Wednesday, May 7, 2014

What's in a Name?

The last few decades have seen a rise in clever statute names. To name a few attention grabbers from the last decade: CAN-SPAM Act, SAFETY Act, PROTECT Act, USA PATRIOT Act. These catchy titles, often with overtly partisan and misleading language, are designed to influence citizens, including legislators and judges, into supporting the bill’s passage.

George Orwell wrote: “Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” Bill naming is not exactly an exercise in smoke and mirrors, but it does have significance beyond obtaining public support.

The title of a law played a part in the Supreme Court analysis of the Defense of Marriage Act. In United States v. Windsor, 570 U.S. 12 (2013) the majority repeatedly cited the law’s name as evidence of its animus toward gay men and women. In Shelby County v. Holder, 133 S. Ct. 2612 (2013) the Court again considered the title of a law. As Justice Scalia said, “It’s a concern that this is not the kind of a question you can leave to Congress. . . they are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?” 

What’s in a name? Well, just about everything. A bill’s name can help with passage, raise public support, and influence judicial interpretation. Perhaps this highlights the need for Congressional bill naming regulation. Until then, the name game continues.

For additional discussions about bill naming and the consequences, see Brian Christopher Jone’s essay in Yale Law & Policy Review, Mary Whisner's article, and Adam Liptak's New York Times column. 

http://lawprofessors.typepad.com/legislation_law/2014/05/whats-in-a-name.html

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Comments

Thanks for this post, Professor Benfer.

I'm pleased to say that I've got a paper on this topic, for which I struggled for years to find a home other than SSRN (at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1113026), but which will finally be coming out this fall in the Georgetown Law Journal.

You'll like it, I hope--I think the whole phenomenon is profoundly stupid and proof of the worst in our elected officials, and I say so!

Posted by: Chris Sagers | May 9, 2014 10:37:06 AM

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