It is no secret that “[b]ad law breeds unnecessarily hard cases.” In the international context, poor drafting or errant amendments to domestic legislation can result in ‘bad law’ that may impact interpretations of international treaty parameters or ineffectively accomplish waivers of sovereign immunity. The aim, then, is to affect the drafting of favorable law from the start.
Recent attention from the U.S. Supreme Court to manuals published by congressional legislative counsel as potential colors in the palette of statutory interpretation reveals the impact that even drafting style can have on legal interests. While legislative counsel generally provides ultimate input on the exact style of draft legislation introduced in Congress, the current climate suggests that those who continue to hold to the old maxim that laws are like sausages—it’s best not to see them being made—are missing out.
Domestic legislative drafting appears to increasingly result from a collaborative process amongst stakeholders, their counsel, and lawmakers and their counsel. Political advocacy group Freedom Watch, Inc., has even sued in federal court to determine just how much of the Patient Protection and Affordable Care Act was drafted in collaboration with interested parties.
No matter who the drafter is, the first step is the same: discern the objective. Thus, it is important at this stage that a client clearly state the goal for a piece of proposed legislation. In the international context, a client must emphasize legal theories that must be legislatively approved. A clear example of this is a waiver of sovereign immunity.
Sovereign immunity is the concept that the federal government is immune from suit without its express permission. The U.S. Supreme Court has noted that “a waiver of sovereign immunity is to be strictly construed, in terms of its scope . . . [and must be] ‘unequivocally expressed’ in a statutory text.” In the legal context, these rules are known as ‘clear statement rules.’ Such rules are intended to enhance the predictability of statutory interpretation and trim the cost involved in legislative drafting. The importance of these rules cannot be understated, as courts require that the statute’s language be clear for a waiver of federal sovereign immunity to be effective. Clear statement rules should be considered in any legislative drafting effort that seeks a waiver of governmental immunity.
Additionally, congressional counsel and the vast majority of states, have published bill drafting manuals that provide a framework for legislative drafting. These manuals provide guidelines on style and mechanics to drafters to ensure laws are consistent in tone and appearance.
As noted above, the importance of drafting manuals in the interpretation of statues seems to be growing. Prior to 2010, the U.S. Supreme Court had only acknowledged such manuals once. While these manuals generally focus on style, rather than content, the Court’s increased attention reflects that style often informs the interpretation of substance.
Those with international interests who may require protection or enhancement via domestic legislation should recognize the importance of familiarity with the above processes. Where appropriate, knowledgeable counsel experienced with the style mandated by such manuals can assist in developing draft legislation to properly affect waivers and protect international transactions or interests at all legislative levels.
Nicole Burgmeier, a Summer Associate, co-authored this article.