I once read a scene in one of John D. MacDonald’s Travis McGee novels where the detective McGee is trying to squeeze information out of a bar or restaurant owner. He threatens to get his friend in the sheriff’s office to hassle the man. The restaurateur protests that the law can do nothing to him, he’s fully in compliance with all applicable health codes, etc. McGee insists that is impossible: The law is deliberately crafted so that if you are in compliance with one agency’s regulations you will be in violation of another, if you comply with county codes you will be violating the state regulations, etc.; the Powers That Be do that so they can always be in a position to hassle you if they feel like it. He speaks as if mentioning something they both already know perfectly well, and the owner has no answer.
I’ve encountered this assumption now and then – also, a meme that the law is intentionally baffling and hard to understand because most lawmakers are lawyers and want to make sure lawyers will always be needed to interpret the law. And so on.
Now, in law school they told us the latter, at any rate, is not true. When the law is ambiguous, that is simply because it is impossible to draft it to cover every possible circumstance that might arise under it. And experiments show that the more effort you make to draft a statute to do that, the harder the result is for laypersons to understand it at all. The less ambiguous, the more perplexing, and vice-versa. Besides, lawyers want the law to be clear; they’re the ones who have to puzzle it out.
But people still think legislators are in some kind of conspiracy to keep them confused and lawyer-dependent. Is there any reason to believe such a thing? I’m a lawyer but I’ve never been involved in any legislative process.
I don’t believe laws are written to keep the people confused, but I do believe that politicians encourage us to focus on moral-panic issues (abortion, drugs, immigration, crime, etc.) in order to keep us distracted from the real problems in this country.
Step one: Introduce issue which is designed to make Americans outraged/afraid.
I have a good reason to think it’s bogus; I’m an ISO 9001 and health and safety auditor.
It’s my job to read procedures and such. It’s remarkable, really, how HARD it is to write down how people are supposed to do things without having a bunch of ambiguities, contraditions, illogical statements and such. Every manual I’ve seen is rife with them. And that’s just to document procedures for some little company. Writing laws for a whole country is a hundred times harder, and so to get down exactly what you’re trying to accomplish is hard to write in simple terms.
I mean, just try to write a comprehensive law that bans murder. It’s not easy. (Indeed, we don’t even have such a law written down in one place; we rely on precedent to set a lot of the details of the law against murder.)
Another problem is that a given statute, or a given common-law principle, can be baffling to the layperson but easily comprehensible to the lawyer because the latter (1) is trained in that kind of thinking and (2) knows the technical terminology.
In “The Happy Days Ahead,” last story in Heinlein’s 1981 collection Expanded Universe, there is a senator who wants to add a “Plain English Amendment” to the U.S. Constitution, providing that any statute shall be legally invalid if a panel or jury of average non-lawyer citizens are unable to clearly comprehend its meaning. One of my law school profs explained to me why that wouldn’t work (see OP).
A good many laws are actually written, not by lawmakers, but by the folks (and their lobbyists) who stand to benefit from them. When the text is confusing, there can be many reasons. One reason is the need to hide the true intent of the law. For example, an apparent pollution-fighting law cleverly exempts a class of polluters or makes compliance voluntary.
Another reason can be that lawmakers want to placate one group while protecting another. A textbook example is the “assault weapons ban.” Instead of protecting police from full-auto weapons (already illegal) and other scary TV-show props, it merely outlawed a handful of cosmetic features (pistol grips, folding stocks, big magazines, and threaded barrel ends.) The anti-gun folks could claim a victory, and the pro-gun folks could cry outrage while chuckling into their hats.
A third reason is unintentional. A significant number of congressfolk are lawyers, and they naturally write in legalese unless somebody stands by with a rolled up newspaper to smack them when they don’t write in plain English. Wouldn’t that be a fun job? In the state legislatures, where most of them are not lawyers, these teachers and farmers think they have to write in legalese, too, so you get a garbled mock-legalese that nobody can decipher.
So, are laws intentionally confusing? Some are. Others are poorly written. Some were never intended to do anything.
Actually, almost all bills (and any laws that result) are written by a group of lawyers employed by Congress called Legislative Counsel. While the ideas for laws may be suggested by lobbyists or others, leg counsel are the ones who actually write the law.
“Plain English” would not serve the purpose. The results would be too ambiguous for clear application. Legalese exists for more than traditional reasons. Every specialized field of human endeavor needs and has its own specialized jargon or “terms of art,” as we lawyers say, and the law is no exception. Do people object when physicians use obscure terminology derived from Greek and Latin, or when engineers talk in technical acronyms?
That’s what we learned in Civics class, and it may have been true at one time. It’s rather more direct these days. Besides, this administration has a habit of hiring directly from the companies to be regulated. The legislative counselor writing the energy bill “no longer works for” Exxon Mobil (wink,wink.) :rolleyes:
Sometimes I wish I had never found out how the process really works. I probably wouldn’t be as cynical as I am.
Actually, it’s not. As someone who worked on Capitol Hill, I can tell you that leg counsel is the group of people responsible for most of the actual language in pretty much every bill introduced. Sure, staff may tinker with language, but since most Hill staff are not lawyers and have little knowledge about what part of the US Code is being is being amended, leg counsel is relied upon very heavily.
Sure, lobbyists routinely suggest ideas that leg counsel then put into legalese. Lobbyists may also suggest actual bill language and may critique the work leg counsel does. But most work is done by leg counsel.
From my experience at the state level, most states seem to have a similar service – a trained group of lawyers whose sole job is to take legislative proposals and figure out how to amend the state code to make those proposals a reality.
Your civics class? In high school? Come to DC and actually work on the Hill like I have (and most likely a good chunk of the DC Dopers - it’s a rite of passage in this town). I’ve even worked in lobbying. I concur with pretty much everything Renob said.
Penalty Units are currently worth 75 each. The idea behind this is that you can simply change the worth of a Penalty Unit (defined in another Act), instead of saying "The Fine is (whatever)", because you end up with laws that have been on the books for 100-odd years with fines of $10, which may have been a detterent back in 1967 (when they converted to Decimal Currency), but wouldn’t even buy a six-pack of decent beer these days, and since no-one has the time to go through the books and go “Hmmm, ‘Interfering with the operation of a steam engine operated by the Royal Queensland Sugar Cane Railway, fine $10’… maybe we should fix that. Wait, is there even a Royal Queensland Sugar Cane Railway anymore?” they figured Penalty Units were the answer.
The Weapons Categories Regulation is about the only part of the Weapons Act that makes any sense, and even that manages to contradict itself.
It’s a nightmare trying to follow it all, as you can imagine… Even the police and government have trouble with it. Ask three different people with some knowledge of the Weapons Act for an interpretation and you’ll get three different, totally contradictory answers.
New South Wales is even worse… Queensland’s gun laws are fairly liberal by Australian standards! :eek:
We had an interesting discussion on the issue of legal drafting a month ago in this thread: the necessity of lawyers (and other folk). One poster was adamant that a particular sample of a statute could be re-drafted more intelligibly and undertook to get back to us with the text. No further posts on the thread since then. Minor example, but interesting datum.
I’ve been involved in legislative drafting occasionally, and the overwhelming impression I’ve had is that it’s damned hard to do. The emphasis is on nailing down the meaning as precisely as possible - the complete opposite of the OP. Given the inherent ambiguities of any language, plus the multitude of factual examples that have to be covered, and finally, the legal principles that have to be considered, my hat is off to the lawyers who prepare the text of laws.