Nothing is more frustrating for a statutory drafter than reading a case in which the court misread a statute, especially one the drafter has written. In our tri-part system of government the Legislature, not an administrator, who is part of the executive branch, or a judge, legislates. Moreover, a drafter is employed by the Legislature, so he or she ought to attend tenaciously to its prerogatives. Fortunately, there are ways to do that. Among them is paying attention to details.
Statutes can be placed on a spectrum from specific to general. A drafter's goal should be to move toward the specific end of that spectrum. The result is to give less room and occasion to an administrator or judge to decide the meaning of a statute. Ideally, a judge should be forced to read a statute literally unless there is an obvious drafting error or a situation that could not be foreseen when the statute was drafted.
To achieve those goals, statutes must be drafted in sufficient detail and with sufficient accuracy. In turn, a drafter needs to understand statutes' functions and the tactics that ought to be used in drafting them. In addition, she or he must know the purposes of the statutes that she or he is drafting. To aid in those efforts I need to repeat certain points that I have made before either in presentations or in publications.
The main function of the statutes is to direct behavior. There are three behavioral directives: forbidding (which is usually accomplished with "shall not" or "may not"), authorizing (which is usually accomplished with "may") and requiring (which is usually accomplished with "shall"). There are also two other functions: stating conditions under which the behavioral directives apply or do not apply and stating consequences of following or failing to follow a directive. Most statutes perform one or more of those functions. Of the five functions, the three most important in supplying sufficient detail and thus in upholding the Legislature's control of statutory construction is the conditions. The second most important in those respects is the consequences.
One anomaly to the need to limit the participation of members of the executive and judicial branches of government in statutory construction and in the operation of the five functions is criminal law, which consists of conditions linked to consequences, the linkage implicitly forbidding. An example is "whoever, intentionally and without a defense, kills another person is guilty of first degree murder." Such a statute is intentionally lacking in details, which are supplied by a judge's instructions to a jury and the jury's deliberations. Under the circumstances, that arrangement is perfectly acceptable.
The working of conditions in effecting the Legislature's desires is illustrated by an example involving two definitions. A definition can be a condition. A simple example is two statements: "A doctor may perform surgery." and "Doctor' means a person who is licensed to practice medicine in this state." Those statements can be rewritten as a condition linked to an authorization: "A person who is licensed to practice medicine in this state may perform surgery." The meaning of both "doctor" and "surgery" need amplification. That statute authorizing an act is unacceptably lacking in detail and would lead to interpretation by a judge or administrator, This interpretation would perhaps be unwanted by the Legislature. To avoid that definition acting as a statement of conditions related to an authorization, and to add desirable amplifications those statutes can be rewritten thus:
Section 10. The Practice of Surgery
10.01 Definitions. In this section:
(1) "Doctor" means a person who is licensed to practice medicine in this state.
(2) "Surgery" means the penetration of a patient's body by an instrument in order to remove part of that body or to add something to it.
(1) A doctor who has successfully completed a residency as a surgeon may perform surgery.
(2) A resident acting under the direct supervision of a doctor under subsection (1) who is in the operating theater at the time may perform surgery.
There are several kinds of definition. Among them are those fitting into a statutory system, those achieving economy of expression (defining "doctor" in the example above negates the necessity to write the definition wherever "doctor" would otherwise appear), those setting standards, those specifying another statute's applicability and those closing loopholes. The last of those types is the one that is applicable to the purposes discussed in this article. In writing a definition, a drafter should think that she or he is closing a loophole by means of which an administrator or judge might foil the Legislature.
There are several causes of mistakes in drafting that make misreading likely. They must be negated because they are profoundly undemocratic. That is because they produce skeletal statutes that must be fleshed out by administrators or judges. All administrators, unlike legislators, are unelected. Some judges are appointed; others are elected but none is elected because of his or her fleshing out of statutes. Skeletal statutes also assure that one cannot learn what the law is by reading the statutes. The law is the skeletal statutes plus the fleshing out of them by administrators and judges.
The function of details can be seen by comparing two versions of a part of a draft. The original draft comes first; a revision comes second:
After notification of NMFS, this final rule requires all CA/OR DGN vessel operators to have attended one Skipper Education Workshop after all workshops have been convened by NMFS in September 1997. CA/OR DGN vessel operators are required to attend Skipper Education Workshops at annual intervals thereafter, unless that requirement is waived by NMFS. NMFS will provide sufficient advance notice to vessel operators by mail prior to convening workshops.
After notification from NMFS, vessel operators must attend a skipper education workshop before commencing fishing each fishing season.
The revision eliminates the statement that the rule is final. It applies to all the vessel operators in the world rather than to the CA/OR DGN vessels operators. It applies immediately rather than applying after all workshops have been convened. It does not allow for waivers after the first training session. It specifies that the requirement applies to each fishing season, not annually. It fails to announce that notice will be given by mail.
A drafter can make it more likely that a draft will have sufficient detail by asking the requester about the details that he or she wants and by imagining the ways in which the statute would operate in the real world.