Legislative Drafter's Deskbook
A Practical Guide

By Tobias A. Dorsey
Contributing Author: Clint Brass

The Legislative Drafter's Deskbook offers practical advice and insight for those engaged in legislative drafting, those more interested in policy than drafting itself, or those interested in reading and interpreting the law. The Legislative Drafter's Deskbook helps anyone understand why laws are drafted the way they are.

The Training Edition of Legislative Drafter's Deskbook is included as part of the program materials in our public and custom legislative drafting training courses. TheCapitol.Net has delivered custom, on-site training for numerous clients. For more information about bringing training to your organization, contact us for details: 202-678-1600, ext. 112.

 

2006, 640 pages Hardbound, $145 ISBN 10: 158733-015-6 ISBN 13: 978-1-58733-015-5 7 x 10 x 1.6 inches Weight: 3.2 pounds Buy hardbound from TheCapitol.Net Buy hardbound from Bookshop Buy hardbound from Amazon Buy hardbound from Barnes & Noble Softcover, $115 ISBN 10: 158733-209-4 ISBN 13: 978-1-58733-209-8 7 x 10 x 1.5 inches Weight: 2.5 pounds Buy softcover from TheCapitol.Net Buy softcover from Bookshop Buy softcover from Amazon Buy softcover from Barnes & Noble   Available from your bookseller or online

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Synopsis	Table of Contents	The Author	Related Resources	Details

Legislative drafting is -- to the extent it is writing at all -- the form of writing used for legislative measures, a category that covers original bills and resolutions as well as amendments. Ultimately, legislative drafting is the form of writing used for enacted law. The focus of this book is on legislative drafting for the Congress of the United States, but many, if not most, of the principles described here apply just as well to drafting for other legislatures.

Within the profession, legislative drafting is known simply as drafting, so this book prefers that simpler term throughout. Likewise, this book uses "drafter" to mean one who drafts, "client" to mean one for whom the drafter drafts, and "draft" (as a noun) to mean the text prepared by the drafter for the client.

As forms of writing go, drafting is not freewheeling like poetry, nor showy like rhetoric, nor personal like a novel. Drafting is disciplined, rigorous, and analytical. Done well, drafting can also be creative, elegant, and clever. (Unfortunately, drafting is not always done well.)

Drafting is done by a wide variety of people with a wide variety of qualifications. Some drafters specialize in drafting, some do not. Some are full-time drafters, some not; some are in public service, some not. A drafter may or may not be a lawyer, though for some of the more advanced tasks, being a lawyer may be useful or even required.

The purpose of this book is to provide practical advice on drafting to anyone who does, or may, engage in drafting, and indirectly to provide insight into the drafting process to other interested people. For example, this book is for people who are more interested in policy than in drafting, but want to understand why drafters operate the way they do. It is also for people who are more interested in reading and interpreting the law than in drafting, but want to understand why laws are drafted the way they are. It is hoped that this book will be accessible to beginners while remaining valuable to veterans.

The traditional method of training drafters is to train them on the job; the consensus is that drafting is best learned holistically, on a case-by-case basis. For that reason this book is best used as a resource, not a course. It is a supplement to, not a substitute for, the learning that comes from experience.

The author has nearly 20 years' experience in writing and the law, first as a journalist, then as a trial and appellate lawyer, and finally as an assistant counsel in the Office of the Legislative Counsel of the United States House of Representatives. (The views expressed here are solely his own.) Based on his experiences, the author designed this book to answer the variety of questions about drafting that arise daily in the work of individuals with a professional interest in how bills, resolutions, and laws are drafted. The approach used here is pragmatic: You will find no linguistic theories or esoteric conundrums discussed here. What you will find is solid advice for everyday drafting projects.

