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Five Fast Thoughts About Drafting Legislation

By Jerry G. Jones  |  February 5, 2008

1. The Basics

Like the drafting of pleadings and contracts, security instruments, wills, trusts and other documents, the drafting of legislation is a specialized form of legal writing—but with additional and more difficult considerations.

  • Knowledge of substantive content alone is a necessary but not sufficient basis for good legislative draftsmanship.
  • Legislation is an authoritative policy document ultimately resulting in a legal document. It is subject not only to political and policy considerations but also to an enactment process having its own constitutional, procedural, jurisprudential and style requirements. Regardless of merit or substance, failure to satisfy mandatory procedural constitutional requirements can alone void legislation.
  • Multiple audiences (public, legislative, agencies and courts) often view legislation from differing perspectives with differing interpretation considerations.

Others Said It Better:

  • "One reason why it is hard to teach people how to draft is that like all writing it looks easy. There is one thing upon which almost everyone prides himself, and that is his writing. This is especially true of lawyers. Not only do they underestimate the difficulties of writing but they tend to think of themselves as individually accomplished. It is hard to sell a man a new suit when he considers himself already well-accoutered.

“I think that it is accurate to say that legislative drafting is the most difficult form of legal drafting. The basic problems are the same, but legislative problems are technically more complicated and socially more important.

“Although the draftsman is not himself a policy maker, he can help educate the client so that the client can make informed decisions. In doing this the draftsman must avoid two extremes. On the one hand, he must avoid being a mere legal stenographer or short-order cook. On the other, he must not be an officious meddler in policy." —Reed Dickerson, "How to Write A Law," 31 Notre Dame Lawyer 14 (1955), quoted in "Legislation: Cases and Materials, Nutting and Dickerson" (1978)

  • "Reed Dickerson, his book 'The Fundamentals of Legal Drafting' (formerly entitled 'The Fundamentals of Legislative Drafting'), defines legal drafting as 'the crystallization and expression in definitive form of a legal right, privilege, function, duty or status.' This is also an excellent definition of legislative drafting as it embodies the twin aspects of such drafting: the conceptual aspect, in which the drafter ascertains and perfects the concepts to be employed in his draft, and the literary aspect, in which the drafter selects the best means of expressing those concepts. Drafting is, as Reed Dickerson says, first thinking and second composing." —"Legislative Drafting in Hong Kong," Law Drafting Division, Department of Justice (2nd Ed.)
  • "Legal drafting is legal thinking made visible." —Robert Dick, "Legal Drafting" (Toronto, Carswell Publishers 1972)
  • "The legal drafter must write for unidentified foe as well as known friend. The drafter must write so that not only a person reading in good faith understands but a person reading in bad faith cannot misunderstand." —Introduction, "Oregon Bill Drafting Manual," citing numerous sources for the introduction, including Dickerson's excellent books "Legislative Drafting" (1954) and "The Fundamentals of Legal Drafting" (1965)

2. Only Text Is Law

  • La. C.C. Art. 2. Legislation is a solemn expression of legislative will.
  • La. C.C. Art. 9. Clear and unambiguous law: When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
  • La. R.S. 1,§4. Unambiguous wording not to be disregarded: When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit."

Wishful thinking aside, the simple and often apparently inconvenient truth is that "concepts," speeches, media reports, quotes from interested parties, statements regarding the "purpose" or "what I'm trying to do here" committee testimony, arguments pro and con, digests and similar explanations, and committee and floor debates, are not law.

  • The only truly accurate answer to the question of "What does the bill do?" is "The bill does what it says it does" (a/k/a the "text").
  • If not clear from the text, assumptions during the political process of how legislation will be "interpreted" and implemented (a/k/a "How will this work in real life?") can be problematic. The Legislature may get to write the text it wants (and it will be assumed the wording of text was chosen deliberately and with knowledge of its meaning and legal effect), but the Legislature does not get to interpret what it writes. Interpretation is the sole province of the judiciary.

