Teaching the Art and Craft of Drafting Public Law: Statutes, Rules, and More

Abstract

For centuries, lawyers have been notorious for long-winded writing filled with legalese, hyper-technical expression, and convoluted sentence structure. Legal writing in memos and briefs has been characterized as wordy, unclear, pompous, and just plain dull. Legal drafting, defined as the specialized skill of creating legal rules, is even more fraught with problems. In particular, no standardized, consistently used methodology exists in the United States for drafting federal and state statutes, agency regulations, and court rules.

In 1954, the late Professor Reed Dickerson observed, “It would be hard to exaggerate the importance of knowing how to prepare an adequate legal instrument. This is particularly true of statutes.” Professor Dickerson called on law schools to do more to help future lawyers develop essential skills for legislative drafting as well as other kinds of “legal craftsmanship.” Over the last fifty years, American law schools have devoted much greater attention to objective and persuasive writing, and many have added drafting courses. But few offer legislative and rule-drafting courses, and even fewer require students to learn how to draft legal rules. And the legal profession has yet to adopt a systematic method for drafting legal rules that can be easily understood by others.

This article reflects our efforts to help fill that void by demonstrating a straightforward, uniform approach to drafting legal rules of all kinds, including statutes, agency rules, and private contracts. By proposing a more unified approach to legal drafting, we hope to emulate Professor Reed Dickerson’s tireless efforts to promote legal drafting as an essential component of every lawyer’s professional education.

Keywords: Drafting, Legislation, Public Law, Statutes, Bills, Rules, Contracts, Instruments, Dickerson