Posts tagged ‘Statutory Construction’

Thinking Through the Policy Before Drafting Legislation

Legislative drafts can fail for two reasons. Some fail because of poor communication while others fail due to a lack of imagination. Whenever there is a lack of communication, in most cases the draft is simply not clear. Common sense editing can usually resolve this problem. Whenever there is a lack of imagination, the draft is simply not adequate. These types of problems are usually not as visible to the naked eye and the appropriate resolution to this problem is thinking through the policy.

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The writing portion of drafting legislation is certainly important, but the more time-consuming aspect of the task is thinking through the policy. When policy is not thought out properly, the result is additional work for judges and the distinct possibility that the policy will not work effectively. A policy that is not well thought out may not respond to the problem or it may result in unintended side effects. Controversy and confusion can occur as a result. Thinking through the policy before putting pen to paper or finger to keyboard is critical .

There are seven elements associated with thinking through policy. They are:

  • Engaging the client
  • Figuring out the problem and the objective
  • Asking for details
  • Researching the facts and law
  • Analyzing alternatives
  • Creating a coherent solution
  • Conducting a reality check

Information can always be wrong, facts can shift and laws can overlap one another. When drafting legislation, the client has likely approached you with a prejudged sense regarding what must be accomplished. This should not be taken at face value. While you should respect it, it is imperative that you do not accept it. Clients often do not properly think through policy. They may even be operating on the recommendation of a third-party. At this point, what the client needs most from you is independent, critical thinking.

Take the time to be skeptical and question all assumptions. Imagine possible resulting scenarios. Utilize good judgment. While your client may not always have the time or the patience, you want to provide answers that your client needs to hear, not necessarily what they want to hear.

To learn more about drafting effective legislation, consider our Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Section 4.0 Thinking through the Policy.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

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Understanding Legislative History

Legislative history involves the proceedings in Congress that relate to a law before it was actually enacted. This can include official reports prepared by congressional committees as well as official statements that are issued by members of Congress.

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Legislative history may also include testimony given at legislative hearings, and different versions of the text of a bill as it was shaped through the legislative process.

While legislative history can provide a wealth of information, it can also be problematic when it is used as evidence of legislative intent. One of the reasons for this is that a committee report only provides the view of a few legislators that belong to one chamber. Furthermore, an individual statement only offers the view of that single member.

Due to the number of problems that can arise from legislative history, a court typically only uses legislative history as a guide to intent when it must make a decision between multiple possible plausible meanings.

Courts sometimes look to legislative history even if there is only one possible meaning. This can sometimes occur for the purpose of confirming the plain meaning. The Supreme Court has been consistent in saying that legislative history can be used as evidence for legislative intent, provided that it is not used for the purpose of overturning a plain meaning.

What is the meaning of “plain meaning”? The plain meaning of a statute refers to the “ordinary or natural Legislative Drafters Deskbook by Tobias Dorseymeaning.” Natural meaning refers to a meaning that is not literal but is instead the common sense meaning. The ordinary meaning of a statute refers to the meaning in terms of an idiomatic sense or the same way that an ordinary person might commonly speak.

When the Court uses legislative history as evidence of legislative intent, it is usually for the purpose of reinforcing or confirming plain meaning. The Court typically understands that the views that are expressed by certain members of Congress are not the views of Congress as a whole. With that said, the views of some members of Congress can help to shape the views of others and even influence votes. As a result, legislative history can be important not because of what was previously written or said by lawmakers, but because it was read or heard by other lawmakers.

To learn more about legislative history, consider TheCapitol.Net’s 1-day course, How to Research and Compile Legislative Histories; Searching for Legislative Intent, and their publication Statutory Construction and Interpretation.

Reference: Section 3.72 Legislative History: Why It is Problematic, in Legislative Drafter’s Deskbook, by Tobias Dorsey.


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