The Modern Way to Write a Statute is to Tell a Story

1. Introduction

During the Parliamentary debate leading up to enactment of the U.K.'s Mental Capacity Act 2005,^[1] a member of the House of Lords said,

Clause 1 contains a statement about a vision of humanity and how humanity is to be regarded. I hope children in generations to come will study that as one of the clearest and most eloquent expressions of what we think a human being is and how a human being is to be treated.^[2]

Wait. Children should read a statute? And they should read it because it eloquently expresses what it means to be human as well as the treatment every human deserves—in other words, for the same reasons we read Dickens, Joyce, Melville, and Twain when we were young?

Here is the Mental Capacity Act’s clause 1 (which we would call section 1):

1. The principles

   (1) The following principles apply for the purposes of this Act.

   (2) A person must be assumed to have capacity unless it is established that he lacks capacity.

   (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

   (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

   (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

   (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.^[3]

On stage is a protagonist—“a person”—who has difficulty navigating life. Other characters on stage find the person’s behavior inconvenient, burdensome, or annoying. Later still other characters make decisions under the law about the person. The plot tension is about what those decision-making characters will do. The Act is instructions to them.

They are to take “all practicable steps to help” before limiting freedom.^[4] They are not to treat unwise decisions as proof of an inability to make decisions.^[5] The person has a right to make unwise decisions. They are to create solutions that are “less restrictive” of the person’s rights and freedom of action."^[6] The Act’s words require that the person be treated with dignity, respect—and empathy.

A later section tells the decision-making characters to “consider . . . (a) the person’s past and present wishes and feelings . . . (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.”^[7] The person has a legal right to be understood as a human being.

Intellectually a rule of law is a formula based on symbolic reasoning with elements or factors tests. Most American statutes are collections of abstract concepts, which might or might not be coherently expressed.

But in the real world, law isn’t applied as abstract concepts. Instead a legal rule is applied over and over again to sequences of events that occur over and over again—in other words, to stock stories with predictable plot tensions, which the law calls issues. As Stephen Paskey put it in a pioneering article,

[E]lements of the rule correspond to the elements of a story and have a logical relationship that qualifies as a “plot.” [A]nalytical moves we think of as rule-based reasoning are often a form of narrative reasoning, in which the story in a given set of facts is compared to the stock story embedded in the rule.^[8]

A statute is instructions to the people in the stock story. Those people—the characters in the story—want to know, or should want to know, what the law expects of them.

There is a well-developed literature on law expressing itself as stories, beginning with widely read work by Ruth Anne Robbins.^[9] Lori Johnson, Susan Chesler, and Karen Sneddon have written in depth on storytelling through drafted language in contracts and wills,^[10] which are private law governing those subject to them.^[11]

The common law is built on stories. Lawyers in the U.S. and the U.K. have always thought of law in story terms. We remember Mrs. Palsgraf, standing on a train platform and hit by a falling scale.^[12] British lawyers remember Mrs. Donoghue, sitting in a pub and discovering a decomposed snail in her ginger beer.^[13] The two cases were decided only four years apart and had similar effects on the evolution of the two countries’ tort law. But common law stories are specific to the parties. A statutory story is generic. A statute would omit the falling scale and the ginger beer and would instead tell the stock story.

We nod off mentally when we see a series of thoughts with no plot tension, which is why law books can seem boring even to lawyers. When you read a statute and have that nodding-off feeling, either of two things is the cause. Possibility A is that the statute addresses some subject for which there is no natural story. Possibility B—perhaps the much more frequent possibility—is that the drafter didn’t understand stories and how to tell them by implication.

What does a storytelling statute actually look like? This article’s Part 2 illustrates that by comparing sections in the U.S. Code at issue in the July 2023 Mar-a-Lago indictment^[14] with redrafts in the style now used in U.K. criminal statutes. Parts 3 and 4 compare statutory drafting in Congress with statutory drafting for Parliament. Part 5 compares the American, British, French, and Swedish models of statute design and drafting. Part 6 explains how the British stopped drafting statutes the way we do and developed a modern method that involves a significant amount of storytelling.

What does it take to tell a story through a statute? Some characteristics are organizing and sequencing events to produce a plot (this article’s Part 7); blocking to set up scenes (Part 8); and writing dialog and action (Part 9). Parts 8 and 9 analyze the Electoral Count Act in light of what happened on January 6, 2021.

2. Redrafting Crimes Charged in the Mar-a-Lago Indictment

The July 2023 Mar-a-Lago indictment alleges 42 counts (separate crimes) involving subsections of various federal criminal statutes. Using the current U.K. storytelling style, I redrafted the U.S. Code sections at issue in 37 of the 42 counts. In Tables A and B, the statute is in the left column, and the redraft is in the right column. (An actual U.K. statute in this style is in this article’s Appendix.)

18 U.S.C. §793(e)—Willful Retention of National Defense Information. The first 32 counts allege violations of this subsection of the Espionage Act. The entire Espionage Act is § 793, which was enacted in 1917;^[15] codified into positive law in 1948;^[16] amended in 1986;^[17] and amended again in 1994.^[18] Section 793’s subsections don’t have captions (names), but the indictment calls the crime in § 793(e) willful retention of national defense information, which perhaps is the name judges and lawyers use in federal prosecutions.

The statute and the redraft mean exactly the same thing.

The redraft can be understood by any well-educated person who takes the time to read it carefully.^[19]

The redraft differs from the original in only two ways. One is coalescing concepts. Section 793(e) has a long list: “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, map, model, instrument, appliance, or note.” These are just examples of objects, some of which—signal books, photographic negatives, and blueprints—are historical curiosities and no longer matter. The redraft deletes the examples and replaces them with the basic concept—an object.

The other difference is that the redraft is in the U.K.'s storytelling style for criminal statutes. (An actual example, from the Anti-Bribery Act 2010, is in this article’s Appendix.) In the Office of Parliamentary Counsel’s drafting manual, these are the first two commands:

1.1. Telling the story

1.1.1. Take readers by the hand and lead them through the story you have to tell. Imagine that you are trying to explain something orally to interested readers. Where would you start? What will they want to know first?

1.1.2. It may help to give readers an overview of the whole story at the outset, so that they can understand each part in the light of the whole. Readers are more likely to understand something if they know why you are telling them.^[20]

The U.K. style has something in common with what Francis-Noël Thomas and Mark Turner call the classic style of prose, which they trace from Thucydides and Euclid through Pascal, La Rochefoucauld, A.J. Liebling, and E.B. White.^[21]

The model of classic style is the voice of conversation. . . . Classic style models itself on speech and can be read aloud properly the first time [a reader sees it].^[22]

In speech, an expression is gone the moment it is spoken, and has only that one instant to enter the mind and attain its place in memory. . . .

The ideal speech of classic style appears to be spontaneous and motivated by the need to inform. . . .^[23]

This is a silent conversation between the writer and a reader whom the writer will never meet. The reader can’t speak, but the writer understands the reader’s thinking and converses with it.

The Table A redraft has something of the experience of conversation even if the reader is actually sitting alone quietly in an office. The reader and the drafter might as well be sitting on a park bench while the drafter explains § 793(e)'s two crimes—as though those crimes are interesting. Embellishment isn’t needed. Just tell the story. Stories are interesting.

