LEGISLATIVE DRAFTING EXERCISES
Design Decisions
and Experiential Experiments
Duquesne Law – 2016.12.03
Dakota S. RudesillAssistant Professor, Moritz College of Law @DakotaRudesill
Teaching Legislative Drafting Enables Learning About:
• Drafting a (any) Legal Document
• Words are powerful
• Law, Process, Policy, Political, and Personality (LP4) factors interact
• Legislative Process
• Legislative Process knowledge needed to understand Legislative History
needed to know Statutory Interpretation needed to know how to lawyer in a
“Republic of Statutes”
• Legislative Work = Legal Work … Legislation = Law
• Statutes come from legal process
• Legislation written by lawyers, and non-lawyers
• Professionalism
• Role assumption and skill deployment by lawyer
How Teach Legislative Drafting?
• Reading + Class Session
• Readings incl. TOBIAS A. DORSEY, LEGISLATIVE DRAFTER’S HANDBOOK (2006)
• Drafter thinks through: policy preferences (what and how); actor/action/direct
object; legal authority to act vs. legal process for decision and implementation;
implementation mechanism (enforcement/incentives/penalties)
• In-Role Exercise: Learning-by-Doing = Pedagogical Best Practice
• …esp. for writing, process, and practice skills
• Feedback and Evaluation
• Reflection – in class / essays
Why Should I Teach Legislative Drafting?
• I did it: U.S. Senate, 1995-2003
• I reviewed it: Obama Transition & U.S. Intelligence
Community, 2008-10
• I have taught it in clinics, classrooms, and CLE: Georgetown
Law 2010-13, Ohio State 2013-present, CLE 2016-present
• Students and I find it to be fun and valuable!
In What Settings Can One Teach Legislative Drafting?
• Two intuitive approaches: via classroom exercise, or via
simulation of legislative drafting under practice conditions
• These are merely poles in a broad spectrum, however…and
there are many key elements and trade-offs
• A variety of ways to structure legislative drafting experiential
education exercises are available to legal educators,
stemming from pedagogical goals, resources, and other
factors and design decisions.
Three Case Studies for Teaching Legislative Drafting
Discussed in depth in a forthcoming pedagogical law review WIP
… and more briefly in this already-published piece:
Dakota S. Rudesill, Christopher J. Walker & Daniel P. Tokaji, A
Program in Legislation, 65 J. LEGAL ED. 70 (2015),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2509477
Three Case Studies for Teaching Legislative Drafting
1. Large Lecture Class In-Class Exercise
• 60-70 1Ls in mandatory Legislation/Regulation course
• Single class session: after readings/lecture, students draft example
statute on (apparently!) simple problem, such as “no vehicles in the
park” or timber management
• Break students into groups on different puzzle pieces:
• Purposes
• Actor / Actions / Direct Object
• Implementation:
Means / Incentives / Penalties
• Reflection
Three Case Studies for Teaching Legislative Drafting
2. Clinic In-Class Simulation
• Georgetown Federal Legislation & Administrative Clinic, and Ohio
State (state) Legislation Clinic – 5-12 students do 2 class session
sim at committee level with students as Members, doing drafting
• After reading and class discussion, students dive into roles
• Reflection
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
2016 participants…about 1/3 of us!
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• At Georgetown & Ohio State I have designed and run large (100+
participant) national security simulations with major leg. component
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• At Georgetown & Ohio State I have designed and run large (100+
participant) national security simulations with major leg. component
• Run in real time over two days, full time
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• At Georgetown & Ohio State I have designed and run large (100+
participant) national security simulations with major leg. component
• Run in real time over two days, full time
• Roles for students: Members (Georgetown) and staff (Ohio State)
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• At Georgetown & Ohio State I have designed and run large (100+
participant) national security simulations with major leg. component
• Run in real time over two days, full time
• Roles for students: Members (Georgetown) and staff (Ohio State)
• Students draft and pass 1+ bills and also do oversight, etc.
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• At Georgetown & Ohio State I have designed and run large (100+
participant) national security simulations with major leg. component
• Run in real time over two days, full time
• Roles for students: Members (Georgetown) and staff (Ohio State)
• Students draft and pass 1+ bills and also do oversight, etc.
