October 04, 2015 03:47 UTC


Writing Laws So Lawyers Are Not the Only Ones Who Can Read Them

Avi Arditti

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AA: I'm Avi Arditti with Rosanne Skirble, and this week on WORDMASTER: Our guest is David Marcello, executive director of the Public Law Center, a joint program of the Tulane and Loyola law schools in New Orleans.

RS: For about 20 years now, the center has been training people from other countries whose job is to write legislation. More than 500 legislative drafters from 90 countries have attended a training institute held each June.

AA: David Marcello says two trends account for the need for increased skills in legislative drafting. The first: the move toward a global economy, requiring more international trade agreements.

DAVID MARCELLO: "The second is the move toward democratization, which likewise requires a new regime of domestic laws. So legislative drafting personnel -- the people who actually write the acts that are considered by legislative bodies -- have been under the gun to produce better drafts of legislation. And our program has attempted to respond to that need with the two-week training program."

RS: "How important is language?"

Writing Laws So Lawyers Are Not the Only Ones Who Can Read Them
Writing Laws So Lawyers Are Not the Only Ones Who Can Read Them

DAVID MARCELLO: "Language is, of course, how we communicate policy, and it's important that those communications -- particularly in the form of legislation -- be direct and simple and free as much as possible from ambiguity."

RS: "You say that it's important to be direct and to be simple. How do you teach that in two weeks?"

DAVID MARCELLO: "We like to ask our drafters at the end of the training, Which of the techniques that we have suggested can you take home next week and put into practice in your office? And then we list them: shorter sentences and paragraphs. Everyday language. Words that have ordinary meanings in dictionaries. Punctuation that is used appropriately.

"All of these things are things that drafters can do to enhance reader understanding and to eliminate ambiguity in the law. And they do not need to ask permission to do these things. They can do them because they are appropriately within the realm of the drafter's role and discretion.

"Many pieces of legislation are written in a way that suggests they only speak to one group of people: the lawyers who wrote it. In fact, legislation should speak as broadly as possible to as many people as possible, and plain English is one way of doing that -- or plain language, more generally speaking."

AA: "And I'm curious about that. Again, from language to language, culture to culture, are there some where you find it's just easier to write more plainly and directly?"

DAVID MARCELLO: "I think across most cultures the tendency to write in more complicated modes of expression has been characteristic in the past. I see it as more a measure of modernity, moving into a more modern idiom, that we move from complicated to simpler expression.

"You know, you have to have a certain confidence in your ability as a culture to express policy before you can embrace the simplest way of doing that. The law has a dignity that will not be denied by the use of plain language. It does not need outdated, complicated forms of expression in order to accomplish its purposes. And, in fact, its purposes are best accomplished by the use of plain language rather than language that keeps readers from understanding what's intended."

RS: "When you present these ideas to your students, the people who are taking your seminar from other countries, are you basically raising awareness to this point?"

DAVID MARCELLO: "I'll relate for you an anecdote that one of our former drafting participants gave to us. She said that she felt she had not been well-served by her legal education because she was taught to write in flowery language. And she realized as she looked back upon it that that might have been a deliberate strategy by a government that was not particularly governed by the rule of law, but rather by the rule of edict. The rule of law carries substance and meaning at its heart and it constrains government."

AA: David Marcello at the Public Law Center in New Orleans says legislative drafters sometimes face resistance to what they learn there. But he says some countries have invited staff from the center to come and provide follow-up training.

RS: Training not only for other drafters, but in some cases for the politicians elected to vote on what they draft. And that's WORDMASTER for this week. With Avi Arditti, I'm Rosanne Skirble.

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