§ 4.10    The Perils of Ineffective Thinking

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Though courts tend to call every problem with a statute a "drafting error," the problem is usually not with the writing but with the thinking: "The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all: when the question which is raised on the statute never occurred to it." John Chipman Gray, The Nature and Sources of the Law 165 (1909).

As one judge put it:

"Now what do the courts concern themselves with most? They concern themselves most with problems that the legislature has failed to address itself to. And when the legislature has addressed itself to the problem but there is, say, awkward phrasing, or there are 2 provisions looking in opposite directions, or there are different indicators from the text and the legislative history, the question is relatively simple. The hard questions are those to which the legislature has not addressed itself."

Harold Leventhal, "How the Problem Looks to the Courts," in Reed Dickerson (ed.), Professionalizing Legislative Drafting: The Federal Experience 30 (1973).

When the policy is not thought through properly, the result is not only more work for judges; a policy that has not been thought through effectively is simply not going to work effectively. It may respond to the problem poorly; it may not respond to the problem at all. It may have undesired side effects; it may cause confusion and controversy. It may lead to what the courts call an "absurd result."