§ 3.01    Courts: The Most Important Audience

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Some drafting projects never see the light of day, but most are intended to be read. Ultimately, the effect of a draft depends not on what you think the draft means or on what your client thinks the draft means, but on what the audience thinks the draft means.

To draft effectively, then, you need to get inside the mind of the audience and understand how the audience thinks. But who is the audience?

In drafting federal law, the most important audience (apart from the client) is the federal courts—and, in particular, the Supreme Court of the United States. Fortunately, it is not difficult to get inside the mind of the Court and understand how it thinks. The Court makes this process public in its published opinions; collectively, the process is known as statutory interpretation. (It is also known as statutory construction; the differences between the two terms are not great. For consistency’s sake, this book uses "statutory interpretation" throughout.)

There are other audiences, of course. The draft will be read and interpreted by legislators, lobbyists, public officials, private individuals, industry leaders, journalists, and scholars, to name a few. In some ways these audiences are very different, but in two ways they are all alike: Each wants to know the effect of the draft, and each recognizes that the effect is ultimately determined by the courts, through judicial methods of statutory interpretation. The courts always have the last word, and the Supreme Court has the very last word: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 539 (1953) (Jackson, J., concurring). When you control how a court reads a text, you thereby control how others read that text as well.

Some who write about drafting have argued that a drafter does not need to be much concerned with statutory interpretation. Reed Dickerson, for example, argued as follows: "For the draftsman, many rules of interpretation are simply irrelevant. . . . They are irrelevant because the draftsman who tries to write a healthy instrument does not and should not pay attention to the principles that the court will apply if he fails." Reed Dickerson, The Fundamentals of Legal Drafting 54 (1965).

This is, to put it delicately, not the best advice. Suppose you were an appellate lawyer trying to convince a court that a statute means X. You probably would argue that the statute is clear and the plain meaning is X—but you must also be ready to argue that the statute, even if unclear, should be given the meaning X. In short, you need a fallback position. The suggestion that you should not have a fallback position in drafting is bizarre. Your job is to do all you can to give effect to the policy, not to rest on language that you think is clear.

Statutory interpretation applies at all times to all instruments, not just to those that are not, as Dickerson put it, "healthy." Indeed, it is used to determine whether an instrument is healthy in the first place. It is used to decide what a healthy instrument means, and what an unhealthy instrument means. It is true that many principles of statutory interpretation are simply general principles about how best to read English prose. But many are not. Some are obvious, some are subtle, some are counterintuitive, some are traps for the unwary.

You can try to draft without paying attention to statutory interpretation. But rules of interpretation are like rules of the road: Drive on the right; stop on red; signal before turning; pedestrians have the right of way. If you don’t know all the rules, sooner or later you will park in front of a fire hydrant or go the wrong way down a one-way street.