From § 1.00  Introduction

Summary of Contents

Chapter 1. Being a Drafter
Chapter 2. Understanding How Laws Are Made
Chapter 3. Considering the Courts: Statutory Interpretation
Chapter 4. Thinking Through the Policy
Chapter 5. Choosing the Right Measure
Chapter 6. Writing Effectively
Chapter 7. Organizing and Arranging
Chapter 8. Using the Right Style
Chapter 9. Affecting and Amending Other Laws
Chapter 10. Working in, and Working with, the Executive Branch

Appendices

Back of the Book
Table of Cases
Table of Constitutional Provisions
Table of Statutes at Large
Table of Public Laws
Table of U.S. Code Sections

Index

Table of Contents

Chapter 1. Being a Drafter
1.00  Introduction
1.10  The Essence of Drafting
1.11  The Drafter and the Policymaker
1.12  How Policy Can Influence Drafting
1.13  How Drafting Can Influence Policy
1.20  The Drafting Process
1.30  Professional Obligations
1.31  Drafting by Attorneys and by Non-Attorneys
1.40  Attributes Important to Drafting
1.41  Knowledge
1.42  Skills
1.43  The "Legislative Counsel Type"
1.50  Resources Important to Drafting

Chapter 2. Understanding How Laws Are Made
2.00  Introduction
2.10  Organization and Operation of Congress
2.11  Congress from Term to Term
2.12  Functions of Congress
2.13  Committees
2.14  Clerks
2.15  Parliamentarians
2.16  Offices of Legislative Counsel
2.17  Law Revision Counsel
2.20  The Legislative Process in Congress
2.21  Introducing a Bill
2.22  Number, Referral, and First Print
2.23  Hearings and Markups: Overview
2.24  Subcommittee Action
2.25  Full Committee Action
2.26  Floor Proceedings
2.30  Actions in Other Chamber
2.31  Resolving Differences by Amendment or Conference
2.40  Enrollment
2.41  Last-Minute Corrections
2.50  Executive Action
2.51  Presentment to the President
2.52  Approval (or Disapproval)
2.60  Publishing the Law
2.61  Public Law Number
2.62  Slip Law
2.63  Statutes at Large
2.70  Compilations
2.80  The United States Code
2.81  The Revised Statutes of 1873
2.82  The Revised Statutes of 1878
2.83  Positive Law and Non-Positive Law
2.84  Origin of the Code as Non-Positive Law
2.85  Editorial Changes
2.86  General and Permanent Law
2.87  Organization into Titles
2.88  Enactment of Titles into Positive Law
2.89  Codification and Classification of New Laws
2.90  Resolving Conflicts among Published Versions of Law

Chapter 3. Considering the Courts: Statutory Interpretation
3.00  Introduction
3.01  Courts: The Most Important Audience
3.02  What Kind of Judge?
3.10  Judicial Power and Legislative Supremacy
3.11  The Power to Interpret
3.12  Making Congress Follow the Techniques
3.13  Tensions between Courts and Congress over Interpretation
3.14  Efforts by Congress to Regulate Interpretation
3.20  The Overriding Goal: Determine the Intent of Congress
3.21  Rules of Thumb, Not Rules of Law
3.22  Three Common Theories (Intentionalism, Textualism, and Pragmatism) and Their Limitations
3.23  The Plain Meaning Rule
3.24  The Meaning of "Plain Meaning"
3.25  The Consequences of Plain Meaning
3.26  When Plain Meaning Is Not Enforced
3.27  When There Is No Plain Meaning
3.30  Reading the Text of the Statute
3.31  Reading the Text of the Statute
3.32  Derive Meaning from Context
3.33  Assume Words Are Used Consistently
3.34  Assume Each Word Is Used for a Reason
3.35  Assume the Provisions Form a Coherent Whole
3.36  Purposes, Findings, Titles, and Headings
3.37  Grammar and Punctuation
3.38  Placement in Code
3.40  Considering Other Statutes
3.41  Related Statutes
3.42  General Federal Laws
3.43  Earlier Versions of the Same Statute
3.44  Resolving Conflicts between Statutes
3.50  Considering Constitutional Issues
3.51  Avoiding Serious Constitutional Problems
3.52  When the Court Requires Clear Statements
3.53  When the Court Requires Specific Findings
3.60  Actions by the President and Other Executive Officers
3.61  Presidential Signing Statements
3.62  Agency Interpretation and Chevron Deference
3.70  Actions by the Congress and Other Legislative Officers
3.71  Interpretation of Appropriations Acts
3.72  Legislative History: Why It Is Problematic
3.73  Legislative History Compared with Post-Enactment Statements
3.74  Legislative History Compared with Subsequent Legislative History
3.75  Report Language
3.76  Individual Statements
3.77  Hearing Testimony
3.78  Amendatory History
3.79  The Opinion of the Drafter
3.80  Some Topics of Special Interest to Drafters
3.81  Definitions and Terms of Art
3.82  Narrow Interpretations and Broad Interpretations
3.83  Congress Does Not Mumble
3.84  How the Court Interprets a List
3.85  The Court's Reluctance to Imply Additional Exceptions
3.90  Conclusion

