Thursday, September 24, 2009

Celebrate National Punctuation Day

Jeff Rubin is the founder of National Punctuation Day. Quoting from the official NPD website, he says: “Casual shortcuts bred by e-mailing and text messaging have no place in school papers or professional business writing. In the business world, words have power and help decision-makers form impressions immediately. Careless punctuation mistakes cost time, money, and productivity." Well said. But, Law Writer simply will not post the entry requirements of the National Punctuation Day Baking Contest . . . oh well, why be so stuffy?


- Entrants must send a recipe and a sample of their cookie, cake, pastry, doughnut, or bread baked in the shape of a punctuation mark to National Punctuation Day, 1517 Buckeye Court, Pinole, CA 94564.
- Entrants must send two photos — one putting the item in an oven before baking and the other taking it out when it’s done. Make sure we can see the baked goods clearly.
- First-, second-, and third-place winners will receive a box of NPD goodies, and all entrants’ photos will be published on the National Punctuation Day website (
- All entries must be received by September 30, 2009."

Links of note on this day:

Tuesday, September 22, 2009

Back to Basics: The Legislative Product

A bill must have a title, an enacting clause, and a body of provisions to be enacted. To draft bills, drafters rely on drafting manuals.

A state legislature's drafting manual can take the form of a bound handbook, a loose leaf notebook, or a CD-Rom. Some drafting manuals are even available on line. Some are enacted as resolutions. Some are internal staff documents. Law Writer edits one drafting manual and collects others.

No matter the form, a legislative drafting manual is generally much more than a checklist on how to write a bill. The drafting manual serves as a detailed guide to the correct form for bills and resolutions. The manual provides information on style and gives "voice" to the laws of a particular jurisdiction. Though legislative drafting manuals are not generally concerned with the particular substance of bills, manuals usually provide information about constitutional issues and limitations. Confidentiality requirements are often discussed as well.

First published in 1955, the Bill Drafting Manual for the Kentucky General Assembly is one of my favorites. Section 101 (Introduction) of the 1996 Edition says: ". . . The quality of the legislative product depends not only upon the substance of laws, but upon their form and style. Inaccurate or careless drafting may produce bad laws, or even invalidate a measure entirely. It is essential to legislators, administrators, courts, and the public that bills and resolutions be written in a clear, correct, and unambiguous style."

Legislative Documents & Their Functions:

Bill: The exclusive means by which a legislature enacts, amend, or repeals a statute.

Resolution: The document used to address internal legislative matters. A resolution that must be passed by both chambers is a joint or concurrent resolution. A resolution that need be passed by only one chamber is a simple resolution.

Floor amendment: An amendment to a bill or resolution offered by a legislator during floor debate.

Committee substitute: A committee substitute for a bill or resolution is a "draft de novo" adopted by a committee for consideration by the chamber in place of the original bill or resolution.

Conference committee report: The conference committee is appointed when the chambers do not agree and matters in disagreement must be settled. A conference committee report is a complete draft of a bill that usually represents a compromise. (If the originating house agrees with changes to a bill made by the other chamber, there is no need for a conference report.)

Noah Webster & His Dictionary - An Exhibit

An Exhibit Commemorating the 250th Anniversary
of Noah Webster’s Birth October 16, 1758
Amherst College Library,
Archives and Special Collections Department
September 4, 2008 through January 4, 2009

Interesting information and photographs are still posted online.

Bust of Noah Webster

by Chauncey Bradley Ives
American (1812-1894)
Bronze 26 ½ in; 67.31 cm
Gift of Theodore Bailey, Jr. in memory of
Richmond Mayo-Smith
(Class of 1909)
Loaned, courtesy of the Amherst College
Mead Art Museum

Link to more information about the Webster Exhibit

An American Dictionary of the English Language… By Noah Webster.
Revised and enlarged by Chauncey A. Goodrich. Springfield, Mass.:
Published by George and Charles Merriam, 1854.

Monday, September 21, 2009

The National Conference of State Legislatures = The Forum For America's Ideas

Recently Released & Recommended:

The single most influential nonpartisan organization that serves state legislators and staffers in the constant improvement of the legislative process is the National Conference of State Legislatures based in Denver, CO. No brag, just fact.

