Nature of assignment: You are unlikely to be asked to draft proposed legislation very often, but having gone through the exercise is a good way to sharpen your sensitivity to possible errors and omissions in proposed legislation drafted by others. Accordingly, this Short Paper assignment asks you to draft a bill to address the following situation.
Situation: You are a member of the staff of a State Senator in your state. There are many lakes and ponds on private land throughout the state. From time to time, children or adults are injured or killed when they fish or swim in such lakes or ponds after having entered without the land owner’s permission. In some such instances, the injured person or the family of the deceased person brings tort suit in state court, claiming that the land owner’s failure to take steps to prevent people from entering onto the land to fish or swim was a failure of care, entitling the plaintiff to recover damages for the injury or death. The decisions of the courts have been highly inconsistent. Some courts have held for the plaintiffs. Others have held for the land owners on the ground that the injured or deceased person caused the problem by trespassing onto the property. Your Senator feels strongly about this issue and has asked you to draft a bill (which the Senator will then introduce) to deal with this matter. The bill should prescribe a clear rule to govern future law suits of this nature.
Assignment: Draft the bill and submit it to me. The submission should be double-spaced. Submit a short memorandum to your Senator explaining choices you made in your drafting of the bill. You are strongly encouraged to use drafting techniques in this week’s reading.
Grading: Include in your bill all of the structural features discussed in the lecture as the “Anatomy of a Public Statute.” You may review these features in the powerpoint. Points will be subtracted if structural features are missing or incorrectly constructed.
The contents of the Operative Provisions of the bill are up to you. You may create an absolute rule (never liable or always liable) or a conditional rule (e.g., liable if the premises have certain characteristics, liable if stated precautions are omitted, liable for some stated percentage – not all of — the damages), etc. Provide enough detail so that the Operative Provisions are coherent and workable. However, you will not lose points if I happen to disagree with the wisdom of the choice you make in the Operative Provisions. For example, if you draft a bill that makes land owners always liable but I think they never should be liable, you will not lose points because of our policy disagreement. You may assume that your Senator supports whichever position you choose to take in the drafted bill. However, you will lose points if your Operative Provisions don’t provide a rule that the courts can clearly and consistently apply. For example, if your Operative Provisions state that land owners will be liable whenever their acts or omissions were unreasonable, your bill would not solve the problem at hand – inconsistent and unpredictable decisionmaking by the courts.
Professionalism counts. Avoid typographical errors, format inconsistencies, errors of grammar, and the like. While legal jargon is sometimes necessary, avoid legalese in favor of clear and concise language. In short, submit something that shows you care about the professional impression your work makes.
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