Classified documents vs. unclassified documents. Why do people talk about § 793(e) as though a document’s classification status is relevant? It has never been relevant. The Act’s test—bluntly stated inside Congress’s thicket of words—is whether a defendant had reason to believe that a document “could be used to the injury of the United States or to the advantage of any foreign nation.” Classification status doesn’t matter. There are two reasons.

One is that it was impossible in 1917 for Congress to enact a statute referring to a document classification system. There was no document classification system in 1917. It was created three decades later through executive orders and administrative regulations (not even through legislation). It’s just a bureaucratic method of putting labels (“Secret,” “Top Secret,” etc.) on documents to manage who sees them. A label is just a label. Changing the label doesn’t change a document’s contents.

The other reason is that the only logical way to draft this crime is to base it on a document’s inherent characteristics—whether it could harm the U.S. or help another country. Thousands of government employees and military personnel are authorized to classify and declassify documents. If the crime were based on a document’s classification, any of those people could declassify it, sell it to an enemy, and not have committed a crime.

If § 793(e) had been drafted as in Table A’s right column, would so many ignorant statements have been made—and taken seriously—about this statute? Or would people—including non-lawyers—have read it and known what it means?

Subsections of 18 U.S.C. § 1512—Withholding a Document or Record; Corruptly Concealing a Document or Record; and Conspiracy to Obstruct Justice. Section 1512 includes 21 different crimes.^[24] Three of them are alleged in the July 2023 Mar-a-Lago indictment:

§ 1512(b)(2)(A)—which the indictment calls^[25] withholding a document or record (Counts 34 & 40);

§ 1512(c)(1)—which the indictment calls corruptly concealing a document or record (Counts 35 & 41);

§ 1512(k)—which the indictment calls conspiracy to obstruct justice (Count 33).

Subsection (b) was in the original 1982 enactment of § 1512.^[26] Subsection (c) was added by the Sarbanes-Oxley Act in 2002.^[27] Subsection (k) was also added in 2002, but not through Sarbanes-Oxley.^[28]

Again the statute and the redraft have exactly the same meaning.

Here, we have the object problem again. Section 1512 uses the formulation “record, document, or other object.” “Record” and “document” are unnecessary examples. Obviously they are objects. Sometimes a list of examples is necessary. But a chaotic legislative process produces unnecessary lists as every cook, in a crowd of cooks, throws a pet idea into the pot on the stove, producing incoherence rather than a well-told story.

3. Drafting in Congress

Before the early twentieth century, Congress had virtually no professional staff.^[29] Bills were written by senators and representatives themselves.^[30] Some of them felt insulted when suggestions were made to hire professional drafters.^[31] During a 1913 floor debate, Senator Bacon of Georgia said that “when Senators are going to need a schoolmaster to teach them how to draft a bill, . . . [they] should retire to their homes . . . and let somebody else come here who is capable of doing such work.”^[32]

In 1916, Middleton Beaman, a librarian and a member of the Columbia Law School faculty, was allowed to draft some legislation, at first on a volunteer basis. Because Beaman actually understood how to write tax statutes, a subject that baffled elected legislators, Congress included in the Revenue Act of 1918^[33] a provision creating a small drafting office for the House and another for the Senate.^[34] By design, the House office “was constructed around one man”^[35]—Beaman. The Senate got a drafting office for balance. These evolved into today’s Senate Office of the Legislative Counsel and House Office of Legislative Counsel.

Beaman was a “caustic, redheaded Yankee.”^[36] Something of his work style can be seen in meetings of the House Ways and Means Committee on the bill that became the Social Security Act of 1935.^[37] The Act created a retirement income system, a separate income system for disabled people, and a system of unemployment benefits. Various executive branch agencies had drafted parts of the original bill, which the White House had stitched together and sent to Congress. The Ways and Means Committee met in executive session for weeks, with Beaman in the room, going over the bill line by line, trying to convert it into enactable legislation. The assistant solicitor for the Department of Labor was also in the room and later remembered it this way:

The committee’s procedure was to read the bill, paragraph by paragraph. No sooner was a sentence read, however, than Mr. Beaman was on his feet asking questions: Where the bill said that employees should receive old age benefits, did it mean to include American employees stationed abroad? If the committee members said No, then Mr. Beaman, terrierlike, would ask: What about a contractor, in Detroit, who sent his regular crew on a job for a few days in Windsor, Ontario? What about seamen on the Great Lakes? A cook on a ship that went from Seattle to Alaska, through Canadian waters? He insisted on answers, and the committee members generally complied.^[38]

This is the kind of quality control needed to produce coherent, complete, and unambiguous legislation. Beaman was given a deference no Congressional drafter receives today. When he retired in 1949, the U.S. Code was four volumes.^[39]

In 1954, when the Code was only five volumes,^[40] Reed Dickerson called it “a vast tower of Babel.”^[41] Now it’s 36 volumes,^[42] the incoherent result of a chaotic process with very little research and development at the design stage and very little quality control at the production stage. Individual senators and representatives have plenty of opportunities to throw pet ideas into a bill even if it’s not clear what those ideas mean and how they are related to the rest of the bill.

Bill drafting is done, without coordination, all over Capitol Hill—in the Senate Office of the Legislative Counsel; in the House Office of the Legislative Counsel; by staff in Senate committees and House committees; by individual senators’ and representatives’ own office staff; by executive branch agencies; and by outside interest groups that lobby for language they have drafted. In the last decade, some very good studies have been based on interviews with congressional staff involved in bill-drafting.^[43] (The block quotes below come from those studies.)

There is no central bill drafting authority, and no one controls a bill’s language throughout the time preceding enactment. A bill that was coherent when first written can quickly become incoherent as it is marked up in committee meetings and amended on the floor. The process can look like this (summarizing and quoting from interviews with staff drafters):

Drafting on the Floor[:] In the Senate, where there are virtually no rules, it is possible that senators will choose to construct a bill during [floor] debate. Indeed, at least a part of every major bill is so constructed in the form of “managers’ amendments,” which are typically provisions deemed acceptable . . . to both political parties and included in one omnibus attachment. If this is where a bill is drafted, then the normal processes of drafting change. As one staffer put it, “There is no chance to do legal research here. . . . There is no ‘adult supervision.’ We do a quick read and correct it on the fly.”^[44]

After this, a bill can be marked up again in a conference committee made up of members of both houses who combine bills from each house on the same subject to produce one piece of legislation that can be approved with identical wording in both houses for enactment.

Like drafting on the floor, drafting in conference was described by staffers with a significant measure of concern. . . . Indeed, one staffer emphasized that while it was well and good to draft a bill clearly, there was no guarantee that the clear language would be passed by the House or make it through conference. . . . [I]n House-Senate conferences: . . . “[T]here are deals cut with four people in the room, deals on the floor are dropped, nobody knows what’s in the bill. . . . You can draft carefully and then it gets dropped in conference, and they put in something from the House that you never saw.”^[45]

At every step in this process, any individual senator or representative can have an opportunity to fiddle with the wording.

When bills are drafted on the floor or in conference, time pressures can be intense; a staffer may have only “thirty minutes to get something done” on a “high profile issue.” . . . "Sometimes it’s sloppy drafting. And sometimes it’s because the people doing the drafting are young and inexperienced. There is a lot of turnover, and [there] are a lot of young people in these jobs. They can be smart but still inexperienced.^[46]

The two offices of legislative counsel have drafting manuals,^[47] but they bind only the drafters who work in those offices. No one really controls drafting in Congress. Committees are free to ignore drafting manuals. Conventions followed in one part of the U.S. Code are violated in other parts.

