using canons of interpretation to clarify the meanings of those statutes. These statutes thus are lawfully binding. In rare cases, courts refuse to enforce ambiguous statutes. In administrative law, for example, the nondelegation doctrine--to the extent that it remains valid law (51)--prohibits Congress from granting authority to executive agencies without an "intelligible principle" to guide them. The vagueness doctrine renders criminal statutes unenforceable if they are too vague. (52) In extreme cases where statutes are unenforceable because they are ambiguous, it might make sense to classify them as soft law, but their very ambiguity also means that they can have little effect on people's behavior, as no one can know what they mean. For this reason, we will exclude ambiguous statutes from the category of soft law as well.
5. Hortatory statutes
By contrast, there are numerous statutes that are absolutely clear and that satisfy the procedural requirements for legislation, but that also have no formal legal effect because the statute, by its terms, provides that the rules it sets down cannot be enforced, or because Congress refuses to appropriate funds to enforce them. (53) For example, the Supreme Court interpreted the weak language in the Developmentally Disabled Assistance and Bill of Rights Act as intending "to encourage, rather than mandate, the provision of better services to the developmentally disabled." (54) In another case, the Court noted that "Congress sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that though falling short of legislating its goals, serve as a nudge in the preferred directions." (55) Weak fair-housing laws were sometimes said to be hortatory pronouncements with extremely weak enforcement mechanisms. (56) Before the courts interpreted the National Environmental Policy Act to impose procedural burdens on agencies, the command to "consider" environmental impact was thought to impose no enforceable obligations. (57) Consider also statutes that create voluntary regulatory programs. (58) These hortatory statutes are hard law under our definition because they satisfy procedural requirements; however, because they have no binding legal effect, they resemble soft law.
6. Substantively unconstitutional statutes
Many other statutes satisfy the bicameralism and presentment requirements, and other procedural formalities, but they are "substantively" unconstitutional--they violate the First Amendment or due process requirements or exceed the scope of Congress's delegated powers. We will treat these statutes as hard statutes because, in the usual case, Congress seeks to achieve a legal effect but is thwarted by the courts or the Constitution. In a system with judicial review, the substantively unconstitutional statute or even procedurally invalid statute imposes binding legal obligations unless and until a court strikes down the statute. In a system without judicial review, when legislators overstep constitutional limitations and the President agrees, substantively unconstitutional statutes will nevertheless carry formal legal force. In some cases, however, Congress might enact a statute that it expects to be struck down, in the hope of achieving soft-law-style effects--sending a signal to the courts that their jurisprudence conflicts with public values or to dissenting members of the public that their behavior violates fundamental social norms. The Flag Protection Act of 1989, struck down by the Supreme Court in United States v. Eichman, (59) is a law of this sort. The Act was passed after the Supreme Court held flag burning a form of protected speech in Texas v. Johnson. (60)[degrees] In addition, many statutes are nonjusticiable: courts refuse to hear the merits of cases brought under them because they believe the statutes implicate political questions such as the balance of power between the legislative and executive branches. The War Powers Resolution, (61) which regulates the executive's use of military force, is one such example. (62)
II. How DOES SOFT LAW AFFECT BEHAVIOR?
We propose two main theories for the use of soft statutes in particular and soft law in general. First, Congress or another lawmaking body uses soft law to convey information about future intentions to enact hard law, allowing people to adjust their behavior in advance of binding statutes and in some cases avoiding constitutional requirements that apply to hard law. As we will show, soft law can be useful in this way even when the anticipated hard-law successor never materializes: if people adjust their behavior in anticipation of hard law, hard-law enactment might not be necessary. (63)
Second, Congress uses soft law to convey information about its beliefs about the state of the world--both factual and normative. The Armenian Genocide resolution, for example, expressed the factual belief that the Armenian Genocide actually occurred--a historical event that is officially denied in Turkey--and the normative belief that the Armenian Genocide was wrong, rather than (as Turkey sometimes argues in the alternative) a series of massacres that were an excusable incident to war. Congress's beliefs about states of the world may influence the beliefs of other people.
In both settings, soft law is a signal that provides information. Like other signals, soft law can convey information more or less accurately and more or less efficiently. Soft law is preferable to hard law when the signal conveys information more reliably or more cheaply than hard law does. This Part surveys the relevant variables that affect the direction and magnitude of these tradeoffs.
A. Soft Law as a Strategic Instrument
1. How law conveys information
At first sight, it may seem that the difference between soft and hard statutes is considerable. Hard statutes have the force of law; people comply with them in order to avoid sanctions. Soft statutes do not, so people should not follow them. However, we can profitably think about both types of statutes in a different way. A regular statute is essentially an act of communication that satisfies certain formal requirements set out in the Constitution and embodied in tradition. By voting and satisfying other formalities, Congress communicates to courts and other legal agents that certain behavior will now be subjected to sanctions. The courts and other agents in turn interpret these communications in light of specific disputes or factual settings, and issue orders to another set of agents who have coercive powers--police officers, wardens, soldiers, marshals. Thereupon these agents engage in the designated actions. Anticipating this chain of events, most people engage in the desired behavior rather than risk sanctions.
The agents who receive this signal from Congress do not in any sense act automatically. Indeed, agents often refuse to comply with Congress's order. Most commonly, judges refuse to order agents to comply with a regular statute that violates the Constitution. Executive officials, in turn, will refuse to enforce the statute if judges forbid them to. Less commonly, the President and executive agencies will refuse to follow or enforce a statute if they believe that it violates the Constitution. (64) Anticipating these responses, many ordinary people might refuse to comply with the statute. Although scholars typically treat sanctions as "fixed," that is, exogenously determined, in fact they emerge endogenously in a large-scale game in which people with sanctioning power obey lawmakers only as long as lawmakers behave legitimately and lawmakers create sanctions in anticipation of how the people with sanctioning power respond. (65)
A soft statute also reveals...
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