design decisions and experiential experiments drafting exercises design decisions and experiential...

LEGISLATIVE DRAFTING EXERCISES

Design Decisions

and Experiential Experiments

Duquesne Law – 2016.12.03

Dakota S. RudesillAssistant Professor, Moritz College of Law @DakotaRudesill

Why Teach Legislative Drafting?

Or, put another way,

what are my pedagogical goals?

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?

I use 4-part process…

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?

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?

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

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2509477


1. Large Lecture Class In-Class Exercise


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


2. Clinic In-Class Simulation


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


3. Immersive, Large, All-Day Multi-Day Simulation

2016 participants…about 1/3 of us!



• 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)








• 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



• 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

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.



http://moritzlaw.osu.edu/briefing-room/national-security-

simulation/

http://moritzlaw.osu.edu/briefing-room/national-security-simulation/




• 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


• 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: priority setting, collection, analysis & dissemination

(info sharing), consumer action or feedback

• Federalism: interaction of federal, state, and local government



• 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

Design checklist

for legislative drafting exercises


Pedagogical Goals

Realism

Resources and Constraints

Roles

Student Performance Assessment


Pedagogical Goals


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?


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


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

Facilities: Lecture Bowl, Clinic, Conf. Center

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]


Roles


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?


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

[email protected]

@DakotaRudesill

mailto:[email protected]

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