In some ways, congressional drafting customs still reflect the way statutes were worded in the nineteenth century, when senators and representatives wrote bills themselves. For example, in Title 18, most crimes are created in formulaic sentences structured like this: “Whoever [does X, Y, and Z] shall be [fined, imprisoned, etc.].” Section 1503 (obstruction of justice), enacted in 1831, is built around a 163-word sentence structured this way. Section 793 (the Espionage Act), enacted in 1917, contains an 803-word sentence with the same structure. That structure is still being used, for example in § 2421A (sex trafficking), enacted in 2018.

With few exceptions—one of which is explained in this article’s Part 9—congressional legislation has no author—a person or a small group of people who wrote the words. It takes an author to tell a story.

4. Drafting for Parliament

Drafting does not occur in Parliament.^[48] Drafting is done for Parliament.

The British legislative process is easier to understand if you visualize it geographically as we do when we speak of Capitol Hill and the White House. The three branches of British government are on different sides of Parliament Square.^[49] Westminster means the legislative branch of government because Parliament meets in the Palace of Westminster east of the Square. Whitehall means the executive branch, which is headquartered along Whitehall, a street leading north off the Square. The Supreme Court is at the Square’s southwest corner.^[50]

The statute-making process^[51] is divided into a Whitehall stage and a Westminster stage.^[52] Bills are created in the executive branch during the Whitehall stage. They are enacted by Parliament in the Westminster stage. During the Westminster stage, bills are usually amended to some extent. But Whitehall is involved in amendments, and a bill will be enacted as amended only if Whitehall is satisfied with it.

The Whitehall stage. In a parliamentary system, the party or coalition in control of the legislature forms the cabinet. Thus to some extent, the legislative branch controls the executive branch through a cabinet made up of legislators. But in a practical sense, the executive branch might be the more powerful of the two because the cabinet, once it has been formed, thinks as executives and controls the legislative agenda.

Statutes are drafted in Whitehall by the Office of Parliamentary Counsel, which, despite the name, is not part of Parliament. It is part of the executive branch and is located in the Treasury building in Whitehall.

The Office of Parliamentary Counsel was created in 1869 and was originally two people: Henry Thring and an assistant.^[53] In 1961, there were 18 drafters; in the 1990s, about 30 drafters; and now about 60.^[54] Two drafters are assigned to each bill. The head of the Office is First Parliamentary Counsel. The office as a whole, and the drafters working on a specific bill, are referred to as Parliamentary Counsel—or just Counsel.

Thring was the British equivalent of Middleton Beaman. Each of them institutionalized legislative drafting. Each could have an acerbic manner when confronted with legislative foolishness.^[55] And each was thoroughly respected by legislators,^[56] including those who experienced the acerbic manner.

There were three big differences. First, Beaman published very little,^[57] but Thring wrote an influential treatise on legislation.^[58] Second, Beaman has been largely forgotten^[59] while Thring is still known among British drafters.^[60] And third, as this article shows, Congress’s structure and practices prevented Beaman from establishing what Thring did accomplish with the Office of Parliamentary Counsel.

Legislative initiatives originate in the cabinet, as part of the majority party or coalition’s legislative goals, or in departments or ministries, as specific needs for new law are discovered. Initiatives of both types become part of the cabinet’s legislative program and are coordinated through the cabinet’s Parliamentary Business and Legislation Committee. Each bill is assigned to a bill team, made up primarily of civil servants, which develops the bill’s policy—the details of its goals—and creates instructions to Parliamentary Counsel, which is a request that Counsel draft a bill plus the data and background materials Counsel will need in drafting.^[61]

The drafting process includes frequent dialog among Counsel, the bill team, and others in the relevant department or ministry. Through that dialog, Counsel’s questions and comments cause refinements in the policy.^[62] Parliamentary Counsel are expected to do quality control. The cabinet’s manual of procedures to be followed in creating legislation includes this: “The principal contribution [of] the drafter [is] to test the department’s policy proposals . . . [and] sometimes . . . spot potential difficulties that may not have been obvious to the department.”^[63] A researcher who studied the bill development process concluded that “[i]f a drafter says that a policy cannot work,” that comment “is taken extremely seriously.”^[64] It should be taken very seriously. Parliamentary Counsel’s drafters probably know more about building a statute than any other group of people in the U.K.

The Westminster stage. After a government bill^[65] is introduced in Parliament, it is floor-debated and then referred to a committee of legislators specifically created to consider that bill. There it might be amended. It then returns to the floor of each House, the House of Commons and the House of Lords, where it is again debated and then voted on.

Some amendments come from the executive branch in light of comments made in committee and during debate. These are called government amendments and are drafted by Parliamentary Counsel. A non-government amendment, one that did not come from the executive branch, stands little chance of adoption unless accepted by the minister in charge of the bill. A minister is not allowed to accept an amendment unless it has been approved by Parliamentary Counsel.^[66] Thus regardless of an amendment’s source, Parliamentary Counsel controls the drafting.

In the end, “99 per cent of the language in the statute book is chosen entirely by Parliamentary Counsel,” according to Daniel Greenberg, a former First Parliamentary Counsel.^[67] Greenberg added that “Parliamentary Counsel have something of a reputation within Whitehall for individuality and even eccentricity.”^[68] That might apply to some Counsel more than to others and, to the extent it applies might reflect different ways of looking at one’s work. An administrators’ main work is to administer law as it is. Counsel’s work is more creative: “making the law [and] communicating the law that he or she is making.”^[69]

5. Four Models of Statute Design and Drafting

I am familiar with four models of statute design and drafting:^[70] (1) the common law patchwork model, which characterizes nearly all American statutes and which was once traditional in all common law countries; (2) the modern British model, which has emerged in the last three decades and is displacing the common law patchwork model in the U.K. and in other Commonwealth countries; (3) the French model, which is based on tightly constructed Cartesian logic; and (4) the Swedish model, which is both rigorously empirical and disarmingly practical.

Of the four models, the Swedish most closely resembles engineering. The French model most closely resembles math, particularly algebra. The modern British model most closely resembles literature. And the common law patchwork model is a mess.

In common law countries, the law came originally from courts through precedent long before there were law-making legislatures. When eventually legislatures began to legislate, their statutes added to, subtracted from, or modified the common law. Historically in common law countries, statutes have just been patches sewn on to the common law and then statutes sewn onto other statutes.

We still think that way—which is why in Westlaw you are often offered cases at the top of a menu and must scroll down to find statutes. And when you get into statutes, you find chaos. The U.S. Code or a state’s statutes look organized at first glance, but when you start browsing in the statutes to find something, you quickly discover that there is very little logical structure and that what you’re looking for could be almost anywhere. It might even be in several places if a legislature legislated at different times on the same subject and put each provision in some place where you’re not likely to look.^[71]

This article focuses on the common law patchwork model and the modern British model because they are the main types now in the English-speaking world. The common law patchwork model characterizes nearly all American statutes,^[72] but it is in decline elsewhere. The modern British model is in the ascent.

The differences are illustrated in this article’s Appendix with bribery statutes from New York, Britain, France, and Sweden in parallel columns. The French and Swedish statutes are there for context.