Chapter 4. Thinking Through the Policy
4.00  Introduction
4.10  The Perils of Ineffective Thinking
4.11  Problems of Application
4.12  Problems of Transition
4.13  Problems of Administration
4.14  Problems of Enforcement
4.15  Problems of Prediction
4.20  The Elements of Thinking Through the Policy
4.21  Engaging the Client
4.22  Figuring Out the Problem and the Objective
4.23  Asking for Details
4.24  Researching the Facts and Law
4.25  Analyzing Alternatives
4.26  Creating a Coherent Solution
4.27  Conducting a Reality Check
4.30  Two Ways to Test Legal Rules: The Actor-Action Model and the If-Then Model
4.31  The Actor-Action Model
4.32  The If-Then Model
4.33  Tools for Thinking, Not Writing
4.40  The Major Types of Legal Rules
4.41  Law Is a Vast System of Legal Rules
4.42  Rules of Command
4.43  Rules of Discretion
4.44  The Complex Interplay between Commands and Discretion
4.45  Rules of Stipulation
4.46  How the Types of Rules Can Overlap
4.47  Commands That Are Not Mandatory: Hortatory, Precatory, and Directory
4.48  Discretion That Is Not Unfettered
4.50  Considering the Constitution
4.51  Sources of Power
4.52  Limitations on Power
4.53  A Word of Caution
4.60  Parliamentary Issues
4.61  Budgetary Issues

Chapter 5. Choosing the Right Measure
5.00  Overview
5.10  Elements Common to All Measures
5.11  Designation and Number
5.12  Term and Session Identifier
5.13  Chamber Identifier
5.14  Sponsor and Referral Information
5.15  Long Title
5.16  Enacting Clause or Resolving Clause
5.17  Text or "Body"
5.18  Information Provided by Legislative Counsel
5.20  The Bill
5.21  What It Means to "Make Law": The Chadha Decision
5.22  Long Title
5.23  Enacting Clause
5.30  The Simple Resolution
5.31  Long Title
5.32  Resolving Clause
5.33  Text
5.40  The Concurrent Resolution
5.41  Long Title
5.42  Resolving Clause
5.43  Text
5.50  The Joint Resolution
5.51  Long Title
5.52  Resolving Clause
5.53  Text When Proposing a Constitutional Amendment

Chapter 6. Writing Effectively
6.00  Introduction
6.10  The Perils of Ineffective Writing
6.11  Ambiguity
6.12  Inconsistency
6.13  Arbitrariness
6.14  Vagueness
6.15  Over-Precision
6.16  Over-Generality and Under-Generality
6.17  Overbreadth
6.18  Poor Readability
6.19  Enactment by Reference
6.20  The Elements of Being Clear
6.21  Be Simple
6.22  Be Ordinary
6.23  Be Brief
6.24  Be Consistent
6.25  Be Readable
6.30  Use Plain English
6.31  Beware "Plain Language"
6.40  Drafting an Effective Sentence
6.41  Arrange Words with Care
6.50  The Action
6.51  Active Voice
6.52  Present Tense
6.53  Verbs That Are Vivid and Concrete
6.54  Indicative Mood
6.55  "Shall" and "May"
6.56  "Shall Not" and "May Not"
6.60  The Actor
6.61  Third Person
6.62  Singular Rather Than Plural
6.63  Articles Rather Than Indefinite Adjectives
6.64  Avoid Pronouns
6.65  Avoid Noun Chains
6.70  Punctuation
6.71  Use the Serial Comma
6.72  Include Punctuation when Amending Other Law
6.80  Start from Scratch if You Can
6.90  No Such Thing as a Perfect Draft

