Part I

Drafting Statutes

Writing in any form necessarily involves active communication between the writer and the reader, since both of these parties together are necessary to actually create meaning for any given writing. The process of writing statutes (and often the regulations that interpret and apply those statutes) in some respects is no different than any other forms of writing: specific words have specific meaning(s) and the particular manner in which any chosen words are combined into sentences also conveys very specific meaning. However, in many respects statutory drafting is quite unique.

Although it might be said that in general statutes are written to reflect the collective will of those governed, in reality most legislation is actually written primarily to very specific audiences, and not the public at large. Included among these intended audiences are individual constituent groups for whose benefit a particular statute was enacted; lobbyists and their clients who may (or may not) have been successful in persuading legislators to include certain desired language or provisions in the statute; future generations of citizens who may encounter the statute in an entirely new or even unanticipated political, economic, cultural or technological environment; and, ultimatetly (and perhaps most importantly), the courts who will be called upon to "construe" meaning from the very words contained within the statute itself. Because of these quite specific but often diverse groups of statute readers, the drafters of most legislation often face potential problems in communicating their intention(s) that are entirely unique to this very specialized form of written communication.

"The Secretary shall develop and implement plans (hereinafter in this subsection referred to as ‘‘recovery plans’’) for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. ...." (emphasis supplied).

Does this statutory language impose an absolute duty on the Secretary to develop and implement recovery plans for all "listed" species under the Act, or does it merely authorize the Secretary to do so?

At first glance, the answer to this question appears quite simple. The use of the word "shall" in this particular section of the Act indicates that Congress intended to impose a mandatory duty on the Secretary to develop and implement recovery plans for all "listed" species. Had Congress intended merely to give the Secretary the right (or privilege) to develop such recovery plans, without making it mandatory to do so, Congress would have used the word "may" instead of the word "shall."

But this apparently mandatory duty is then qualified within the same sentence by a phrase introduced with the word "unless."

What, if anything, does this additional limitation do to the Secretary's original (i.e., mandatory) duty? Does it in effect give the Secretary discretion to determine whether or not to develop and implement a recovery plan? In other words, can the Secretary avoid the statutorily mandated duty to develop and implement a recovery plan simply by "finding" that such a plan will not promote the conservation of the species (for whatever reason)?

Suddenly, the answer to the original question no longer seems so clear. Moreover, new questions now also arise. Did Congress actually intend to empower the Secretary to avoid this clearly-specified duty by adding the "unless" clause, and, if so, why, and under what circumstances? Or, was the inclusion of the "unless" clause in this same sentence merely the result of some less-than-artful drafting?

The Act doesn't really answer this new question at all. Ultimately, the courts may have to decide what this particular statutory phrase means. If so, the final determination as to the purpose and meaning of this statute will rest in the hands of the courts and not Congress. Judges, and not the directly elected representatives of the governed, will "construe" this language of the Act according to various judicial doctrines of statutory construction which may, or may not produce the same interpretation that Congress actually intended. [These issues are addressed in Part II of this Lesson.] Could this entire inquiry have been avoided by a more carfeully drafted statute?

Most legislative bodies have developed specific rules for drafting statutory language. These rules take into account many of the common ways that statutes are likely to be misread, and provide structure and consistency for the drafting of statutes. Some rules even take into account the most common ways that courts are likely to construe the meaning of particular statutory words. Thus, by carefully drafting a statute within the parameters of these "rules," legislators can minimize many unintended interpretations and applications of their words. Of course, not all statutory interpretation problems are caused by bad drafting. Sometimes, particular statutory language is merely the unintended result (although a necessary reality) of political compromise rather than any intentional purpose. The drafter must also be aware of all these potential obstacles to the intended purpose and effect of the legislation.

Before proceeding to Part II of this Lesson, let's take a closer look at a few more issues related to statutory drafting.

Click HERE when you are ready to proceed with these questions.