The Swedish bribery statute is pragmatic; it just sets out the rules. Swedish statutes “are drafted in layman’s language.”^[73] A very thick book—Sveriges Rikes Lag—which includes the core statutes of general applicability, such as the criminal code, is in every lawyer’s office and next to judges in courtrooms.^[74] But it is also sold in general-interest bookstores and can be found in the reference sections of public libraries. Before the internet, it might have been seen on a bookshelf in a home.^[75] Now it’s more likely to be an app on a cell phone^[76] although paying for an app isn’t really necessary. Statutes are easily accessible on government websites and are written in straightforward language that non-lawyers can usually understand. Behind this practicality and accessibility is empiricism. Every significant Swedish enactment is preceded by an investigation conducted by a special commission made up of experts in the problems at issue together with stakeholders who are affected by those problems or would be affected by legislation.^[77]

The French bribery statute is clean mathematical logic.^[78] In a book that became influential in the U.K., Sir William Dale wrote that “[s]tatutory law in France has an order, a logical development, a freshness, a certain elegance . . . a clarity of utterance, and an overall quality of readability.”^[79] A French drafting expert said, “We try to [produce] . . . a draft as short and simple as possible, and in good classical French.”^[80]

The British bribery statute in the Appendix was enacted in 2010 in the modern British model’s storytelling style for criminal statutes. It has plot lines and characters named P and R.

The New York statute is so overwrought and hyper-intellectualized that it approaches incomprehensibility. One of the reasons for disorganized messes in our statutes is a habit of amending and amending and amending over and over again to respond to lobbying and other forces. That is why New York has 56 types of homicide^[81] while Sweden has 12.^[82]

Each model’s strength reflects its cultural context. Swedish culture is practical, with great respect for empirically demonstrated facts. French culture is intellectual, with great respect for ideas.^[83] British culture is narrative, with great respect for stories and well-developed characters.

6. How the British Left the Common Law Patchwork Model

We inherited the common law from Britain, and until relatively recently, British statutes were drafted in the common law patchwork model where a legislature throws words at a problem and waits to see what courts think the words mean. This was often complained about by judges, barristers, solicitors, and anybody else who tried to read a statute.

Change began with the Renton Report in 1975,^[84] which told Parliament and Parliamentary Counsel in great detail why their work product was unsatisfactory. Very gradually in the 1980s and 1990s, law-making practices began to improve. Along the way, the storytelling technique began to develop.^[85]

In 2013, Parliamentary Counsel participated in the Good Law Initiative^[86] to develop criteria for effectiveness in statutes that Parliamentary Counsel and bill teams could treat as benchmarks. The cabinet’s manual of procedures to be followed in creating legislation now treats the Good Law Initiative as Whitehall policy: “An understanding of ‘good law’ should underpin the preparation and promotion of legislation. It should be the default . . . part of the new, user-centered approach across government.”^[87]

Now you can browse British legislation on a refreshingly friendly government website.^[88] The U.K. National Archives, which operates the site, found that users fall into three categories—the first two of which represent “a very large audience of non-lawyers”:^[89]

1. “a non-lawyer who needs to use legislation for work, for example a police officer, a local council official or a human resources professional . . . .”^[90]

2. “a member of the public seeking to enforce his or her rights or those of a relative or friend, such as rights to welfare benefit claims or appropriate educational provision for children with special needs; [a person in] this category . . . might wish to quote legislation to give weight to her case, or to feel more confident of her own ground, or might have had a particular statutory provision invoked against her and want to see for herself what it says.”^[91]

3. “a lawyer . . . [who] typically [has] access to subscription services and look[s] at legislation.gov.uk alongside them.”^[92]

If you’re just curious about statutes, the site behaves like a sommelier in a high-end restaurant helping you choose an appropriate wine. Would you like to see legislation enacted in the nineteenth century? The website will be happy to show you all it has. The eighteenth century? The website will offer that, too. The oldest wine in the cellar? That would be an enactment from the year 1267.^[93]

There are still criticisms of even recent U.K. statutes, such as John R. Spencer’s well-deserved shredding of the Sexual Offenses Act 2003.^[94] But that is a statute that any American state legislature could enact tomorrow without complaint from anybody here.

7. Organizing and Sequencing a Story (Voter Initiatives)

Characters understand instructions better if the story is organized in a statute the old-fashioned way: chronologically. From Parliamentary Counsel’s drafters’ manual:

1.1.5 Finding a clear order in which to tell your story is fundamental. This goes for a story which is spread across a whole Bill or for a story contained in a single clause.^[95]

This can be illustrated with U.S. statutes on voter initiatives—also called citizen initiatives or popular initiatives—through which voters can enact law themselves without going through a state legislature. Voters can do this in 24 states.^[96] A voter initiative stock story has seven scenes, which are described below. The characters are—

1. the proponents, who want to make new law (and will appear in every Scene);
2. the state Secretary of State or another state agency that supervises elections (Scenes 2, 3, 5, 6, and 7);
3. the state Attorney General (Scene 3); and
4. the voters (Scenes 4 and 7).

Each of the 24 states has its own variation of the stock story, and a state’s variation might include other characters. But this is the basic story structure.

Scene 1—The proponents decide they want the law changed through initiative. They form an ad hoc organization and create a draft petition.

Scene 2—The proponents appear in the Secretary of State’s office and submit a draft of their petition, seeking approval to circulate it among voters. The Secretary of State approves the petition for circulation if it meets the statutory form requirements. There isn’t much plot tension here because form requirements tend to be simple and the Secretary of State’s duty is purely ministerial.

Scene 3—The Secretary of State forwards the petition to the Attorney General, who approves it if it meets content requirements (the proposed statute wouldn’t be unconstitutional, etc.—perhaps more plot tension because this duty isn’t purely ministerial). If all goes well, this scene ends with smiling proponents exiting the stage happily holding their petition, which can now be circulated.

Scene 4—On sidewalks, parking lots, and other public places, volunteer and paid circulators try to persuade people that the law should be changed. If a person agrees, the circulator asks whether the person is a registered voter, and, if the answer is yes, asks the person to read the petition and sign it. This scene is long and tedious because the same action happens over and over and over again, with hundreds of circulators and thousands of voters. There is no drama, but there is plot tension. The proponents watch the action anxiously. Will enough signatures be obtained in time? “Enough” will be a specified percentage of the voters who voted for a certain office, typically the governor, in the most recent election. “In time” could involve two deadlines: a specified number of days after the petition was approved (in Scenes 2 and 3) and a specified number of days before the next election.

Scene 5—The proponents return to the Secretary of State’s office, or in some states to local elections officials, with thousands of pages of signatures and then watch anxiously as elections staff compare signatures with voter registration records. If there are enough valid signatures and if other requirements are met, the Secretary of State announces that the proposal will appear on the ballot at the next election.

Scene 6—The Secretary of State prepares the ballot to reflect the proposal accurately and also prepares voter guides and other publicity educating voters about the proposal and the arguments for and against. There might be some plot tension in the form of disputes about the ballot’s wording and the publicity content.

Scene 7—On or before election day, the voters vote. Then the polls close. The votes are counted, and the Secretary of State announces either that the voters have approved and the law has been changed (the proponents leap for joy) or that the opposite has occurred (and the proponents leave the stage in dejection).

Some of the law, such as the number of signatures required, is so fundamental that it will be in a state’s constitution. But everything else will be in a state statute.