Chapter 7. Organizing and Arranging
7.00  Introduction
7.10  Choosing a Sequence
7.20  The Section
7.30  Subdividing a Section into Smaller Units
7.31  Referring to Smaller Units
7.32  Interlocked Units
7.33  Undesignated Units
7.40  Grouping Sections into Big Levels
7.50  Using Definitions
7.60  Arranging and Drafting Commonly Used Provisions
7.61  Short Title
7.62  Authorization of Appropriations
7.63  Severability and Non-severability
7.64  Applicability or Effective Date

Chapter 8. Using the Right Style
8.00  Introduction
8.10  The Style of the Early Congresses (Style of 1789)
8.20  Appropriations Style
8.30  Traditional Style
8.40  Revenue Style
8.50  Modified Revenue Style
8.60  Code Style
8.70  Variations and Mavericks

Chapter 9. Affecting and Amending Other Laws
9.00  Introduction
9.10  How Courts Reconcile Statutes
9.20  Repealing a Law
9.30  Amending a Law
9.31  The Cut-and-Bite Method (Striking and Inserting)
9.32  The Restatement Method (Amending to Read as Follows)
9.33  Writing Amendatory Instructions Effectively
9.34  Redesignations
9.35  The Ratification Doctrine
9.40  Affecting without Amending
9.41  Notwithstanding Any Other Provision of Law
9.50  Attempting to Bind Future Congresses
9.51  Attempting to Authorize Future Congresses
9.60  Referring to Other Law
9.61  Incorporating Other Laws by Reference
9.70  Avoiding Damage to the Statute Book

Chapter 10. Working in, and Working with, the Executive Branch
10.00  Introduction
10.01  Drafters Who Are "More Than Drafters"
10.02  Drafters Who Draft Regulations
10.10  The Role of the President in Legislation
10.11  Agencies and Tensions within the Executive Branch
10.12  Ways in Which Agencies Interact with Congress
10.13  Who Is Your Client?
10.20  Overview of the Office of Management and Budget (OMB)
10.21  OMB's Organizational Units
10.22  OMB's Major Functions
10.30  Relationship between Legislative Proposals and Budget Submissions
10.31  The Annual Cycle (Circular No. A-11)
10.40  Legislative Coordination and Clearance (Circular No. A-19)
10.41  Submission of Legislative Program by Agency
10.42  Submission of Proposed Legislation by Agency
10.43  Coordination and Clearance of Proposed Legislation by OMB
10.44  Agencies with Legislative "Bypass" Authority
10.50  Choosing Strategies for Developing Proposals

APPENDICES
Appendix One. The Impact of Information Technology on Drafting
App. 1.00  Introduction
App. 1.10  Instant Bills: The Impact of Information Technology (IT) on Legislative Drafting in Canada

Appendix Two. Suggestions for Further Reading
App. 2.00  Introduction
App. 2.10  Books
App. 2.20  Journals and Periodicals
App. 2.30  Articles

Appendix Three. Useful Web Sites
App. 3.00  Introduction
App. 3.10  Federal Drafting Offices and Related Sites
App. 3.20  State and Local Drafting Offices and Related Sites
App. 3.30  Foreign and Multinational Drafting Offices and Related Sites
App. 3.40  Manuals and Guides
App. 3.50  Non-Governmental Organizations
App. 3.60  Other Online Resources

Appendix Four. The Legislative Process--A Working Example
App. 4.00  Introduction
App. 4.10  Federal Drafting Offices and Related Sites
App. 4.11  Bill as Introduced in the House
App. 4.12  Bill as Reported
App. 4.13  Banking and Financial Services Committee Report
App. 4.14  Banking and Financial Services Committee Supplementary Report
App. 4.15  Commerce Committee Report
App. 4.16  Special Rule from the Rules Committee
App. 4.17  Rules Committee Report
App. 4.18  Statement of Administration Policy (House)
App. 4.19  Legislation as Passed the House
App. 4.110  Legislation as Received in the Senate
App. 4.111  Legislation as Introduced in the Senate
App. 4.112  Senate Committee Report
App. 4.113  Statement of Administration Policy (Senate)
App. 4.114  Legislation as Passed the Senate
App. 4.115  Legislation Received in the House from the Senate
App. 4.116  Side-by-Side Comparative Print
App. 4.117  Conference Chair's Letter to Conferees
App. 4.118  Conference Committee Amendment Proposed
App. 4.119  Conference Report
App. 4.120  Joint Explanatory Statement
App. 4.121  Special Rule from the Rules Committee for Consideration of the Conference Report
App. 4.122  Enrolled Measure
App. 4.123  Public Law

