Legislative Drafting Manuals: “America’s Test Kitchen” of Drafting Advice Rocky Mountain Legal Writing Conference University of Colorado Law School Boulder, Colorado March 22, 2013 Why look at legislative drafting manuals (LDMs)? • Student interest in drafting instruction is up. o Opportunities in upper-level writing courses, live-client clinics, and discrete exercises in other courses. • LDMs are great style reference materials. o Free, online, often with good explanations. • LDMs are rich sources of drafting examples. o Reinforce examples in assigned text. But I teach contract drafting, not legislative drafting . . . . • Definitions • Words of authority • Plain language • Research • Organization • Forms—benefits and limits U.S. Legislative Drafting Manuals • 33 available free, online • Content varies. • One-stop page to find them all: o National Council of State Legislatures, “Bill drafting” page o http://www.ncsl.org/legislativestaff/lsss/bill-drafting-manuals.aspx Legislative Drafting Manuals Ways to use LDMs (from less effort to more effort) 1. 2. 3. 4. List in syllabus as style reference materials. Refer to in feedback on student papers. Include excerpts in Course Supplement. Mine for examples during class presentation. 5. Use for in-class exercises, about revision, for example. Using LDM examples in class • Serial comma • Shall / must (also shall not / may not) My top five LDMs For drafting assignments (contracts and statutes), I find even the best legal writing style manuals to be very limited. Drafting is just that precise. Consult the . . . text first. If you want additional guidance (such as, about how to use “shall” or how to tabulate a list), legislative drafting manuals for the following states are available online and offer helpful examples and explanations: • • • • • Colorado: Office of Legislative Legal Services, Colorado Legislative Drafting Manual (2009, with 2011 updates available online only), available at http://www.state.co.us/gov_dir/leg_dir/olls/legislative_drafting_manual.htm Idaho: Idaho Legislative Services Office, Legislation Drafting Manual: Concise Version (2011), available at http://legislature.idaho.gov/about/draftingmanual.pdf Maine: Office of the Revisor of Statutes, Maine Legislative Drafting Manual (2009), available at http://www.maine.gov/legis/ros/manual/Draftman2009.pdf Minnesota: Office of the Revisor of Statutes, Minnesota Revisor’s Manual (2002), available at https://www.revisor.mn.gov/revisor/pubs/bill_drafting_manual/revisor_manual.pdf Montana: Montana Legislative Services Division, Bill Drafting Manual (2010), available at http://leg.mt.gov/content/Publications/2010-bill-drafting-manual.pdf To be clear, these legislative drafting manuals are only supplemental reference materials. They are optional; you are not required to download or print any of them (they are large documents). The only required texts for the course are . . . . Ideas for a Course Supplement (handout) • Research checklist (Massachusetts) (but modify) • Style checklist (Arizona, Idaho) • Sample bills (Arkansas, South Dakota) • Introduction to interpretation (Florida (Senate), Minnesota, Oregon, West Virginia) • Special topic: words of authority (Maine) • Special topic: “Indian issues” (Montana) Can punctuation ever be fun? Among those interviewed were his two ex-wives, Kris Kristofferson and Robert Duvall. Punctuation—the serial comma (a.k.a. Oxford comma) • The woods are lovely, dark, and deep. • The woods are lovely, dark and deep. o Same meaning as above? or o “lovely” means “dark and deep” Punctuation—which one has the (potentially) fatal ambiguity? • To my parents, Ayn Rand and God • To my parents, Ayn Rand, and God What students learn before law school • red, white and blue • The patient can be given penicillin, ampicillin, or erythromycin. Drafting is different. • The magazine company listed jobs in accounting, subscriptions and advertising and public relations. • My estate is to be divided equally among my nephew, my son, my daughter, and my son-in-law. Minnesota manual’s explanation The revisor's office uses a style that calls for a comma before the conjunction in a series. . . . A drafter should think carefully, though, before adding a comma to a sentence written by someone else. In rare cases, such a sentence may be ambiguous. Here is an example: o The commissioner shall assign to the case two managers, a program specialist and a family visitor. How many people are being assigned to the case? Without