• Have had 1 level of process only (committee), and also 2 levels
(committees plus full Senate)
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• At Georgetown & Ohio State I have designed and run large (100+
participant) national security simulations with major leg. component
• Run in real time over two days, full time
• Roles for students: Members (Georgetown) and staff (Ohio State)
• Students draft and pass 1+ bills and also do oversight, etc.
• Have had 1 level of process only (committee), and also 2 levels
(committees plus full Senate)
• Rest of sim participants provide legislation’s context: Executive &
Judicial Branches, State & Local Govt, Press, rest-of-world
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• Georgetown: legislation clinic students were a Senate committee
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• Georgetown: legislation clinic students were a Senate committee
• Ohio State: same, and also a second committee with retired
federal and state legislators as Members and JD students as
lawyers, Security & Intelligence students as policy advisors, and
Communications students as press secretaries
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
Majority (D)
SEN. KENT CONRAD (D-ND), Majority Leader
• Andy Hopkins, Counsel
• Syd Kiel, Nat. Sec. & Intel. Advisor
• Gabriella Delanois, Press Secretary
SEN. ZACH SPACE (D-WA), Chairman, Nat. Sec. Cmte.
• Lee Matheson, Counsel
• Cassandra Dula, Nat. Sec. & Intel Advisor
SEN. BILL POHLMAN (I-ID)
• Christopher Ballard, Counsel
• Cameron Maxwell, Nat. Sec. & Intel Advisor
Sen. Sally Hueker (D-ME), Chair, Approps. Cmte.
• STEVE HUEFNER, COUNSEL
• Nicole Haddad, Nat. Sec. Advisor
Sen. Sara Leigh (D-OR)
Sen. Daniel Bowen (D-CA)
Minority (R)
SEN. MARK WAGONER (R-WA), Minority Leader
• Will Larrick, Counsel
• Tim Brandes, Nat. Sec. & Intel. Advisor
• Lauraine Abbey, Press Secretary
SEN. CAPRI CAFARO (R-ME), Ranking Member, Nat. Sec. Cmte.
• Holly Lovey, Counsel
• Kelly Furterer, Nat. Sec. & Intel. Advisor
SEN. SHAUN LYONS (R-VA)
• Trenton Weaver, Counsel
• Alex Lebowitz, Nat. Sec. & Intel. Advisor
SEN. BRIAN PERERA (R-ID)
• Meagan VanBrocklin (Day 1) & James Mee (Day 2), Counsel
• Patrick Shelley, Nat. Sec. & Intel. Advisor
Sen. Ryan Agee (R-MT), Ranking Member, Approps. Committee
• TERRI ENNS, COUNSEL
• Renee Concha, Nat. Sec. Advisor
Sen. Jhanelle Harrison (R-MS)
SENATE VPOTUS / Senate President YA’ARA BARNOON
James Mackey, Counsel to the VP
TAYLOR KLINE, Parliamentarian
SMALL CAPS = PRACTITIONER NPC
Bold = Principal
Regular type = Student
Italics = staff
Khaki highlight = Nat. Sec. Cmte.
Green highlight = Approps. Cmte.
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
http://moritzlaw.osu.edu/briefing-room/national-security-
simulation/
Three Case Studies for Teaching Legislative Drafting
3. Immersive, Large, All-Day Multi-Day Simulation
• Georgetown: legislation clinic students were a Senate committee
• Ohio State: same, and also a second committee with retired
federal and state legislators as Members and JD students as
lawyers, Security & Intelligence students as policy advisors, and
Communications students as press secretaries
• Ohio State: part of a larger role-assumption focused simulation,
involving cross-disciplinary work by law, policy, intelligence,
military, and media OSU students, plus big personalities in top
roles (President, VP, Senators, newspaper editors, generals)
National Security Simulation
• Control Team uses injects: media, intel, personal contact with practitioners to
drive players toward interesting issues, dilemmas, and decisions…but player
decisions matter
National Security Simulation
• Interacting Processes:
• Legislative Process – statutes, appropriations, nominations, oversight
National Security Simulation
• Interacting Processes:
• National Security Council (NSC) & Homeland Security Council (HSC)
Interagency Executive Branch Processes
National Security Simulation
• Interacting Processes:
• Judicial review of cases, programs, and warrants
National Security Simulation
• Interacting Processes:
• Interaction of policy, legal, intel, military, and media professionals
National Security Simulation
• Interacting Processes:
• Intelligence Cycle: priority setting, collection, analysis & dissemination
(info sharing), consumer action or feedback
• Federalism: interaction of federal, state, and local government
National Security Simulation
• Interacting Processes:
• Legislative Process – statutes, appropriations, nominations, oversight
• National Security Council (NSC) & Homeland Security Council (HSC)
Interagency Executive Branch Processes
• Judicial review of cases, programs, and warrants
• Internal agency processes
• Interaction of policy, legal, intel, military, and media professionals
• Intelligence Cycle
• Federalism
• Media cycle
Legislative Drafting Exercise Design Decisions
Pedagogical Goals
Realism
Resources and Constraints
Roles
Student Performance Assessment
Legislative Drafting Exercise Design Decisions
Pedagogical Goals
• Learning Objectives – skills, process, and/or substance?