Appendix Five. Positive Law and Non-Positive Law
App. 5.00  Introduction
App. 5.10  List of Titles of the United States Code
App. 5.20  The Code as Positive Law: Title 1
App. 5.30  The Code as Non-Positive Law: Chapter 9 of Title 2

Appendix Six. Concerning Birds and Ponies, Poultry and Rabbits
App. 6.00  Introduction
App. 6.10  Regina v. Ojibway
App. 6.20  The "Rabbit Bill"

Appendix Seven. The Federal Legislative Measures--Some Examples
App. 7.00  Introduction
App. 7.10  A Bill
App. 7.20  A Private Bill
App. 7.30  A Simple Resolution
App. 7.40  A Concurrent Resolution
App. 7.50  A Joint Resolution
App. 7.60  A Joint Resolution Proposing a Constitutional Amendment

Appendix Eight. The Federal Drafting Styles--Some Examples
App. 8.00  Introduction
App. 8.10  The Style of 1789
App. 8.20  Appropriations Style
App. 8.30  Traditional Style
App. 8.40  Revenue Style
App. 8.50  Modified Revenue Style
App. 8.60  Code Style

Appendix Nine. Executive Branch Materials
App. 9.00  Introduction
App. 9.10  OMB Circular No. A-19
App. 9.20  OMB Circular No. A-11
App. 9.30  Executive Order 12866
App. 9.40  Executive Order 12988

Appendix Ten. A Drafting Practicum
App. 10.00  Introduction
App. 10.10  Sample Letter to Drafter
App. 10.20  Initial Draft
App. 10.30  Discussion Draft

Appendix Eleven. The Constitution of the United States
App. 11.00  Introduction
App. 11.10  The Constitution of the United States

Back of the Book
Table of Cases
Table of Constitutional Provisions
Table of Acts
Table of Statutes at Large
Table of Public Laws
Table of U.S. Code Sections
Table of Cases

Index
 

TOBIAS A. DORSEY is an attorney in the Office of the Legislative Counsel of the U.S. House of Representatives. Within that office, he works primarily on issues relating to national defense, homeland security, and civil and criminal justice. He has taught at drafting seminars and is an active member of various drafting and professional associations. He serves on the governing council of the Capitol Hill Chapter of the Federal Bar Association.

Before joining the office, Mr. Dorsey was a trial and appellate lawyer in private practice. He has brought appeals to the highest State court of Maine and of California and to the Supreme Court of the United States. He has written articles, edited a legal magazine, and directed the in-house research and writing program at several law firms. He is a member of the bar in Maine, Massachusetts, and California, and a member of the bar association of the Supreme Court of the United States.

Before becoming a lawyer, Mr. Dorsey was a reporter and editor for several newspapers. He earned his bachelor's degree from Cornell University and his law degree from UCLA School of Law.

Mr. Dorsey lives in Maryland with his wife, children, and border collie.

Clint Brass wrote Chapter 10, "Working in, and Working with, the Executive Branch".

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Rave Reviews

"One of the best features of the book is that the author does not just tell you the rules for drafting legislation, he shows how they work; and, even better, he shows how they can be used to turn an acceptable draft into one that is more organized and precise."
-- David DeVries, The Public Lawyer, Summer 2007 (click for full review - 3-page pdf) (chair of the Government and Public Sector Lawyers Division of the ABA from 2000-2001)

"The Legislative Drafter's Deskbook: A Practical Guide is a masterful work.  It is comprehensive and exceptionally well written.  It is an essential tool for anyone who drafts legislation or interprets the law."
-- William K. Suter, Clerk of the United States Supreme Court

