§ 4.00    Thinking Through the Policy: Introduction

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Drafts can be failures for two reasons: Some are failures of communication, while others are failures of imagination.

Some who write about drafting focus only on failures of the first type. They reason that thinking and writing go hand in hand, so writing well also guides you into thinking well. That’s fine as far as it goes, but it doesn’t go far enough. When there is a failure to communicate, the draft is not clear. The problem is on the page and evident to the naked eye. The failure can usually be noticed and cured by sensible editing.

When there is a failure to imagine, however, the draft is not adequate. The problem is not on the page and is invisible to the naked eye. The words look fine, but the thinking behind them is less than thorough. A failure to imagine cannot be cured by editing after the fact; it can be cured only by thinking through the policy.

The approach here is to focus on both types of failures. A draft should be comprehensive as well as clear. Failures of imagination are discussed in this chapter; failures of communication are discussed in Chapter Six. Not to minimize the task of writing, but the task of thinking is far and away more important—and more time-consuming. One drafter decided to keep careful track of the hours spent on a particular drafting project. He logged a total of eighty hours: Only four were spent writing; fifty-eight were spent on research and eighteen on discussions. "It is," he observed, "a long and rocky road from a layman’s bright idea to a matured and workable statutory provision." Harry W. Jones, "Some Reflections on a Draftsman’s Time Sheet," 35 American Bar Association Journal 941 (1949).

If you have been diligent in thinking through the policy, the writing is not too demanding. The actual draft is like the tip of an iceberg--it seems important because it is the part everyone sees; in fact, the true weight and force lie beneath the surface.