The characters in the stock story are also the statute’s users. The statute is their script and stage directions. But the statute will make sense to them only if it is organized exactly the way the stock story is because that is how they experience the law on this subject. They are inside the story and need instructions for each scene—what they are required to do, what they are allowed to do, and what they are forbidden to do in that scene.

But these statutes aren’t usually organized that way. They tend to be organized by topics. Or by a mixture of topical organization with some chaos thrown in. Or by a mixture of topical, chaos, and a little bit of story.

For example, here are the California Election Code sections that govern statewide voter initiatives.^[97]

Another California code—the Government Code—also has two sections specific to initiatives: sections 10243 and 12172. Both sections relate to Scene 1. But they are far apart from each other.

All these statutes are baffling to the audience—the proponents, other political actors, government officials—who are inside the story and need instructions for whatever scene they are in at any given moment.

8. Blocking to Set a Scene (Electoral Count Act, 3 U.S.C. § 16)

Two things happen on a theater stage. Dialog is what the actors say. Blocking is everything else: where the actors are when the curtain goes up and how they move during a scene. Dialog is what the audience hears. Blocking is what the audience sees.^[98]

The presidential election stock story has four scenes.

Scene 1—Voters cast ballots for presidential candidates on or before election day in November. This is governed mostly by state law. Ballots list the names of presidential candidates. But by voting for a candidate, a voter is actually voting for electors who are pledged to that candidate.

Scene 2—Electors chosen by the voters meet in state capitals and cast their electoral votes in December. This is governed partly by state law and partly by the federal Electoral Count Act (the ECA).^[99]

Scene 3—Electoral votes are formalized and sent to Washington. This is governed entirely by the Electoral Count Act.^[100]

Scene 4—On January 6, at a joint session of Congress, envelopes containing the electoral votes are opened, and the electoral votes are counted.^[101] The moment when the totals are announced is the moment when a president is actually elected. Some of the basics are governed by the 12th Amendment to the U.S. Constitution. Other basics and all of the details are governed by the Electoral Count Act.^[102]

The ECA was passed in 1887.^[103] Because of what happened on January 6, 2021, it was extensively amended in 2022 by the Electoral Count Reform and Presidential Transition Improvement Act (ECRPTIA).^[104] But nobody routinely refers to the first 22 sections of Title 3 as ECRPTIA. Their name is the Electoral Count Act as amended.

What Congress does on January 6 is the only time that the Senate and House of Representatives ever meet together to make decisions. Neither body’s rules can govern this joint session, which instead must be governed by a statute.

Scheduling issues. How long must all these people be in the same room doing this work? Are they allowed to take breaks? If there is an objection to counting a state’s votes, the two bodies separate, make separate determinations, and then reconvene together. How are the separating and reconvening to be handled?

Protocol issues. Each body has a presiding officer—the Speaker of the House and the President of the Senate (who is also the Vice President of the entire government). The President of the Senate presides over this joint session, but the Speaker must be respected. And members of the Senate must be physically separated from members of the House.

Protocol and some of the scheduling is governed by 3 U.S.C. § 16, part of the ECA. The 1887 version of § 16 is still law. The only modification made by the 2022 amendments was to change the phrase “joint meeting” (1887) to “joint session” (2022).

Part of § 16 is scene set-up, telling the characters their stage positions for the beginning of the scene. The rest of § 16 tells the characters how long they are to remain onstage. Section 16 does not tell the characters what to do and say.

Instructions about where to be when the curtain goes up should precede instructions about what to do and say after the curtain goes up. But the action—the what-to-say-and-do instructions—are in § 15. Section 16 is in the wrong place. Here again is a sequencing problem caused by a topical organization instead of a story organization that makes sense to the characters.

But that’s not the biggest problem with § 16, which is an incomprehensible slab of text. In Table D, § 16 is in the left column. In the right column is a redraft reflecting storytelling sensibilities. The two versions have exactly the same meaning.

Notice how visual is the storytelling version in the right column. A reader can see the scene.

9. Action and Dialog (Electoral Count Act, 3 U.S.C. § 15)

The key section of the 1887 Act—the original 3 U.S.C. § 15—is almost incomprehensible. Table E is § 15 as it was enacted in 1887 and was still law on January 6, 2021.

The main character here is the “President of the Senate.” That usually means the Vice President of the United States, who has the constitutional duty of presiding when the Senate is in session.^[105] But vice presidents almost never do that. The task is routinely delegated to some junior senator who would rather be elsewhere. The Senate also chooses a senator to be president pro tempore (pro tem). If there is no Vice President or the Vice President refuses or is unable to preside, the president pro tem is President of the Senate, which is why both the ECA and the 12th Amendment use that term.

Table F below is § 15 as it exists today, after the 2022 Electoral Count Reform and Presidential Transition Improvement Act. Here Congress did a fairly good job of storytelling. How could this rare thing have happened? There are two explanations, and they’re probably both accurate.

1. The legislators who created and voted for the new § 15 are themselves the characters in the story § 15 governs. On every future January 6 following a presidential election, they will need to be able to read § 15 in the House chamber—with no time for translation by lawyers—as the story unfolds. Instinctively, and perhaps without realizing what they were doing, they gave instructions to themselves, and to future senators and representatives, by telling a story.

2. Unlike almost every other federal statute, the Electoral Count Reform and Presidential Transition Improvement Act has an author. An author in this sense doesn’t mean a single person. It means a small group of people who create and mostly control the substance and the wording.

Two bills were advanced during 2022. The one that became the Electoral Count Reform and Presidential Transition Improvement Act started as a Senate bill (S. 4573), cosponsored by Senators Susan Collins and Joe Manchin. On the other side of the Capitol, Representatives Zoe Lofgren and Liz Cheney—members of the House Select Committee to Investigate the January 6 Attack on the United States Capitol (also known as the J6 committee)—introduced a House bill (H. 8873), which would have become the Presidential Election Reform Act if it had been enacted. The bills were similar in most respects, but they differed in details, some of which were important to the bills’ sponsors and their allies in each chamber.

Senator Collins introduced the Senate bill on July 20, 2022. She and Senator Manchin persuaded 22 Democrats and 15 Republicans to join them in cosponsoring it.^[106] The bill was considered briefly by the Senate Committee on Rules and Administration, which reported favorably and with no significant changes on October 18.

Representatives Lofgren and Cheney introduced their bill on September 19, 2022, and it went straight to the House floor, where it was approved two days later on a largely party-line vote. The yeas included all the House Democrats but only nine Republicans.^[107]

If either bill were to become law, it needed to be passed by Congress on December 23 and signed by the President by January 5. In the November 2022 elections, Republicans won enough seats to take control of the House on January 6, when a new Congress would convene. Democrats controlled both the Senate and the House in the Congress that would end formally on January 5, but practically around December 23 because of the holiday break.

By congressional standards, both bills proceeded at warp speed^[108] because the ability to legislate on this subject would soon disappear. No committee could be allowed to redraft. No amendments could be allowed during floor debate. Although each house had passed its own bill, no conference committee would be created to consolidate the two bills into one. One bill or the other would become law with almost no changes. The key people in the Senate and House conferred with each other. The House blinked.

On December 22, the Senate voted to incorporate the Collins-Manchin bill into a 1,653-page appropriations bill that needed to be passed immediately to keep the federal government open and operating. On December 23, the House passed the appropriations bill with the Collins-Manchin bill (and many other non-appropriations bills)^[109] included. President Joe Biden signed the package into law on December 29.

