Ira Shiflett


Thirty years ago, Congress recognized that the costs of notarization generally outweighed the benefits. In 1976, Congress enacted 28 U.S.C. § 1746, intending to limit the circumstances in which a notary would be required. Section 1746 provides that whenever a document is required to be supported by a notarized statement other than a deposition, an oath of office, or an oath required to be taken before an official other than a notary, a declaration under penalty of perjury is a sufficient substitute. Congress recognized that it could be inconvenient to find a notary, especially on the weekends or for people who lived or traveled internationally. This section "has the advantage of avoiding the inconvenience, time and expense of the participation of a notary public." Nevertheless, § 1746 has had much less impact than might have been expected. By regulation, statute, and court rule, hundreds of federal forms and documents still apparently require notarization. Thus, the law seems to continue to require the use of a notary public. ... This Article proposes that § 1746 be more systematically applied in federal law to achieve the savings Congress intended. In addition, the federal perjury statute should be amended to make clear that it applies to statements under § 1746.

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