NCSL personnel management gurus Karl Kurtz and Brian Weberg have completed a survey indicating trends in the staffing patterns of legislatures in all 50 states. NCSL did its first count of staff in 1979. Now well into the 2000s, it appears that the number of legislative staff has leveled off after considerable growth in the 1970s and 1980s. The NCSL survey counted the number of staff employees serving currently, and then reviewed how that number has changed over the past 30 years.

Among the key findings:

• Women are well-represented among all staff, except in managerial ranks.

• Staff jobs are dominated by whites, with minorities under-represented.

• A large majority of legislative staff view their work as a long-term career.

• Main concern among staff managers is the impending retirement of long-term staffers.

The link above leads to more information well worth reading. Other interesting findings relate to:

• Differences Among States

• The Partisan Percentage

• Staffing as a Career

• Staff Concerns

• Future Uncertainties

Friday, September 18, 2009

A Birthday and Constitution Day Tribute to Samuel Johnson

You may have gathered that the Law Writer values history and context as part of the craft. And, will take any opportunity to add historical notes to the process of drafting law. Yesterday was Constitution Day, so the Law Writer will use that excuse, and the gentleman's 300th birthday, to pay homage to  Samuel Johnson, the English author, critic, and lexicographer (1709 - 1784).

Dr. Johnson took nine years to produce his Dictionary of the English Language published in 1755 -- the most commonly used text of its kind for 150 years until the publication of the Oxford English Dictionary in 1928. Dr. Johnson's work had a major impact on Modern English and is widely considered one of the greatest single achievements of scholarship. Particularly important to the Law Writer is the fact that Dr. Johnson's esteemed work influenced the framers of the U. S. Constitution as his was the dictionary of the Revolutionary Era.

The Law Writer must confess that complete appreciation for Dr. Johnson's significance was somewhat lacking when the Law Writer was required to read James Boswell's Life of Samuel Johnson during undergraduate studies at UNC-Chapel Hill. Now, many years later and after acquiring more seasoned biographical reading tastes, the Law Writer has placed Boswell's masterpiece on the short range reading list.

Happy 300th Birthday to Dr. Samuel Johnson &
A Belated Happy 222nd Birthday to the Constitution
of the United States of America.

"Knowledge is of two kinds. We know a subject ourselves, or we know where we can find information on it". Samuel Johnson. 

Recommended Reading: NYT Op-Ed on "Dr. Johnson's Revolution" by Jack Lynch, the editor of Samuel Johnson's Dictionary: Selections from the 1755 Work That Defined the English Language.

[Note: Another important dictionary in American history -- Noah Webster's 1828 American Dictionary of the English Language.]

Tuesday, September 15, 2009

New York Law Bans Use of ‘Oriental’ in State Documents

On September 8, 2009, New York Governor David A. Paterson signed legislation to ban the use of the term “Oriental” in reference to persons of Asian or Pacific Islander descent on all “forms or preprinted documents used by state government, public authorities or municipalities.” The redactions are required by no later than Jan. 1.

Governor Paterson said in a statement: "The words we use matter. We in government recognize that what we print in official documents or forms sets an example of what is acceptable. With this legislation, we take action against derogatory speech and set a new standard. The word ‘oriental’ does not describe ethnic origin, background or even race; in fact, it has deep and demeaning historical roots. I am pleased to sign this legislation and remove the phrase from preprinted forms and documents."

Thursday, September 10, 2009

The Magic of Law Writing

The Law Writer takes raw materials (consisting of the ideas of others), then applies law writing skills to materialize that idea into law. Sometimes, the process is almost magical.

The first audience for a piece of law writing is the bill sponsor. If the Law Writer's draft bill is satisfactory to the sponsoring lawmaker, the next audience is the legislature. If the legislature approves the bill, and the governor does not veto it (if applicable), then the bill becomes law.

The audience for the enacted law includes the people (the most important audience), the executive branch (which must execute the law) and the judicial branch (which must interpret the law, if necessary.)