The underlined wording at the end of § 15 has been in the ECA since 1887 and might have been in earlier statutes.

If you were Homer reciting your Iliad or Odyssey aloud for an audience, which is what folk epics were for, and if the underlined wording were a passage in your epic (forgetting for a moment that it needs meter), here’s how you’d recite it, with a short pause at the end of each line to give your listeners a chance to absorb the line before going on to the next one:

The tellers shall make a list of the votes

as they shall appear from the said certificates;

and the votes having been ascertained and counted

according to the rules in this subchapter provided,

the result of the same shall be delivered

to the President of the Senate,

who shall thereupon announce the state of the vote,

which announcement shall be deemed

a sufficient declaration of the persons, if any,

elected President and Vice President of the United States

That moment—when the President of the Senate announces the state of the vote—is the exact moment when a president is actually elected. In the blink of an eye, as though by magic, the Electoral Count Act transforms one person into a President-elect and another person into a Vice President-elect.

10. Conclusion

All law is instructions. It is part of our culture generally to think in stories and to communicate by telling stories. The common law communicates its instructions through the stories in the case law, and we analogize to and distinguish from those stories.

Why do American statutes so rarely communicate their instructions with story techniques? Nothing inherent in the concept of a statute would prevent that. We share a language, a legal culture, and intellectual traditions with the British, who have recently figured out how to write stories into statutes.

One cause might be over-intellectualization—an unrealistic and impractical belief that a statute is a collection of ideas rather than instructions to real people in the real world. That belief certainly prevents the development of storytelling skills.

Another cause might be that we can’t expect much from our statutes. Our legislative process is chaotic. But a story needs an author—a small group of people who design a statute and control the wording. When dozens of legislators have the power to throw words into a bill, there is no author. There isn’t even coherence.

A surprising cause—but maybe the most important one—is that we aren’t as democratic as we think we are. For all our talk about open government and government by the people, there is no popular demand in the United States that ordinary people be able to read their statutes. Legislators don’t care about that. And we don’t seem to care that they don’t care.

Telling a story requires audience sense. You tell a story to an audience. A statute’s audience should be the people it governs.

Appendix
Comparing Four Statutory Styles
(Bribery)

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1. British legislation omits the word of between the act’s title and its date.

2. Peter Selby, Lord Bishop of Worchester, House of Lords debate (Jan. 10, 2005), quoted in Helen Caldwell, Can Legislation Rank as Literature?, in Drafting Legislation: A Modern Approach 245, 245 (Constantin Stefanou & Helen Xanthaki eds. 2008).

3. Mental Capacity Act 2005, c. 9, § 1.

4. Id. at § 1(3).

5. Id. at § 1(4).

6. Id. at § 1(6).

7. Id. at §4(6) (italics added).

8. Stephen Paskey, Law is Made of Stories: Erasing the False Dichotomy Between Stories and Legal Rules, 11 Legal Comm. & Rhetoric 51, 52 (2014). See also Kenneth D. Chestek, The Life of the Law Has Not Been Logic: It Has Been Story, 1 Savannah L. Rev. 21 (2014); Jennifer Sheppard, Once Upon a Time, Happily Ever After, And in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda, 46 Willamette L. Rev. 255 (2009).

9. Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 Rutgers L.J. 459 (2001); Ruth Anne Robbins, Fiction 102: Create a Portal for Story Immersion, 18 Legal Comm. & Rhetoric 27 (2021); Ruth Anne Robbins, Harry Potter, Ruby Slippers and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle U. L. Rev. 767 (2006).

10. Transactional Practice: Lori D. Johnson, Redefining Roles and Duties of the Transactional Lawyer: A Narrative Approach, 91 St. John’s L. Rev. 845 (2017). Contracts: Susan M. Chesler & Karen J. Sneddon, From Clause A to Clause Z: Narrative Transportation and the Transactional Reader, 71 S.C. L. Rev. 247 (2019); Susan M. Chesler & Karen J. Sneddon, Happily Ever After: Fostering the Role of the Transactional Lawyer as Storyteller, 20 Transactions 491 (2019); Susan M. Chesler & Karen J. Sneddon, Telling Tales: The Transactional Lawyer as Storyteller, 15 Legal Comm. & Rhetoric 119 (2018); Susan M. Chesler & Karen J. Sneddon, Tales from a Form Book: Stock Stories and Transactional Documents, 78 Mont. L. Rev. 237 (2017). Wills: Karen J. Sneddon, The Will as Personal Narrative, 20 Elder. L.J. 355 (2013).

11. “Contracts legally formed take the place of law for those who make them.” (“Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites.”) French Civil Code, art. 1103 (2016). Identical wording dates from the 1804 French Civil Code, art. 1134. The same concept is assumed, although not expressed, in the U.S. Uniform Commercial Code and Restatements of Contracts.

12. Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

13. Donoghue v. Stevenson, [1932] UKHL 100, HL 31, AC 562, All ER Rep. 1

14. Superseding indictment in U.S. v. Trump, Nauta & Oliveira, No. 9:23-CR-80101-AMC, filed July 27, 2023. (The original indictment was dated June 8, 2023.)

15. Pub. L. 65-24, 40 Stat. 217.

16. Pub. L. 80-772, 62 Stat. 683, 736-37.

17. Pub. L. 99-399, 100 Stat. 853, 898.

18. Pub. L. 103-322, 108 Stat. 2147.

19. Except perhaps for “fined under this title,” which can’t be reworded because of the arcane way that punishments are provided for in Title 18.

20. Office of the Parliamentary Counsel, Drafting Guidance 1 (2020)

21. Francis-Noël Thomas & Mark Turner, Clear and Simple as the Truth: Writing Classic Prose (2d ed. 2011).

22. In Table A, would you have been able to read the right-column redraft aloud, without stumbling or mistakes, the first time you saw it? What about the original statute in the left column?

23. Thomas & Turner, supra note 21, at 37 (italics added).

24. Nine in subsection (a); five in subsection (b); two in subsection (c); four in subsection (d); and one in subsection (k).

25. Section 1512’s subsections don’t have captions, which would have created Congress’s names for these crimes. The names in italics are the ones used in the indictment and perhaps are the names judges and lawyers use in federal prosecutions.

26. Pub. L. 97-291, 96 Stat. 1248, 1249–50. In the original enactment, the current subsection (b) was subsection (a).

27. Pub. L. 107-204, 116 Stat. 745, 807.

28. Pub. L. 107-273, 116 Stat. 1758, 1803-04.

29. George K. Yin, Legislative Gridlock and Nonpartisan Staff, 88 Notre Dame L. Rev. 2287, 2290 (2013) [hereinafter Yin, “Gridlock”].

30. Jarrod Shobe, Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting, 114 Colum. L. Rev. 807, 819 (2014); George K. Yin, Textualism, the Authoritativeness of Congressional Committee Reports, and Stanley Surrey, 86 Law & Contemp. Probs. 107, 111 (2023) [hereinafter, Yin, “Textualism”]; Yin, Gridlock, supra note 29, at 2294.

31. See Shobe, supra note 30, at 819; Yin, Textualism, supra note 30, at 112; Yin, Gridlock, supra note 29, at 2294.

32. 50 Cong. Rec. 2376 (1913).

