Tuesday, February 16, 2010

The Good, the Bad, and the Wordy, Part I

The venerable legislative drafting manual is the law writer's guide. The drafting manual helps one to stay on target and to resist being corralled onto poor word choices. Though the particulars of these manuals may vary, one common feature is a list of words and phrases to use, and words and phrases to avoid using, in the drafting of bills. Here are some of my personal favorites.

Good                                                       Bad

a, an                                                       any, every

a, an, the                                                such, said

comply                                                   in compliance with

if                                                             provided that

to                                                            in order to, for the purpose of

with                                                        in conjunction with

without                                                   in the absence of

about, for, over                                    with respect to

apply                                                   submit or make an application for

assess                                                 perform an assessment of

later                                                      at a later date

notify                                                    send notification of

survey                                                 conduct a survey of

investigate                                          conduct an investigation of

 select                                                  make a selection

review                                                 conduct a review of

except                                                 with the exception of

explain                                                provide an explanation of

exceeding                                          in excess of

inspect                                               perform an investigation of

Common "circumlocutions" comprise a special subset of bad words. Special because lawyers seem to love them the most.


bind and obligate
by and between
by and with
cease and desist
covenant and agree
due and owing
relieve and discharge
each and every
for and during
full and complete
furnish and supply
kind and nature
over and above
power and authority
suffer or permit


shall and will
sole and exclusive
true and correct
then and in any event
unless and until
type and kind
supercede and displace
adopt, promulgate, and enforce

Thursday, February 11, 2010

Savoring the Conference Process

Needless to say, the legislative process can be a complex sight to behold. The ongoing ruckus over Congress' handling of the Obama health care package provides the perfect context for a discussion of my favorite part of the legislative process – the maze known as conference. By definition, conference happens after the two chambers in a bicameral legislature each pass a bill that is in conflict with the other and the differing bills must be reconciled before joint passage of a "conference" report. Put another way, conference is where the tastiest sausage is made.

Here is how it works. One chamber requests a conference or agrees to the other chamber's request for a conference. Conferees are appointed and the other house is informed of the action by a "message" -- a formal communication between the chambers. After the second chamber agrees to go to conference, it appoints conferees and likewise sends a message back. Either chamber may appoint any number of conferees. No matter the number, the conferees must act as one.

Next come the dicing and slicing of deliberations, with review by the conferees of the differences between the respective bills. The scope of the "matters" in conference is the crux of the matter (pun intended). Germaneness becomes a key question. Conferees are supposed to attend to only the matters in the legislation that are in disagreement. Conferees are not supposed to insert new matters or drop matters in agreement. A parliamentary point of order may lie against the conference report if conferees overstep their authority by going too far beyond reconciling the differences. In the real world sausage making process, however, conferees have some latitude towards the end that the entire controversy may be successfully resolved to the satisfaction of both chambers.

Conferees confronted with an amendment (or a series of amendments) are under more procedural constraints than conferees handling a bill passed by the other chamber via a committee substitute. If the differences are in the form of conflicting amendments (rather than conflicting committee substitutes), the conferees may recommend that (i) one chamber recede from all or some of its amendments, (ii) the other chamber recede from its disagreement to all or some of the amendments and agree; or, (iii)  the conference committee report a failure to agree either in all or in part.

In the end, if the conferees reach an agreement on the disputed subject, the conference committee reports to each house and the two houses vote on the text of the recommended agreement. If either house rejects the conference committee's recommendation, new members to the conference committee may be appointed to try again, otherwise, the bill is dead. Long live the conference process.