Even if we never set foot inside a statehouse or walk the halls of Congress, as attorneys we need to confidently navigate bills and statutes. Bill language can be complex and confusing. However, as stewards of the code, we should build our legislative skills and work to protect the integrity of the legislative process. Creative and technically proficient legislative writing allows lawyers to shape the legal landscape. From bill drafting to statutory interpretation, a few simple guidelines can help you feel more confident the next time you pick up a proposed law or attempt to amend one to address your client’s interests.
Below is an overview of some fundamental skills and emerging issues in legislative drafting and interpretation.
Basic Skills
Analyzing Legislative History
Legislative history is an important means to discover the purpose, scope, and applicability of a statute, but pouring over reports and testimony can be overwhelming. Although courts may give it varying weight or only consider the plain meaning of a statute, legislative history can help attorneys determine legislators’ intent and clarify vague provisions.
So, what should you look for? Legislative bodies create hundreds of records when drafting, debating, amending, and passing a bill. Generally, the most comprehensive resource will be the reports passed out of the committee of jurisdiction (note that both the majority and minority can produce reports, often with different conclusions). Legislative history can also include committee hearings, floor debates, past bill versions, statements of intent, fiscal or budget analysis, floor amendment language, committee markups, agency reports, bill summaries, conference reports, signing statements, and voting records. Most, but not all, of these records are publicly available.
While legislative history can let you peer into the minds of legislators, it can also be used to create a narrative to support the interpretation that best supports your client’s interests. Reports and hearings often include values statements by lawmakers, constituent stories or data that informed their policy choices, and even letters from specific supporters. However, because the legislative process is complex and (at its best) involves compromise, the treatment of a specific provision may not be a smoking gun for legislative intent. Nevertheless, attorneys who are comfortable compiling legislative history have access to an important storytelling device that can demonstrate how a law should be interpreted or applied.
Aside from your normal legal search databases, here are some public sources for federal and state legislative history:
- Congress.gov and govinfo.gov contain the full text of federal bills, bill summaries, and voting records.
- The Library of Congress stores congressional documents dating back to 1799.
- Govtrack and Legiscan provide bill tracking, member background information, and voting records.
- House and Senate committee websites (as well as the House and Senate clerks) publish hearing transcripts, press releases, and committee reports.
- Indiana University Maurer School of Law (my alma mater) has a 50-state resource for state legislative history.
- State legislative research agencies, reference libraries, and supreme court libraries sometimes have searchable online databases.
Practical Tips for Drafting and Reading Legislation
Drafting legislation requires issue-specific expertise, extreme attention to detail, and the ability to look at an issue from 30,000 feet as well as through a microscope. Legislative drafting attorneys adhere to strict rules that determine applicability, authority, conditions, penalties, and procedure. Good legislative drafting should minimize misinterpretation; therefore, consistency and specificity are key.
Understanding basic statutory structure will allow you to create arguments more efficiently, understand better which laws apply to your client, and help you sound like an expert:
- Define your terms. Terms in legislation and statute have specific, technical definitions that can differ from how you would use the word in everyday conversation. Included definitions may also signal legislative intent. Most titles, articles, chapters, or sections will have a definitions section. You should start with this section when reading a pending bill or statute. When searching the code for applicable sections, broaden your search terms beyond the obvious—for example, if you are searching for statutes governing school bus drivers, you may actually need to search for “chauffer” instead. Also, keep in mind that a term in one title may have a different definition in another title. For example, in some states, seemingly simple words such as “owner,” “dealer,” or “facility” are newly defined in each chapter within a title to suit that chapter’s purpose.
- Who’s on the hook? The operative words in any statute will tell you the rights and duties conferred. A good bill should clearly assign a responsibility to a specific party (for instance, “the administrator shall establish Program X,” not “Program X shall be established”). Whether the law says “may” or “shall” can make all the difference in how a statute applies to your case. Although there is some debate about the use of “shall,” it is still used by many states to confer a duty or obligation on a party, while “may” is a permissive term. Mistaking a duty for an option (or the other way around) is one of the most common mistakes attorneys and other interested parties make. Pay careful attention to “and” versus “or,” especially when dealing with lists. Based on how a list is tabulated, the conjunction may modify the whole list, or it may provide options based on certain requirements. You may also need to read carefully to determine if a list is finite and wholly required or merely provides examples of acceptable conditions.