"The Legislative Drafter's Deskbook: A Practical Guide is exactly that. It should be a part of every Federal practitioner's library. Even the experienced legislative attorney will find things in the Deskbook that he or she did not know. It is an essential and indispensable book, both as a reference work and as a thorough introduction to Federal legislative drafting."
-- Frank Burk, Legislative Counsel of the United States Senate 1991-1998

"The Legislative Drafter's Deskbook is an invaluable resource for any legislative drafter working to hone her skills or student seeking to become proficient in legislative drafting. Uniquely among drafting guides, this book demonstrates a sophisticated institutional awareness, devoting substantial attention to statutory methods and techniques that will be used by courts to interpret statutes and to the approach that agencies are likely to take when interpreting or implementing Congress' directives. It is clear that this Deskbook was written by an expert with experience in actual legislative drafting; it carefully analyzes the role of the drafter relative to the policymaker and includes helpful discussions of professional norms and expectations. Although the Deskbook is focused on legislative drafting at the federal level, where Tobias Dorsey works in the House of Representatives' Office of Legislative Counsel, the succinct and thorough assessment of good legislative drafting techniques provides a set of 'best practices' for drafters at all levels of government."
-- Elizabeth Garrett, Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, Political Science, and Policy, Planning and Development, University of Southern California

"Dorsey's Legislative Drafter's Deskbook is the perfect companion for both drafters of legislation and students of statutory interpretation. It is a well-written and clear guide to the do's, don'ts and whys of writing effective legislation."
-- Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School

"Tobias Dorsey has created a valuable and practical tool for all legislative drafters. He correctly notes that much of the drafter's work involves helping the client think through and clarify the policy choices in the request and he provides clear tips on how to persistently carry out that work. His chapters on writing and organizing bill drafts similarly identify common mistakes and suggest better practices. Dorsey's obvious drafting skills play out on every page of the book, as readers will find solid thinking and clear writing throughout his publication. Although the book has a federal perspective, state legislative drafters will also greatly appreciate this work."
-- Bruce Feustel, Senior Fellow, National Conference of State Legislatures

"Comprehensive yet still accessible, thorough yet refreshingly clear--Dorsey's new book, the Legislative Drafter's Deskbook, is a stellar reference. If you are drafting federal legislation, you need this book. If you work with legislative drafters, you need this book. Even if you are just interested in the drafting process generally, you will want this book."
-- Mary Barnard Ray, Senior Lecturer and Assistant Director of Legal Research and Writing, University of Wisconsin, and author of "Legal Writing: Getting It Right and Getting It Written," "The Basics of Legal Writing," and "Beyond the Basics: A Text for Advanced Legal Writers"

"The Legislative Drafter's Deskbook is essential reading for both professional and occasional legislative drafters. Dorsey's solid experience as a journalist, lawyer, and professional drafter shines through as he delivers scores of vital tips for successful drafting and provides keen insight into how our laws are made and how they are interpreted by the courts. Highly readable and thoroughly enjoyable from cover to cover, Dorsey's deskbook offers practical guidance to the aspiring drafter in not only polishing essential writing skills, but also in asking tough questions, spotting thorny issues, and offering creative solutions that will capture the intended choices of policymakers. If each legislative draft is indeed a puzzle, as Dorsey suggests, he has given us in this book the tools by which we can solve even the most vexing of legislative drafting problems."
-- Louis S. Rulli, Practice Professor of Law, University of Pennsylvania Law School

"Legislative Drafter's Deskbook: A Practical Guide presents legislative scholars, legislation drafters, and quite frankly anyone interested in the construction of statute with a meticulous exploration of the planning and thought processes that must occur in order for clear, understandable laws to be written. Dorsey accomplishes his desired missions of providing practical advice to drafters and interesting insight to scholars (and normal people) on the drafting process."
-- Curtis Ellis, American Political Science Association's Legislative Studies Section Newsletter
 

"The Legislative Drafter's Deskbook is my most prized possession in my office. I am constantly highlighting and quoting from the book, and I guard it with my life so nobody walks off with it! We recently went through government reform and transitioned from a tribal council form of government to a three branch system. The Legislative Drafter's Deskbook has been fundamental in establishing our drafting procedures - thank you for this wonderful resource!"
-- Rebecca L. Hillock, J.D., Director of Legislative Services, Osage Nation Congress
 

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