Thus, the Law Writer's constant aim is to write statutes so that the words and directives in the law have plain and straightforward meanings, giving the law clarity and effect.

The Law Writer is always aware that statutory interpretation begins with the text. As explained by Justice Corrigan of the Michigan Supreme Court: ". . . when the words of a statute are unambiguous, the task [of interpretation] should end there -- if the legislature has clearly spoken, nothing is left to construe."
{Quote with emphasis included from: Maura D. Corrigan & J. Michael Thomas, "Dice Loading" Rules of Statutory Interpretation, NYU Annual Survey of American Law 2003, Vol. 59:231, 233.}

Chapter 120 of the North Carolina General Statutes defines the requirements surrounding coded bill drafting, which is the official formatting scheme of underlinings and strike-throughs used in the NCGA electronic bill drafting/information system to create, repeal, or modify laws in North Carolina. Chapter 12 of the General Statutes covers statutory construction, working in combination with common law and case law.

Friday, September 4, 2009

The "Supreme Expression"

Law. That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other . . . Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. . . That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law. . .Law is a solemn expression of the will of the supreme power of the State. (From Black's Law Dictionary, Sixth Edition, 1996)

Statute, n. A law passed by the legislature of a state; an enactment; a fundamental or permanent rule of law. (From Webster's Popular Illustrated Dictionary, 1937)

bill, 6 : a draft of a law presented to a legislature for enactment; also : the law itself . . .(From Merriam Webster's Collegiate Dictionary, Tenth Edition, 1996)

The law is what it is. And, legislative drafting is serious business. The legislative drafter needs a firm foundation in Constitutional Law, should be well versed in all aspects of the Separation of Powers doctrine, and must never think that he or she knows everything. Fortunately, I have learned from some of the very best including:

  • John V. Orth, William Rand Kenan Jr. Professor of Law at UNC Law School. Professor Orth taught eloquently from Lawrence M. Friedman's classic History of American Law and from his own scholarly articles. I recommend two of Professor Orth's books -- Due Process of Law: A Brief History (University of Kansas Press, 2003) and The Judicial Power of the United States: The Eleventh Amendment in American History. (Oxford University Press, 1991).  
  • Daniel Pollitt, now an emeritus professor of law at UNC Law. After World War II, Professor Pollitt was an associate of Joseph Rauh. He was the kind of teacher who frequently left the classroom to practice real law in real time by defending capital cases, representing poor people, and taking on free speech and civil liberties cases. While I was in law school, he would spend the summers as a special counsel to the U.S. House of Representatives Committee on Education and Labor.
  • Gerry F. Cohen, a Morehead Fellow while at UNC Law School, and currently the Director of the Legislative Drafting Division of the NCGA Legislative Services Office. That would be my boss. North Carolina has a non-partisan central professional staff that serves both the State Senate and the House of Representatives, and the majority and minority parties. Gerry is known in NC legal and political circles as "Constitutional Cohen" -- really. 
  • Mother Wit.  A master teacher.

Wednesday, September 2, 2009

The Basics of Writing Statutes Continued

A few trustworthy dictionaries and a killer legal thesaurus are just as important as the right style and grammar resources from the individual legislative drafters' point of view, but far more important to the lawyers, judges, police officers, felons, law abiding citizens, etc., who will rely upon, or be affected by, the law every day of their lives and even into the grave. [More about long, silly sentences later.]

All that being said, I have these dictionaries in my office:

  • Black's Law Dictionary, 6th Edition (1990) -- Speaks for itself.
  • Merriam Webster's Collegiate Dictionary, 10th Edition (1996) -- Newest not required.
  • Websters Popular Illustrated Dictionary (1937) -- Old defintions can come in handy. I like the pictures, too.
My thesaureses of choice are:
  • Burton's Legal Thesaurus, 3rd Edition (1999) -- Simply fabulous.
  • Roget's II The New Thesaurus (1980) -- Same old, same old, but the old reliable.
Time is money, so I need not tell you why these books are helpful since you already know that. I will have a lot more to say about them, however, when I opine later about statutory construction.