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I suppose I should just take the coders-make-better-drafters line, because it's good for me. But frankly, little of this post said much that I could discern, a
by kemitchell 5y ago
I suppose I should just take the coders-make-better-drafters line, because it's good for me. But frankly, little of this post said much that I could discern, and a lot of the rest sat wrong. Especially the unstated assumption that there is some all-encompassing metric of drafting goodness along which coder-lawyers can be "some of the best". The quality metric is client outcome, which is contextual. Not any abstract or inherent quality of lawyerly workmanship.
There are some areas where concepts from programming help. But in my experience, mostly with structural aspects, like drafting conventions---defined terms, cross-referencing, enumeration/tabulation---rather than with substantive rules about how to interpret legal texts. Apart from that, it's mostly been a matter of acculturation. Coders are good at writing for, and explaining to, other coders.
In the same way, I think mathematicians and logicians and linguists and finance people also make "some of the best" drafters---all dual-class builds are special, and none of them is. Because those disciplines also boast powerful tools, vocabularies, and tribal affiliations. Conversely, all these confident professionals running around with power tools and strong style preferences prove that much more liable to hammer-sees-nails syndrome, outside their native domains.
As for the interpretation rules---the "canons of construction"---I don't understand the rule against surplusage as the author does. At least in the US decisions I've read, that's about not interpreting language in ways that make some of its words meaningless. Not that every word has "precise" meaning. Spoiler Alert: They don't. They can't. It's natural language. About the real world.
As for "stress-testing", a lot of that happens within the legislative, regulatory, and litigation processes. Sure, some bills get rammed through in poor form for political or procedural reasons. But a good many bill trackers reveal initial drafts by lawyers working in affected constituencies, then amendments addressing unforeseen consequences and edge cases, as the bill gets shopped around. Codifications show new bills amending old to make still more tweaks.
When regulatory bodies make the rules, we have notice-and-comment, to which the public is even more explicitly invited. Very often, legislatures include bits in important new laws that require regulators to follow up with new rules, to fill out specifics. There are various reasons for this, but one is avoiding blowback from constituents who weren't involved and didn't mention how the law might hurt them during the legislative process. One of the functions of lawyers for all these potentially affected parties is to analyze hypothetical effects, instead of just waiting to see how things play out in practice.
Once law or reg does hit the books, we have cases in the courts, with limited power to interpret and adjust over time. Where a law seems busted beyond their powers to mend, judges can and do publish opinions that say, in essence, "This seems wrong, but I have to rule this way, because that's what the law says. If this isn't what the legislature wanted, they should really change the law, because I can't." Happens all the time.