Others Said It Better:

  • "I thought this was a good bill until I read it." —Anonymous legislator
  • "Words are the only lasting product of the Legislature. Not all words uttered during the legislative process have the same dignity. The State Constitution does not convene the Legislature in regular session for 60 days every year to conduct studies, publish reports or analyses, or write correspondence, but rather to write, by a formal process, the words that govern people’s lives. These words, embodied in law, are the commands of the sovereign. They control what we may do with our property and can constrain our liberty. All people are expected to abide by these words, and some must even take an oath to uphold them.

“We are governed by this law and not by men. The king can expect us to obey his words, but not to read his mind. If we are to remain governed by law, we must find its meaning in its chosen words—not in the minds of its framers or in the creative minds of its readers. To this end, those words must be few and well chosen. Legal writing must not forsake good English. Obedience to proper grammar and usage helps secure our rule of law.

“Drafting laws is exacting and tedious work for a lawyer. It demands much drudgery—reading and writing, rereading and rewriting. In the words of Daniel Webster:

“Accuracy and diligence are much more necessary to a lawyer than great comprehension of mind, or brilliance of talent. His business is to refine, define, split hairs, look into authorities and compare cases. A man can never gallop over the fields of law on Pegasus, nor fly across them on the wing of oratory. If he would stand on terra firma, he must descend. If he would be a great lawyer, he must first consent to become a great drudge.” —Robert L. Kennedy, III, director, 1984-2002, Legal Research and Drafting Services
Preface, Florida Senate Manual for Drafting Legislation

3. Speed Is the Enemy of Accuracy

  • There is no magic button on the computer (or the drafter) to solve last-minute drafting issues.
  • Law is legislation. Legislation is words. Drafting legislation is writing. Good writing is rewriting. (Who wants their first draft of anything to have binding legal force and effect?)
  • Goals of clarity and specificity:
  • The text of the legislation does what was intended without needing special knowledge or assumptions.
  • Further, such text does only what was intended.
  • Whether or not the reader agrees with its effects, the text of the legislation is read the same way by most who read it.
  • The faster the drafting, the higher the probability the text will contain mistakes and ambiguous language and create unintended consequences. There are no exceptions to this rule.
  • Remember that all text is treated the same by the courts, whether it was drafted over three months, three weeks, three days, or three minutes. (This can be a disconcerting consideration.)

Others Said It Better:

"There is no great writing, only great rewriting." —Justice Louis Brandeis

"The difference between the almost right word & the right word is really a large matter—it's the difference between the lightning bug and the lightning." —Mark Twain

"Thunder is good, thunder is impressive; but it is lightning that does the work." —Mark Twain

"Be careful that you write accurately rather than much." —Erasmus

4. If It Was That Important, Why Didn't You Tell Me Earlier?

  • Especially applicable to committee and floor amendments.
  • See 1-3 above.
  • See E below.

Others Said it Better:

  • "No passion in the world is equal to the passion to alter someone else's draft." —H.G. Wells

5. The Earlier a Drafting Issue Can Be Resolved, the Better. 

  • As in other endeavors: (1) the best time to solve a problem is before it happens, and (2) preventive maintenance is usually faster, easier, and cheaper than aftermath cleanup/repair.
  • The best time to solve a drafting problem is before it leaves the drafter. An additional consideration (or problem) in solving legislative drafting questions is the law of escalating involvement of others:
    • A drafting problem caught and solved by the drafter takes one person. A drafting problem caught and solved by a drafter and reviewer takes two people. A drafting problem caught and solved by administrative proofing takes several people. A drafting problem caught and solved by a legislative committee takes approval of the committee and acceptance by the full body of the committee's recommendation. A drafting problem caught and solved by floor amendment takes at least a majority vote of the full body. A drafting problem caught and solved by the other house takes passage of the bill in the other house and concurrence in the house of origin to the changes, or appointment of a conference committee and adoption of the conference committee report by both houses.  A drafting problem caught and solved by the governor requires veto of the entire bill, unless the bill is subject to line item veto. A drafting problem solved by next year's legislature takes a bill successfully completing the entire process, including all of the above. A drafting problem not otherwise solved by the legislature takes the entire judicial process to resolve.
    • And remember, if the judicial resolution is not what was wanted, the above process starts all over again with new legislation.

Jerry G. Jones is chief legislative counsel for the Louisiana Senate.

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