• Nature of the Course – year in law school (1L vs. upper level), course goals, size
of class, time/credits
• Drafting Exercise – what are they drafting?
• Legislative Process Setting – fed/state/local/international level legislature?
Committee vs. full chamber? Or, is drafting happening inside an agency, or at an
advocacy organization?
Legislative Drafting Exercise Design Decisions
Realism
• Realism…and Immersiveness and Scale – trade-off: realism vs. issue focus
• Substantive Scope / Assignment – how much to stipulate?
• Closed or Open Universe – trade-off: realism and all-knowledge testing vs. focus
• Instructor Control – trade-off: student agency vs. focus
Legislative Drafting Exercise Design Decisions
Resources and Constraints
• People & Their Time – can be minimal or HUGE time investment
• Time Availability: Students
• Time Availability: Faculty
• Time Availability: Staff & Other Support (esp. tech!)
• Money
• Stuff – tech, etc.
• Facilities
Press Briefing Room & Offices
White House: Oval Office
White House: West Wing (NSC & Vice President)
White House: Situation Room Executive Branch:• Justice Dept. & FBI• Defense Dept.
Hearing / Meeting Room A (Cartoon)
Executive Branch:• Homeland Security Dept.• State Dept.
White House: Reception Area
THE OHIO STATE NATIONAL SECURITY SIMULATION
Ohio Union, 3rd Floor• Executive Branch• Hearing / Meeting Rooms• Press Briefing Room• Law Firm
Law Firm
Quiet Space for Reflection (open to public)
Hearing / Meeting Room B (Tootle)
[secret back stair]
Senate Republican Offices
Senate Chamber(Saturday Luncheon)
Senate Democratic Offices
THE OHIO STATE NATIONAL SECURITY SIMULATION
Ohio Union, 2nd Floor• Legislative Branch• JUDICIAL BRANCH
• State & Local Government
• CONTROL ROOM• Registration • Breakfast both days,
luncheon Saturday
CONTROL ROOM:NO STUDENT PLAYER ACCESS
Catering – breakfast both days, lunch Saturday
State and Local Government
JUDICIAL CHAMBERS / COURTROOM
Registration – get your lanyards & name tags here
[secret back stair]
Legislative Drafting Exercise Design Decisions
Roles
• Students: all in identical or in different roles?
• Students: just JD or other disciplines too?
• Practitioners: involve them?
• Instructor in the arena playing, or behind the scenes on the Control Team, or
observing as evaluator? Or combo?
Legislative Drafting Exercise Design Decisions
Student Performance Assessment
• Methods of Capturing Student Performance
• Evaluation and Feedback – formative and summative, or just summative?
• Criteria
National Security Simulation: Eval Criteria
1. Role assumption
2. Spotting, appraising, and using the key facts, law, & processes
• LP4: Law, Process (formal & informal), Policy, Politics, Personalities
3. Developing and appraising options
4. Making decisions
5. Advising principals/clients, and colleagues
6. Advocacy & collaboration
• Both representing (and ID-ing) one’s principal/client, and working as a team
7. Communicating effectively and contextually
• Choice of format (oral/written), and simultaneous precision and concision (in tension!)
8. Professional responsibility, judgment, & independence under pressure
• Clients often try to mislead, evade, manipulate, intimidate
9. Protecting confidential information (classified information is simply one variety)
10. Integrating all of these, and adapting as the facts, policy, and law change
Dakota S. Rudesill
Assistant Professor, Moritz College of Law
@DakotaRudesill
Top Related