Last week I received an analysis of the 2006 amendments to the Delaware General Corporation Law. That reminded me of my one manuscript that never came close to becoming a published article—my critique of drafting usages in the DGCL.
I wrote this manuscript about three years ago, when I was flailing around, seeking some way—any way—to turn my interest in drafting into a livelihood. I had the unlikely notion that I should perhaps expand into legislative drafting.
This manuscript explores how categories of language are treated in the DGCL, how DGCL sections are laid out, whether its usages are internally consistent, and how the DGCL rates as prose. It includes “before” and “after” versions of a few subsections. And here’s the gist of it—“The DGCL is known as one of the most advanced and flexible corporation statutes in the country. Although it may be no worse than that of most statutes and is probably better than many, the prose of the DGCL is not up to this standard.”
I was open to the possibility that the more recent amendments to the DGCL might have avoided some or all of the awkward usages found elsewhere in the DGCL, but I saw no sign of a significant change in drafting style over time.
The manuscript suggests how to ensure that future amendments reflect usages that are clear, efficient, and modern.
First, the quality and consistency of any legal drafting is improved if it’s done according to established guidelines. Anyone drafting legislation for consideration by state legislatures in Illinois, Maine, Texas, and various other states has the benefit of a state drafting manual. While the utility of these manuals may vary, any legislation drafted in accordance with such a manual is more likely to reflect approved usages and is more likely to be consistent with other legislation from that state.
Delaware has such a manual, but it was last revised in the 1980s and has been gathering dust. Apparently it’s not consulted by the Council of the Corporation Law Section of the Delaware State Bar Association, which drafts the annual amendments to the DGCL and proposes them to the Delaware General Assembly. Instead, the Corporation Law Council relies on institutional memory—a practice conducive to internal inconsistency and the handing down of deficient usages. (I doubt that in the past three years anything has changed in that regard.) A drafting manual that reflects modern principles of drafting would do much to ensure that future amendments to the DGCL avoid some of the problems I describe in my manuscript.
Second, it might make sense for someone—presumably the Corporation Law Council—to retain an authority on legal drafting to review for clarity and internal consistency any future amendments to the DGCL.
Why pick on the DGCL? Because I’ve consulted the DGCL far more often than any other state statute. But I think it a safe bet that my conclusions and recommendations regarding the DGCL could be applied to pretty much any state and federal legislation.
It’s no surprise that this manuscript was never published. For one thing, it’s not terribly thrilling. Also, it’s aimed at a Delaware readership but—no surprise—it wasn’t met with great acclaim from the Delaware lawyers I consulted. Given that my flirtation with legislative drafting was blessedly brief, I won’t be exhuming the manuscript. But I’d be happy to send a copy to anyone who’d like to see it.