a comma, the sentence can be read to mean two or four people. Make certain that the original drafter meant four people before adding the comma. (If the drafter meant two people, rewrite the sentence.) Minority position: no serial commas allowed • Arizona, Maine, Massachusetts, New Mexico, Oregon, South Dakota, and West Virginia • If the LDM bans serial commas, what effect on a court’s interpretation? So far, none. o Enterprise means any corporation, partnership, association, labor union or other legal entity, or any group of persons associated in fact although not a legal entity, that is involved with providing care to a vulnerable adult. Bigger question: should courts consider LDMs? • Carr v. United States, 130 S. Ct. 2229, 2245 (2010) (Alito, J. dissenting) • Issue was verb tense in sex offender registration statute. • Dissent saw LDMs as showing the convention among professional legislative drafters. • Quoted LDMs from Colorado, Hawaii, Kentucky, Maine, Massachusetts, New Mexico, Texas, West Virginia, and Ohio. Serial comma wrap-up • New rules: before law school, students may have learned something different. • Drafting fundamental: avoid ambiguity. • Broader question: should courts consider LDMs when interpreting statutes? Words of Authority • Shall • Must • Avoid ambiguity • Golden Rule of Drafting • Accountability: who has a duty to do what? LDMs on words of authority • Consensus on the basic principles o “Shall” creates duty; “shall” does not show futurity. o Avoid false imperatives. o Be consistent. • Variety of pedagogical approaches • Some examples that provide teachable moments Grammar focus “Shall is used to qualify an active verb. Must is used to qualify an inactive verb or an inactive verb in the passive voice.” –North Dakota bill drafting manual Flowchart approach What follows is a short rule that drafters can apply to help them use shall and must consistently with our recommendations. Either shall or must may be used if all of the following conditions are satisfied: (1) The statement imposes a duty or prohibition. (2) The subject of the sentence is a human being or legal entity. (3) The duty or prohibition is imposed in the active voice. If all conditions are not met, use must to impose a duty, prohibition, obligation, requirement, status, or condition. List approach To create a right, say “is entitled to.” To create discretionary authority, say “may.” To create a duty, say “shall.” To create a condition precedent, say “must.” To negate a right, say “is not entitled to.” To negate discretionary authority, say “may not.” To negate a duty or a mere condition precedent, say “is not required to.” • To create a duty not to act, say “shall not.” • • • • • • • Paired examples approach Do not use Use Instead It shall be unlawful If a member shall resign The term “person” shall mean It is unlawful If a member resigns “Person” means The equipment shall remain the property of the lessor No person shall be entitled The equipment remains the property of the lessor No person is entitled This section shall not be construed Who shall serve This section does not Who serves Straightforward explanation “Shall not” is used throughout the Idaho Code and it may be difficult to break that tradition. However, “shall not” means that a person does not have a duty to act. To say “no person shall” means that there is no one who has a duty to engage in the action. The proper way to prohibit an act is to say “may not” in connection with the action prohibited: “The board may not revoke a license without a hearing.” “May not” properly denies the board the authority to act in that situation. Neither shall nor must A drafter might also choose a drafting approach that eliminates the decision of whether to use “shall” or “must.” Under this approach, the provision simply states a legal fact. • The appointee qualifies for office by taking the official oath and filing the required bond. (The method by which the appointee qualiﬁes for ofﬁce is stated as a factual matter.) Teachable moments • Preferred: o The judge must receive the application by the deadline. • Avoid: o The judge shall receive the application by the deadline. LDMs for in-class exercises • Narrow topic o Definitions (see handout) o Severability / non-severability clauses • Copy or modify examples in LDMs • Students critique Questions • Have you used legislative drafting manuals? • How many samples is too many? • How are students learning about drafting in your school’s curriculum?