Week 7Lesson objectives for this week For the next two weeks we are concerned with formulating solutions that address the causes of the problematic behaviors identified by the ROCCIPI analysis. This involves thinking of alternative possible solutions and then assessing the adequacy of those solutions. This week we will write the “Solutions” part of the research report detailing the measures that are necessary to change the behaviors of the primary role occupants. There are four criteria for an adequate justification for a solution. First, assuming that the primary role occupants behave as the bill prescribes, the research report must show that these new behaviors will likely help overcome the difficulty the bill aims to resolve. Second, the research report must demonstrate that the proposed solution will likely result in implementing agency officials behaving in ways that facilitate the primary role occupants’ efforts to conform to the prescribed behaviors. Third, the research report must canvass alternative possible solutions. Fourth, the drafter must show that the preferred solution is the most cost effective way to resolve the problem. Formulating a solution has four steps. First, the drafter makes a list of potential alternative solutions. Second, in order to choose meaningfully between the alternatives, the drafter elaborates on the details the most promising potential solutions. This requires considering the prescriptions that would be addressed to primary role occupants; the structure and processes of the implementing agency; and the conformity inducing measures that the particular legislative solution would require the implementing agency to apply. The third step is to conduct a cost – benefit analysis of the best alternative solutions. The cost benefit analysis should include social costs and benefits as well as economic costs and benefits. The fourth step is to consider how to finance the various provisions.
Ideas for solutions can come from many sources including foreign law and experience, professional literature, a country’s past experience in attempting to resolve the same or a similar problem, and the drafter’s own ideas. By using the ROCCIPI factors as a checklist (also referred to as a “reverse ROCCIPI analysis”) the drafter can predict the likely success of each alternative by considering whether changes suggested by a particular solution address the problematic behaviors identified in the explanations part of the research. For example, if the research shows that one of the underlying causes of the primary role occupant’s problematic behavior is a lack of “opportunity” to behave differently consider whether the solution proposed by your bill is likely to improve the primary role occupants’ opportunity to act. If the research identified a problem with “process” ask whether your bill is likely to contribute to an improved process. The B Stream session this week is the first of three that aim to increases the participants’ ability to write unambiguous and precise sentences. Ambiguity refers to a legislative sentence that can be understood in more than one way and is unclear which meaning is intended. Writing clearly, precisely and consistently are among the drafter’s primary tasks. A clear, precise and consistent bill adds to the law’s predictability, is more likely to induce the desired behaviors both among the primary role occupants and officials, and helps ensure non-arbitrary decision making. Assignments • Review Manual, Part II, Chapter 4 (especially 99-115, 121-2); and Read Chapter 10 (pp. 255-268).
• Discuss with your group the answers to general questions, Study Guide, Session A-8, slides # 8-9. (Also see the Study Guide, Session B-6.)
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