Thinking Through the Policy Before Drafting Legislation

Legislative drafts can fail for two reasons. Some fail because of poor communication while others fail due to a lack of imagination. Whenever there is a lack of communication, in most cases the draft is simply not clear. Common sense editing can usually resolve this problem. Whenever there is a lack of imagination, the draft is simply not adequate. These types of problems are usually not as visible to the naked eye and the appropriate resolution to this problem is thinking through the policy.

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Creative Commons License photo credit: abbybatchelder

The writing portion of drafting legislation is certainly important, but the more time-consuming aspect of the task is thinking through the policy. When policy is not thought out properly, the result is additional work for judges and the distinct possibility that the policy will not work effectively. A policy that is not well thought out may not respond to the problem or it may result in unintended side effects. Controversy and confusion can occur as a result. Thinking through the policy before putting pen to paper or finger to keyboard is critical .

There are seven elements associated with thinking through policy. They are:

  • Engaging the client
  • Figuring out the problem and the objective
  • Asking for details
  • Researching the facts and law
  • Analyzing alternatives
  • Creating a coherent solution
  • Conducting a reality check

Information can always be wrong, facts can shift and laws can overlap one another. When drafting legislation, the client has likely approached you with a prejudged sense regarding what must be accomplished. This should not be taken at face value. While you should respect it, it is imperative that you do not accept it. Clients often do not properly think through policy. They may even be operating on the recommendation of a third-party. At this point, what the client needs most from you is independent, critical thinking.

Take the time to be skeptical and question all assumptions. Imagine possible resulting scenarios. Utilize good judgment. While your client may not always have the time or the patience, you want to provide answers that your client needs to hear, not necessarily what they want to hear.

To learn more about drafting effective legislation, consider our Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Section 4.0 Thinking through the Policy.

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