For the last 34 years, one man in Michigan was responsible for finding and fixing the innumerable defects contained in the state’s ever-growing volume of law. That man was Richard McLellan, one of the Mackinac Center’s founding members. McLellan was chair of the Michigan Law Revision Commission, a role he assumed in 1986 and retired from last year.
It takes something special to devout oneself to scouring state statutes for contradictions, anachronisms and other problems. But McLellan fit the mold perfectly. Early in his career as a Lansing lawyer, working for Gov. William Milliken and then Gov. John Engler, he learned the importance of having a “fundamental understanding of the structure of the law,” as he puts it.
One of the first research projects McLellan undertook as a young attorney clearly demonstrated this point. He thoroughly reviewed the Michigan Constitution — every clause and every word — and identified and described, in plain English, the scope of executive power available to governors. This research repeatedly served multiple governors, and McLellan notes that this proved to him the “power of a white paper.” It’s no wonder he was keen to start a public policy research organization like the Mackinac Center shortly after becoming chair of the MLRC.
The value of the law review commission may not be obvious at first blush, and McLellan is the first to recognize the limits on its power to improve the law. When asked to name the most significant achievements of the MLRC, McLellan abruptly responds, “None!” — an odd admission, but unsurprising for anyone who knows him.
The commission only makes recommendations to the Legislature — it cannot initiate reforms. But the benefits of such organizations can be found across the globe. Political systems that are historically influenced by the British legal system, such as in Canada, Australia and Hong Kong, have relied on them for decades.
McLellan also emphasizes that the MLRC fills a gap in the state. Regularly reviewing and improving existing statute is not high on anyone’s priority list: no special interest group, nor the Legislature, nor the governor’s office. If the commission would not do this work, it would simply not get done. It does, though, and it serves the public interest. Conflicts in the law will need to be sorted out one way or another, and settling them legislatively is more appropriate and efficient then leaving it for the courts to decide.
No one knows better than McLellan that there remain numerous deficiencies in Michigan law, and that’s why the public needs organizations like the MLRC and the Mackinac Center. The state’s response to the COVID-19 pandemic demonstrated the problems with poorly defined statues: They can lead to significant legal controversy in times of crisis — even abuse of power. The never-ending challenge of fostering a coherent and consistent body of law, McLellan says, is “why the Mackinac Center will be in business forever.”
Michigan is fortunate that its law review commission was headed for three and a half decades by one of its very best legal minds. While the impact of the MLRC might appear small, it serves an important purpose, required by the reality of lawmaking. This work will never end, and neither will McLellan’s influence on Michigan law.