Wednesday, April 23, 2014
We are excited to have David Marcello as today’s guest blogger to highlight his article on Plain Language titled “Teaching Plain Language Drafting in a Legislative and Administrative Advocacy Clinic,” recently published in Clarity. David is the executive director of The Public Law Center, where he runs the Legislative and Administrative Advocacy Clinics and teaches courses on legislation and agency rulemaking. He has taught legislative drafting in Bulgaria, the Dominican Republic, the Republic of Georgia, Moldova, Mongolia, the Netherlands, Nigeria, and South Africa. Prior to the Public Law Center, David was the coordinator for the first statewide environmental lobby in Louisiana; he founded and directed Louisiana’s first public-interest law firm; and he served as executive counsel to New Orleans Mayor Ernest N. “Dutch” Morial. In 1994-95, he chaired the 40-member Charter Revision Advisory Committee, which was responsible for the first comprehensive revision of New Orleans’ Home Rule Charter in the 40 years. He documented some of the charter changes in "Systemic Ethics Reform" for the Brookings publication Resilience and Opportunity. David was also general counsel to the Regional Transit Authority for seven years, where he handled the RTA's buyout of the formerly private transit system and advised the RTA on its successful campaign for taxing authority. He secured legislation allowing the 1984 World’s Fair to transfer property to the Rouse Corporation for the $60 million Riverwalk development on New Orleans’ riverfront. He later represented Rouse in obtaining an exemption from Sunday-closing laws for Riverwalk. He has also worked as a staff attorney for New Orleans Legal Assistance Corporation; a legal consultant for an urban planning firm; and counsel for several neighborhood associations.
I wrote this article (hyperlinked in the title above) with one simple goal—to tell how we teach legislative drafting to second and third-year students at Tulane Law School. A later reading revealed, however, the extent to which this article also refutes a frequent, facile, and flawed assumption—that plain language drafting is utterly reducible to suggestions about writing style.
That’s just wrong. Plain language drafting is about far more than “style.” Consider multiple meaningful ways in which plain language drafting impacts the substance of what we write.
First, clear thinking usually precedes plain language drafting; you can't competently express what you don't first comfortably comprehend. Plain language drafting demands that drafters dig deeper to understand what they're trying to express so simply. Clear ("plain") thinking and plain language drafting coexist in a symbiotic relationship, where each informs the other.
Plain language drafting facilitates policy development. The article quotes Martineau: "Only in the drafting is the proponent’s intent developed.” It cites Dickerson’s wisdom that drafters who listen to "talk back" from the text see where they’re headed by looking back at what they’ve written.
Plain language drafting addresses "structure." I’ve read that Laurence Tribe struggled mightily with his constitutional law treatise and even considered abandoning the project until his great breakthrough, when he finally produced—a satisfactory outline!
Good organization, good understanding, and good expression are all integral to plain language drafting, which is not just about "style." It's also about "substance" and "structure.”
I look forward to learning what others think about the article and these propositions I’ve presented as an introduction.