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Here's A Funny Idea: Medicare Laws That Are Easy To Read Judges Lash Out At 'Tortuous Text,' Prepare For New Revisions

Publication Date: 
March 09, 2012
The Wall Street Journal
Joe Palazzolo

Professor Michael McConnell spoke with Joe Palazzolo of the Wall Street Journal on the rise of confusing and long bills written by members of Congress.

James Madison warned in the Federalist Papers about laws "so voluminous that they cannot be read, or so incoherent that they cannot be understood."

If only he had lived to see the Medicare and Medicaid programs.

"Picture a law written by James Joyce and edited by e.e. cummings," wrote Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, in a January ruling in a Medicare case. Last September, Judge Gilbert S. Merritt Jr. of the Sixth Circuit lamented Medicare's "tortuous text."


Michael McConnell, a former federal appellate judge, says he mainly takes exceptions to the exceptions. "What I find difficult are all the cross-references and exceptions," says Mr. McConnell, now a professor at Stanford Law School. "I think it's a sign that Congress is trying to micromanage things."

On the other end of the spectrum, he says, are laws like the Sherman Antitrust Act, which amounted to two handwritten pages when Congress passed it in 1890, laying the foundation for U.S. antitrust law. "It deals with complex subject matter, but in a single sentence the law authorized the courts to go off" and create a body of interpretations, says Mr. McConnell.