Introduction to Legislative Drafting with Professor David Marcello, Part One of Four
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Introduction to Legislative Drafting with Professor David Marcello, Part One of Four


well legislative drafting is not
instinctively where we go when we start talking about for weapons
in the lawyers Arsenal particularly in pursuit of
social justice objectives as a nation I think we’ve been drawn to
landmark cases like brown versus board of education and Gideon versus
wainwright and for those of us who are in law
school during that Warren court era you’re tempted to think that it was
gonna go on endlessly thereafter and a course it
hasn’t so there’s a tendency on our part to think that Law reform impact litigation is the
way to go when you’re seeking social change I think particularly in the last several
decades real battle has been in legislative
forums and particularly in state legislative forms increasingly with
deadlock in Congress were drawn toward more and more fighting
battles and state legislatures and even to some extent municipalities so
there’s this tendency above all of us lawyer non-lawyer like
to think in terms of law reform litigation before we start thinking
about legislation we’re also as lawyers encouraged to think mostly about
litigation because what do we have law students read in law
school relentlessly appellate judicial opinions you could
graduate law school in justifiably think that most to the meaningful on our
society is written by appellate judges because
that’s mostly what you’ve read in fact of course a vast body of law as
written directly by federal and state legislative bodies and I would suggest an even faster body
have important law as written by administrative agencies informal rules
and regulations so why do we need to think about
legislation and for that matter regulations because
they’re important because there are major part what
impacts our clients needs and because we can make change through those procedures in different
ways and using different strategies that might come into play in litigation context well every drafting project starts out as a problem that adversely impact people and when you’re trying to help a legislative drafter get off the dime
and start drafting wanna most useful things you can do is to give practical information about the
dimensions of the problem I mean newspaper articles and magazine articles and television broadcasts are all packed with information about
the nature of the problem so giving some real-world cents or what at
issue is a good start you can certainly go
farther and those who have had some legal training can get into trying to
identify the statutes that might be the source of the problem or perhaps an unfavorable Attorney
General’s opinion or agency regulation and all of those
things if they can be identified in shipped on over to a drafter would be
all to the good and then of course it helps to link
drafters with client to faced the real world problem and in addition it helps to link
drafters with say person that we call in our practice a resource person you know the client
knows why it’s a problem but the client might not
necessarily have a sense of what’s the best solution a resource person might not be
immediately impacted by the problem but might have a depth of knowledge in a
sense of what could be done to solve it that is very useful so we try to encourage other students who
are working in our classes to have both a client at hand
and a resource person and it learned from from both of those perspectives deciding how or narrow to make a bill is one of those
judgment call holes that wall ever be guided I think by bright
line wisdom I’m there are so many factors in play it’s a dynamic system the their are general laws that say perhaps very little about the
substance that is being addressed and that kick it over to administrative
agencies to fill in the details that could be a very wise strategy if
you were dealing with the terribly challenging political problem
that would have difficulty passing the legislature if it were dealt with in detail but that might get a much warmer reception
in a favorable agency environment and so on occasion
we’ve counseled students to stay at a level of generality with the statute and move into drafting an
accompanying legislative instrument right sorry regulatory instrument to go with the legislation so that’s one
approach on the scope that will be applied to law by
the courts is another dimension we’re all familiar
with the concept criminal laws and punitive laws should
be narrowly construed and there are a number of other laws lot of
them having to do with sunshine issues like open meetings in public records that our statutes call to be broadly
liberally interpreted I’m that’s a good piece of guidance I
think for legislatures to give to the courts and it’s important
particularly when you’re dealing with issues that involve the right to the
public like they open meetings in the in the public records act

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