We caught up with Kimberly Faith and Warren Burke, two of the drivers of iLegis 2022 – the International Conference on Legislation and Law Reform, set for Nov. 3-4 in Washington D.C. – who also serve as advisers and instructors at the International Law Institute. When they’re not helping to plan seminars and course work on legislative drafting, they’re busy working as drafters – which can put them in the midst of technology challenges and transformations. Burke is a senior counsel at the Office of the Legislative Counsel of the U.S. House of Representatives and regularly teaches legislative drafting for multiple organizations. Faith served as an assistant counsel in the same office and she’s now drafting for a foreign government and regularly teaching courses on issues in law and government. The interview was conducted by Hudson Hollister, founder and CEO of HData and former president of the Data Coalition, and Mark Stodder, president of Xcential Legislative Technologies. This transcript has been edited for clarity.
Hudson Hollister
Kimberly Faith and Warren Burke of the International Law Institute, thank you so much for spending some time with us.
Warren Burke
Thank you for inviting us.
Kimberly Faith
Yes, thank you.
Hollister
Maybe Kimberly first, followed by Warren: We would love to get a brief overview of your work with the ILI. What brought you into it, and where the passion for legislative drafting may have originated.
Faith
The International Law Institute is an organization based in Washington DC, that aims to support the rule of law by providing training programs and publications that bring in people from around the world to really assist different countries in improving their legislative and other systems. So we are serving as advisors for ILI’s courses on legislative drafting and advanced legislative drafting.
Burke
I can jump in with the question about the passion for legislative drafting going way back.
I think the big gap here is that law schools essentially don’t teach legislative drafting. They don’t teach legislative lawyering almost at all. And so yeah, I did not come to the job with a passion for legislative drafting, almost nobody does. I wasn’t even looking for a legislative job, I sort of fell into it, as so many people do. And then once you become involved, you become passionate, and you realize the importance of it. And you start to become more and more aware of the dearth of opportunities for education and training and interaction among people like you. Within the legal community, we’re not standard litigators, or transactional lawyers. And so I think that’s a big part of the reason why Kimberly and I both work so hard on training opportunities and international conferences on legislation and law reform. Because it’s such a distinct little subcommunity, you need to go out of your way to create opportunities for this community to interact and learn.
Faith
Let me add to that. Warren and I have about a 10 to 15 years difference in the time that we went to law school. And in that time period, the amount of focus that is paid to legislation as a substantive topic has increased. So I did actually have legislative drafting experience in law school, in a legislative clinic – there are now somewhere between 10 and 20 legislative clinics across the country. That’s nowhere near the amount compared to judicial practice clinics, like domestic violence clinics, or immigration clinics or other areas of law. But it is a growing area that law schools are focusing on.
My legislative drafting experience comes from a variety of different places, which is also why I’m interested in the International Law Institute. We have these professionals coming in from different countries who want to learn about legislative drafting, and we don’t need to teach them just from a U.S.-centric standpoint – there are universal principles that apply in every English-speaking country, really. And one of the goals of this course is to really expand it so that we can better serve the participants coming in by giving them a more broad and worldly perspective on what legislative drafting is.
Stodder
Thinking about the community of drafters you work with, from the other side of the globe, can you describe some of the challenges that you hear about with drafting technology? Talk about some of some of the challenges you see with the technology to create the law and maintain the law.
Faith
Yes, there are many different aspects to this. I’ve drafted from both the perspective of having a very expansive system, with custom-made software, to having to scrape it together in a Word program. So Warren, sorry, I interrupt – you go ahead.
Burke
I was just going to say, the effect of technology on legislation runs throughout the entire process. I had some experience in a workshop abroad once with a country that had essentially lost much of its drafting capacity and no longer maintained its laws in a code form anymore during a civil war. So if you suddenly can’t research the law – that experience really highlighted for me the importance of being able to go somewhere online, and research the law and see what the heck the law is. That’s a prerequisite to legislative drafting. Then you come to the secondary question of, well, in that particular place, do they even have computers, what sort of software are they using and standardization and so forth.
Faith
I think there’s a lot of movement right now on the state level for the desire for legislative drafting software, especially since Coronavirus came in and many of the states were still using paper-based processes for legislative drafting. With their employees all going to remote work, they realized they needed electronic processes for that, something more than just getting the piece of paper and scanning it into the computer, then having the person on the other end print it out. So I think that’s where we’re going to see a lot of change in the next five years, with some of the smaller jurisdictions needing legislative software. It’s important to have that software be accessible to these jurisdictions and be affordable.
Stodder
To what extent have changes in drafting technology changed the substance of lawmaking?
Burke
That’s a good question. I do not think that they have changed the substance, but they have changed some things – for example, with our system, they have changed how we do amendment instructions a little bit. Our software for producing auto generating red lines still does not understand all the various instructions I use. So eventually, you start to try a little bit to conform your amendment instructions to what the computer recognizes. But that’s not actually the substance of how the law will ultimately read.
Stodder
As some technologies have moved forward, have you seen some of the processes around drafting change? As technology makes drafting more efficient, that can have a ripple effect where the expectations of your clients can change. Have either of you seen anything like that start to happen?
