American Judges Association
Date of this Version
This will not be the first or last article that criticizes the style of drafting in federal statutes. But it will, I believe, be different in at least one respect: it will scrutinize the style in just one small slice of federal drafting in a way that should edify drafters of any legal document. In fact, this inspection should open the eyes of all legal writers—for I’ll identify some of the persistent, inexcusable failings that pervade all legal writing. I did this kind of thing once before in Court Review, using the final orders from the Clinton impeachment trial. If you think those impeachment orders were revealing, wait until you see the USA Patriot Act. It’s amazing, really, how much you can wring out of a few paragraphs. And I’m not talking about subtle or arguable points; I’m talking about the kinds of changes that good stylists or editors would make almost routinely. At the same time, none of the items that I list below are what you would call major. None of them go to the unfriendly format of federal statutes or their overdivided structure. Nor do I get into organization or degree of detail. Nor do I raise the standard complaint about serpentine sentences full of embedded clauses, or even mention the passive voice. Individually, my changes may seem small, but taken as a whole, their effect is considerable. And so it is with writing: clarity does not come in one or two strokes, but through the cumulative effect of many improvements, some of them larger and some smaller. How did our profession ever arrive at this state of linguistic distress? Apparently, 400 years’ worth of legalese has left us blind. We are so used to it that we can’t see it for what it is, or can’t muster the will to resist, or don’t care. The great irony is that most lawyers seem to consider themselves quite proficient at writing and drafting. They are deluded. But as Reed Dickerson, the father of American drafting, observed, “It is hard to sell people new clothes if they consider themselves already well accoutered.” Of course, we all realize that legislative drafters work under pressure, that very often or perhaps most often they do not have a free hand, that the process is messy and variable, and that some drafters are no doubt skilled and experienced. Yet they are still heirs to “a history of wretched writing.” So it’s not surprising that the habits I criticize have seemingly become ingrained. At any rate, let me say a word about the paragraphs I’ll use from the Patriot Act. I didn’t scour the Act for the worst examples. I didn’t scour the Act at all. These paragraphs came to my attention because they affect the Federal Rules of Criminal Procedure, which I have an interest in. For the last three years, the Advisory Committee on Criminal Rules has been restyling all the criminal rules—a huge undertaking—and I served as a consultant during the last part of the project. The restyled criminal rules were submitted to the Supreme Court last November. At about the same time, Congress passed the Patriot Act, and the advisory committee had to scramble to insert conforming language into the new version of the rules. The Act amended Rules 6(e)(3)(C) and 41(a) of the old rules; the committee inserted the changes into 6(e)(3)(D) and 41(b)(3) of the new rules. I’m going to deal only with the Rule 6 changes because the Rule 41 changes were much shorter. Now, the committee decided that it had to use the statutory language in the court rules—an understandable decision but a serious setback for good drafting. It’s disheartening, after the long effort to improve the rules’ clarity and consistency, to see that statutory language imported almost verbatim. And here it is, in all its glory.
Published in Court Review: The Journal of the American Judges Association, 39:1 (2002), pp. 44-47. Copyright © 2002 National Center for State Courts. Used by permission. Online at http://aja.ncsc.dni.us/htdocs/publications.htm.