- Order of operations. When you practice in a certain state, take time to learn how the code is generally organized and how new language is indicated. Many states strike out or bracket language to be removed, and new language may be indicated in bold, underline, or italics. Current law may also be wholly removed through a repeal or strike-and-insert provision. Most bills and statutes follow a similar format: definitions, applicability, authority and administrative provisions, substantive body (including imposition of rights or duties), procedure, enforcement, sunset or effective dates, and any miscellaneous provisions. Be sure to read statutes as part of the greater article or title, as earlier provisions in the code may bind the section you are examining. Usually, the best place to start in a bill is the list of sections to be amended. Many laws also contain technical and conforming changes, which are not substantive and generally deal with punctuation, clarifying changes, or cross-references. Also, be on the lookout for exceptions, conditions, cross-references, and limitations on authority that may appear later in the chapter—don’t stop reading too soon!
- Punctuate carefully. At the end of the day, careful observation of punctuation and tabulation are still essential. When reading a tabulated list, remember that operative language, including “may” or “shall,” may come before or after the list itself. Punctuation details such as Oxford (serial) commas, colons, hyphens, and semicolons often have substantive legal purposes. Always check for cross-references within the bill, which can be referred to either by a verbal description or a direct numerical reference to another part of the code.
Despite these guidelines, there is no uniform process of legislative drafting. In some states, drafting attorneys work as part of a legislative drafting service, but in other states, personal or political staff write bills. Lawmakers also receive bills from interest groups and other outside parties, which could follow very different drafting formats. Regardless of the drafting source, legislation is one side of a conversation between drafters and the courts, so it is important to speak clearly when drafting a bill.
Language Matters in Statutory Interpretation
With so many rules guiding drafters, why are statutes sometimes unclear? In some cases, the meaning of a word changes, new technology becomes the industry standard, or new applications of a law create unintended ambiguity. Other laws may be intentionally vague or simply confusing due to political compromise.
Statutory interpretation can say as much about how the reader sees the world as it does the words on the page—sometimes it is used more as a way to make an argument rather than gain decisive meaning. Instruments of interpretation include the purpose, legal interpretations, context and structure, and the text itself. Some states even lay out rules of statutory interpretation in their code. For example, Delaware provides that “words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language.” Another section reminds readers that descriptive headings, notes, and other reference analyses do not constitute law.
Along with legislative history, formal canons of construction can be useful tools to provide support for a particular interpretation of a statute. Many of the canons model good legislative drafting practices, such as preferring the “common meaning” of an undefined term or the direction to read the text as a whole. Some canons are common sense; the “constitutional-doubt canon” states that a statute should be interpreted in a way that avoids placing its constitutionality in doubt. Others further prove the importance of careful language selection, such as the “surplusage canon,” which requires that every word and provision be given effect and none needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
A holistic understanding of the legislative process is helpful in statutory interpretation. The “negative-implication” canon is a prime example; it states that the express inclusion of one thing implies the exclusion of others. Although this may accurately reflect the intent of the drafters in some cases, anyone who has witnessed the legislative process knows that excluding a term may also be the result of time constraints or lack of subject matter expertise, etc. Attorneys should consider the broader context of a bill when reading for intent. To ensure your drafting is precise and achieves its intent, consider how someone opposed to the bill might challenge it.
Legislative Interpretation at the Supreme Court: West Virginia v. EPA
No discussion of legislative intent would be complete without the recent landmark case, West Virginia v. EPA. It’s too early to tell how this case will impact future courts’ treatment of congressional authority, but it certainly shook up the world of statutory interpretation.
In this case, the Court considered whether the U.S. Environmental Protection Agency (EPA) could consider “generation shifting”—from coal and natural gas to renewables—when determining the “best system of emissions reduction” under Section 111(d) of the Clean Air Act. The Court found that the Clean Power Plan exceeded EPA’s statutory authority but otherwise affirmed the agency’s authority to regulate carbon dioxide emissions. More importantly for our purposes, the Court clarified the “major questions doctrine,” which requires that in “extraordinary cases” of “political and economic significance,” an agency must be able to point to a “clear statement” of authority from Congress.
The case sets the stage for a robust debate about the goals of statutory interpretation, how Congress can best signal its intent, and how to respond in the face of ambiguity. Courts may now have to be more skeptical of novel interpretations or guess what constitutes a clear statement of authority. To reach its conclusion, the Court focused on the intent of Congress, and the majority weighed heavily the historical use of Section 111(d). In his concurrence, Justice Neil Gorsuch attempted to clarify “clear congressional authorization,” recommending a review of legislative provisions, the age and focus of the statute, the agency’s past interpretations, and the mismatch between the agency’s challenged action and its congressionally assigned mission and expertise. The outcome in this case illustrates a fundamental divide in the Justices’ approaches to discretion and legislative intent—should we always expect lawmakers to say what they mean, and when does saying nothing become a statement in itself?