33. Pub. L. 64-254, 40 Stat. 1057, 1141–42.

34. Shobe, supra note 30, at 820; Yin, Textualism, supra note 30, at 113; Yin, Gridlock, supra note 29, at 2295.

35. Frederic P. Lee, The Office of Legislative Counsel, 29 Colum. L. Rev. 381, 386 (1929).

36. Thomas H. Eliot, The Social Security Bill: 25 Years After, The Atlantic, August 1960, reprinted on Social Security Administration, Social Security History, https://www.ssa.gov/history/tomeliotart.html [https://perma.cc/S76S-27QC] (last visited November 29, 2023).

37. Pub. L. No. 74-271, 49 Stat. 620 (1935).

38. Eliot, supra note 36 (“Drafting is not just a technical job; it requires foreseeing every possible question that may arise and eliminating every ambiguity. This I really learned in the winter of 1935 from [watching Middleton Beaman].”).

39. 1946 edition, not counting tables, indices, and supplements.

40. 1952 edition, not counting tables indices, and supplements.

41. Reed Dickerson, Legislative Drafting: A Challenge to the Legal Profession, 40 ABA J. 635, 635 (1954). Dickerson had an international reputation as a drafter and pioneered the teaching of drafting in American law schools.

42. 2018 edition, not counting tables, indices, and supplements. (This is the official version, from the Government Printing Office. It is not the West version, which is further bulked up by case annotations.)

43. See Jesse M. Cross, Legislative History in the Modern Congress, 57 Harv. J. on Legis. 91 (2020); Jesse M. Cross & Abbe R. Gluck, The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541 (2020); Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretations from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901 (2013); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725 (2014); Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575 (2002); Shu-Yi Oei & Leigh Z. Osofsky, Constituencies and Control in Statutory Drafting: Interviews with Government Tax Counsels, 104 Iowa L. Rev. 1291 (2019).

44. Nourse & Schacter, supra note 43, at 592 (words in quotations are staffers’ comments).

45. Id. at 593.

46. Id. at 595.

47. Office of the Legislative Counsel, U.S. House of Representatives, Manual on Drafting Style (2022); Office of the Legislative Counsel, U.S. Senate, Legislative Drafting Manual (1997).

48. Some clarification of terminology: The United Kingdom is a union of four countries: England, Wales, Scotland, and Northern Ireland. The national legislature is the Parliament of the United Kingdom or, for short, the U.K. or British Parliament, which is made up of the House of Commons and the House of Lords. Legislation can be introduced in either House and will be debated in each House.

    The word English matters here only insofar as it refers to a language. There is no English Parliament. It abolished itself in 1706 by passing the Union with Scotland Act.

49. Parliament Square is an open space with statues of major figures in the history of the U.K. and its former colonies—Winston Churchill, David Lloyd George, and Benjamin Disraeli, for example, and also Nelson Mandela and Mahatma Gandhi.

50. This location was chosen in part for its symbolic value. The highest tribunal had been the Appellate Committee of the House of Lords, which met in Parliament’s Palace of Westminster. The Constitutional Reform Act 2005 converted, in 2009, the Appellate Committee into a Supreme Court, which was given its own building opposite Parliament’s. The second major Brexit appeal—R (on appl. of Miller) v. Prime Minister, [2019] UKSC 41—has become Britain’s Marbury v. Madison.

51. This discussion summarizes a very complex process of law design. For thorough explanations, see the official U.K. Cabinet Office, Guide to Making Legislation (2022), as well as Daniel Greenberg, Laying Down the Law: A Discussion of the People, Processes and Problems that Shape Acts of Parliament (2011); Meg Russell & Daniel Glover, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (2017); Michael Zander, The Law-Making Process (2020); and Edward C. Page, Their Word is Law: Parliamentary Counsel and Creative Policy Analysis, 4 Pub. L. 790 (2009). My summary of the British statute-making process is based on these sources.

52. Zander, supra note 51, at 3–142.

53. Reed Dickerson, Legislative Drafting in London and in Washington, 17 Cambridge L.J. 49, 52 (1959).

54. Zander, supra note 51, at 19; Page, supra note 51, at 794.

55. Once, just before Thring appeared at a cabinet meeting, one of the ministers said, “I think before he arrives we had better carry a preliminary resolution that we are all damned fools.” Henry Thring—A Hundred Years On, 28 Statute L. Rev. iii, iv (2007).

56. Thring’s encyclopedic knowledge “gave him enormous power and authority. It was said that he even ‘thought’ in statutory language.” Alec Samuels, Henry Thring: The First Modern Drafter, 24 Statute L. Rev. 91, 91 (2003).

57. Beaman’s most-cited publication was a co-authored article—Frederick P. Lee & Middleton Beaman, Legal Status of the New Federal Code—which was six pages of tiny print in the American Bar Association Journal, 12 ABA. J. 833 (1926), and 16 pages of normal print when republished in a law review, 11 Marq. L. Rev. 130 (1927). It has value to historians as a first-rate explanation of the creation in 1926 of the U.S. Code—the entirety of which fit into one volume at the time.

58. Henry Thring, Practical Legislation: The Composition and Language of Acts of Parliament and Business Documents (1879). The second edition (1902) is the one cited today.

59. Except by a few specialists in legislative drafting or the history of tax legislation.

60. Samuels, supra note 56, at 92 (U.K. statute drafters “remember Thring with admiration”); see also Constantin Stefanou, Drafters, Drafting and the Policy Process, in Drafting Legislation: A Modern Approach 321, 321 (Constantin Stefanou & Helen Xanthaki eds. 2016); Henry Thring—A Hundred Years On, supra note 55, at iii.

61. Helen Xanthaki, Drafting Legislation: Art and Technology of Rules for Regulation 21–32 (2014); Zander, supra note 51, at 9.

62. Russell & Glover, supra note 51, at 58–59.

63. U.K. Cabinet Office, supra note 51, at 49. Also, “[t[he minister in charge of the bill is always welcome to ask the drafter to meet to discuss the bill. Equally the drafter may occasionally request a meeting with the minister.” Id. at 59. Going to the minister amounts to going over the bill team’s head.

64. Page, supra note 46, at 791. Counsels’ “main work is analysis.” Id. at 797. A drafter told Page, “The most important thing is to identify the concept behind the legislation. If the concept is right the detail will hang together. If the concept is wrong, you can faff around as much as you like and you’ll still produce garbage.” Id. at 801.

65. A bill sponsored by the cabinet. “To form a government” means to put together a group of people to be ministers in a new cabinet supported by a majority of the members of the House of Commons.

66. Greenberg, supra note 51, at 182. In practice, the amendment process can be messier than this although Parliamentary Counsel must, in the end, be satisfied with the wording. See id. at 157–58, 182–83.

67. Id. at 24.

68. Id. at 30.

69. Id.

70. There are others. I am not familiar with statute-drafting in German-speaking countries; Japan; China; former Soviet bloc countries; etc.

71. The U.K.'s legislation website can at times be a breeze when compared to Westlaw and Lexis. It’s also free. See text at notes 88–93, infra.

72. The main exceptions are uniform statutes drafted outside legislatures, especially Articles 1 and 2 of the Uniform Commercial Code.

73. Sir William Dale, Legislative Drafting: A New Approach 332 (1977).

74. Id. at 103.

75. See id.

76. If you want to see what the book looks like, find Sveriges Rikes Lag in your phone’s app store. The download is free, but researching within the app requires paying a significant fee to the publisher.