Burke
My office started using Teams, and then the pandemic followed shortly afterwards. On Teams, I started to draft in XML [on the current bill drafting platform at the U.S. House] much more with my clients simultaneously. So now my clients see the program, which they never saw before. Before that I was bringing some people in for meetings in conference rooms, but it was much more difficult. It’s actually easier to do a drafting session with two or three people, a small number of people, in a screenshare situation. I find I can flip back and forth to the Compilations to Google, and to the draft, and I work in the draft with colleagues and clients. Often my clients are very amazed by the software itself. That’s true.
Stodder
Kimberly, you’re now able to work efficiently with clients on the other side of the planet.
Faith
Yes, that’s a great point. Technology has made the whole legislative process different. I am able to use Zoom as a platform to talk to people. Google Docs is actually a huge part of how some lesser developed countries run their legislative systems, because you can have multiple people working on a Google Doc at the same time. In the absence of actual legislative drafting software, that’s the free option that’s available, as are free cloud-based systems. It’s been very interesting to see how that technology is rapidly changing in places that not too long ago were paper-based.
Burke
And since Kimberly is raising Google Docs, I will raise an opposite concern that has arisen about the technology. And that is that it’s harder to lock down drafts. It used to be that we could send out a PDF, and we would know that nobody had meddled with it when it came back for edits. But now, people are able to edit PDFs in a way that we don’t know who the last author of the file was. That has complicated our lives as legislative drafters.
Faith
Well, that’s one area that legislative software should be able to address in the future, if you get software that allows collaboration. So you have that collaboration between different drafters who are working on the same piece of legislation, ideally in a way that is transparent to the clients or the stakeholders. And that software can actually account for where changes are coming from, which I always thought was one of the downsides of the XML programs at the federal level is that it was not immediately apparent who the changes were coming from. You would think you could go back and look at history, but it’s not as obvious as it could be. If we were to take legislative drafting as a pure pursuit, untethered from the constraints of whatever technology is being used to draft legislation, what are the functionalities that we would expect to see?
Burke
Now, while I’m still thinking about the comment that Kimberly just made, because it is important, there is a balance to be achieved here. We were talking earlier about making the software available beyond the professional drafting offices – we could also be talking about committee staff for instance. The Appropriations Committee does a lot of its own drafting and has XML. What if everyone in the country could have easy access to the software and produce legislative text? Would that bet a good thing? Or a bad thing? I don’t know. I mean, how do you ensure quality control? The sort of transparency which Kimberly just described could help to ensure the draft is internally consistent and of high quality.
Stodder
But it comes down to keeping the pen in the professional drafters’ hand, because you’re the one who is able to execute the policy idea, technically, and make it technically correct.
Faith
Exactly. There must be something that holds the legislation together in all of its complexity.
Burke
A lot of times speed is an issue. If the draft has come from, say, the Senate Legislative Counsel’s Office, that’s one thing. If it’s come from someone on the outside, that’s a different product that needs to be reviewed more closely. And you may not have much time to discern between the two.
Faith
Right now everyone has access to Word and you can use Word to create a very real-looking piece of legislation as if it was produced in the XML system. There will still be lobbyists and interest groups putting out legislation, model law projects putting out legislation – it is up to the legislative processes and the legislative drafters to put some barrier between what is coming in from public sources and what is actually getting introduced and enacted to make sure that it is high-quality. I’ll also quickly add in the importance of the legislation being accessible to the public, amendments being presented in a manner that is understandable by the policy-makers, and using software that minimizes the time spent doing non-legal tasks like formatting.
Stodder
What makes you optimistic about the future of legislative drafting around the world, and advancements in technology?
Burke
I would say that the level of exchange is clearly increasing. As Kimberly said earlier, the level of education within law schools and other settings is clearly increasing. In my job, in particular, what I mentioned earlier about the fact that I’m drafting with clients more than ever, that is a key component, too, because it’s not enough to just have a legislative drafting service. In an institution that understands legislative drafting, you have to also have the legislative staff distinguish between good drafting and bad drafting. When that happens, they can build in the time it takes to produce a high-quality legislative draft. I think at the moment we are trending toward a greater degree of exchange and education and understanding. So, hopefully, that continues. And technology has been a part of that, like with screen sharing.
I’ll give you a pessimistic note too, though. The same technological forces are also our enemy, in the sense that they are what have facilitated the volume and time demands that we currently have. We no longer live in a culture where, like in the 1980s, a client would come down to the office and meet in the conference room every time to make significant changes to a draft – now things are done by email and sometimes very rapidly. That’s a trend that works against the quality and deliberation that goes into legislative drafting and somewhat counterbalances the increased understanding and technological advancement.
Stodder
You’re losing the time to think.
Burke
Exactly. Sometimes your ideas have to percolate. It used to be that you could take a few days – sometimes you actually need to percolate on it for a few days.
Stodder
A lot of great legislation has been drafted while you’re on a walk, I would imagine.
Burke
Yes, exactly.
Hollister
We’ll close it there. Many thanks to Kimberly Faith and Warren Burke.
