Thinking through the policy

Drafts can be failures for two reasons: Some are failures of communication, while others are failures of imagination.

When there is a failure to communicate, the draft is not clear. The problem is on the page and evident to the naked eye. The Guidelines will help you communicate: they have techniques to make a draft simple, plain, brief, consistent, and readable. These are necessary and important goals, but they are the easy goals to achieve.

When there is a failure to imagine, the problem is not on the page. The words look fine, but the thinking behind them is less than thorough. A failure to imagine cannot be cured by using the right word; it can be cured only by thinking through the policy.

To think through the policy, you must engage the lawmaker with questions. You must figure out the problem and the objective. You must map out the entire landscape of the policy, all the details, large and small. You must research the law, analyse the alternatives, and create a coherent solution. Finally, you must conduct a reality check.

Before you do any of that, however, you must adopt a posture of skepticism. You must be able to develop tough questions and be willing to ask them. The questions do not come from looking at words on a page; they come from taking everything with a grain of salt. Information may be wrong; assumptions may not hold; facts may shift; laws may overlap; people may disobey.

The lawmaker comes to you with a prejudged sense of what needs to be done. Do not take that sense at face value: Respect it, but do not accept it. Lawmakers do not always think through the policy and, when they do, they do not always do it thoroughly. In many cases the lawmaker simply starts with the recommendations of a third party. The recommendations may be sound, they may be unsound, or they may be misleading. What the lawmaker needs most from you is critical thinking and independent, frank advice. Do not surrender your judgment.

Be skeptical. Question assumptions. Imagine scenarios that might unfold and discuss them. In many cases the lawmaker will have a firm sense of how a scenario should be handled. Above all, use good judgment to decide when you have done enough. At some point you are not adding value so much as splitting hairs.

You have to pick your battles. Sometimes you don’t have time; sometimes the lawmaker doesn’t have patience. But you have a duty not to be a “yes man” or a scrivener.

Of all the steps in thinking through the policy, the "reality check" is the most important. Always consider whether the policy can be given practical and legal effect. A policy that sounds good but doesn’t work can embarrass the lawmaker and cause problems down the road.

A law may be legally sufficient but nonetheless be ineffective as a practical matter: the law may be difficult to administer or enforce, or it may not adequately cover all contingencies, or it may not provide enough incentives to ensure people conform. In short, it may not fit reality. This is not a question of whether it is a good idea or a bad idea, but whether it is a well-formed idea.

There is no easy process for figuring out if a policy is workable. You need to hold a brainstorming session. Ponder the policy from as many angles as you can. If you had to administer it, does it provide enough guidance? If you had to comply with it, can you tell what is, and is not, allowed?

In the ordinary case, does everything seem to work? Does it do what is needed? Does it refrain from doing anything else? Does it lead to any absurd results? What sort of effect will it have on institutions, people and society? Does it rely on assumptions that may not be valid now, or may not hold in the future?

And so much for the ordinary case. Does it still work adequately in an extraordinary, but possible, case? Imagine people and events and contingencies that might cause problems. Find out if the policy still works; find out where the gaps, the uncertainties, and the contradictions are.

Laws that are not thought through properly generate enormous social and economic costs. They also take a toll on the political system and the judicial system. Drafters are the first line of defense against these costs and tolls: their work is to make sure each new law has had as much scrutiny as possible. Though each statute is born new, it should work as if seasoned and old.

As you think through the policy, bear in mind that the main purpose of almost every law is to regulate the conduct of people--that is, to specify what is prohibited, what is allowed, and what is required. With every drafting project, you must, at a minimum, identify what is prohibited, what is allowed, and what is required.

One very common problem with laws is a failure to answer the question, "who does what?" Such a law is not directed at people: "there shall be a chicken in every pot"; "dogs are not allowed on the grass"; "a school bus must stop at a railroad crossing". The lawmaker should be asked to identify the people--officials? dog owners? bus drivers?--who are to be held accountable.

Another very common problem with laws is a failure to answer the question, "so what?". Such a law covers some sort of behaviour but does not specify what the incentives or consequences are: "the Director shall submit a report"; "a person may not walk on the grass". The lawmaker should be asked to identify what happens if there is a violation, criminal punishment? civil liability? a forfeiture of some right or privilege? The "nonanswer" is common: the lawmaker wants to let the courts decide, or wants the law to be aspirational only. It is always better to obtain a "nonanswer" than to not ask at all.