77. The reports are published as Statens Offentliga Utredningar (SOU), some of which are searchable here: https://government.se/legal-documents/ [https://perma.cc/8NVJ-Q5E9] (last visited Dec. 17, 2023). See also Dale, supra note 73, at 98–99.

78. “Legal drafting is . . . the most rigorous form of writing outside of mathematics.” Dickerson, supra note 36, at 635. Math is more than numbers. “A mathematician, like a painter or a poet, is a maker of patterns [of] ideas . . . [fitting] together in a harmonious way.” G.H. Hardy, A Mathematician’s Apology 84–85 (1940; Canto ed. 1992) (italics in original).

    In math, the simplest solution to a difficult problem is said to be elegant. See Steven Goldberg, Mathematical Elegance: An Approachable Guide to Understanding Basic Concepts (2015); Paul Lockhart, A Mathematician’s Lament 23 (2009) (“If there is anything like a unifying aesthetic principle in mathematics, it is this: simple is beautiful.”).

79. Dale, supra note 73, at 87–88.

80. Francis Bennion, How They Do Things in France, 16 Statute L. Rev. 90, 94 (1995) (footnote omitted).

81. Cites are to the N.Y. Penal Law: 15 types of first-degree murder (§ 125.27); five types of aggravated murder (§ 125.26); five types of second-degree murder (§ 125.25); two types of aggravated first-degree manslaughter (125.22); one type of aggravated second-degree manslaughter (§ 126.21); three types of first-degree manslaughter (§ 125.20); two types of second-degree manslaughter (§ 125.15); nine types of aggravated vehicular homicide (§ 125.14); eight types of first-degree vehicular manslaughter (§ 125.13); four types of second-degree vehicular manslaughter (§ 125.12); one type of aggravated criminally negligent homicide (§ 125.11); and one type of criminally negligent homicide (§ 125.10).

82. Cites are to the Swedish Criminal Code (Brottsbalken): six of what we would characterize as murder (BrB 3:1 & 3:3) and six of what we could characterize as manslaughter (BrB 3:2, 3:7 & 3:10).

83. Culture affects the way a profession is practiced. For a vivid and somewhat disturbing description of how, among French physicians, ideas outrank empirically proven facts, see Lynn Payer, Medicine and Culture 35–73 (1996).

84. The Preparation of Legislation: Report of a Committee Appointed by the Lord President of the Council, Chairman the Rt. Hon. Sir. David Renton, Presented to Parliament by the Lord President of the Council by Command of Her Majesty, May 1975. For an explanation of the Renton Report and its effect, see Zander, supra note 51, at 25–45; Sir David Renton, The Legislative Habits of the British Parliament, 5 J. Legis. 7, 9–13 (1978).

85. For example, in section 21 of the Financial Services and Markets Act 2000.

86. See Office of the Parliamentary Counsel, When Laws Become Too Complex: A Review into the Causes of Complex Legislation, at 29–30 (2013); see also Zander, supra note 51, at 43–45.

87. U.K. Cabinet Office, supra note 51, at 26.

88. The National Archives, Legislation, https://www.legislation.gov.uk [https://perma.cc/BWK2-8KLQ] (last visited Dec. 13, 2023).

89. Alison Bertlin, What Works Best for the Reader? A Study on Drafting and Presenting Legislation, 2014 The Loophole–J. Commonwealth Ass’n Legis. Couns. 25, 27.

90. Id.

91. Id.

92. Id. at 28. I find legislation.gov.uk much easier to use than the Westlaw and Lexis we are accustomed to. The interface is less cluttered; the type is easier to read; and there is precise information about how subsequent legislation has changed the statute you are reading. There are no cases. One can imagine a British lawyer going first to legislation.gov.uk to read a statute and then elsewhere to find the cases interpreting it.

93. The Statute of Marlborough. You can easily find Magna Carta (the 1297 version); the Observance of Due Process of Law statute (1368); the original Statute of Frauds, from which the U.S. statutes of frauds are descended (1677); and the English Bill of Rights (1688). The original 1215 Magna Carta was something like a peace treaty between the barons and King John. But the 1297 version is an enactment because King Edward I agreed to it in exchange for Parliament’s approval of a tax.

    And there’s the Fraudulent Mediums Act 1951, which repealed the Witchcraft Act 1735 “so far as still in force” and some aspects of § 4 of the Vagrancy Act 1824. After nine centuries of law-making, occasionally some loose ends need to be tidied up — in this instance combining a consumer protection statute with reminders of the first act of Macbeth and a hint of Dickens.

94. J.R. Spencer, The Drafting of Criminal Legislation: Need It Be So Impenetrable?, 67 Cambridge L.J. 585, 585–93 (2008).

95. Office of the Parliamentary Counsel, supra note 16, at 1.

96. Initiative and Referendum Processes, Nat’l Conf. of State Legislatures, https://www.ncsl.org/research/elections-and-campaigns/initiative-and-referendum-processes.aspx# [https://perma.cc/RY56-KEKG] (last visited Dec. 17, 2023). The National Conference of State Legislatures has state-by-state details, including statutory cites, in a thoughtfully designed webpage. Id.

97. Not covered in Table C are California statutes specific to local government voter initiatives for things like municipal ordinances.

98. How characters move, sit, and stand can reveal the characters’ emotions, especially how they feel about each other and about what other characters have just said or done. Blocking instructions might include phrases like center stage, stage left, and stage right.

99. 3 U.S.C. § 7.

100. Id. § 10–11

101. Id. § 15.

102. Id.

103. Electoral Count Act, Pub. L. No. 49–90, 24 Stat. 373 (1887) (codified as 3 U.S.C § 1–22 and amended 2022). The description of the joint session here is based on the Electoral Count Act.

104. Electoral Count Reform and Presidential Transition Improvement Act of 2022, Pub. L. No. 117-328, § 1–15, 136 Stat. 4461, 5233–46 (part of the Consolidated Appropriations Act, 2023).

105. U.S. Const. Art. 1, § 3.

106. Cosponsors: S.4573 – 117th Congress (2021-2022), Congress, https://www.congress.gov/bill/117th-congress/senate-bill/4573/cosponsors [https://perma.cc/B42J-D69C] (last visited Dec. 14, 2023).

107. 168 Cong. Rec. H8032–H8048 (2022).

108. The modern speed record, which will probably never be broken, is held by the 1933 Emergency Banking Act. Every bank in the country had been closed by state bank regulators, and the economy was operating on cash, barter, and IOUs. Drafting was done in the Treasury Department and was finished around 3:00 in the morning on Thursday, March 9, 1933. The bill was introduced in the Senate at 1:40 in the afternoon and the House about an hour later. It passed in the House at 4:05 and in the Senate at 7:23 in the evening. President Franklin D. Roosevelt signed it into law at 8:36. Total elapsed time in Congress: five hours and forty-three minutes. From drafting to becoming law: about seventeen and a half hours. Not a word of the bill was changed in Congress. The banks began to reopen the following Monday. See Susan Estabrook Kennedy, The Banking Crisis of 1933 175–80 (1973).

109. Among them: the Unleashing American Innovators Act; the Secure 2.0 Act; the Strong Veterans Act; and a bill forbidding installation of TikTok on government-owned devices. See Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, 136 Stat. 4461, 5258–5522.