Making Laws That Work
How Laws Fail and How We Can Do Better
The Book
Making Laws That Work: How Laws Fail and How We Can Do Better seeks to provide insights and tools for legal designers, to improve the quality and effectiveness of the legislation they design.
Part I examines the different ways in which laws fail, and some of the reasons why they fail. In particular, it looks at how pervasive flaws in human decision-making affect the work of legal designers.
Part II explores some of the lessons we can learn from the ways in which laws have failed in the past. Two broad strategies are proposed to reduce the risk that future legislative projects will fail in the same ways. First, adopting a structured approach to identifying the problem that proposed legislation is intended to address, and the ways in which that legislation will affect the behaviour of its various audiences. Second, paying careful attention to the limits of our knowledge and the uncertainty of our predictions, and factoring these into the design of our laws. The book develops the concept of adaptive legislation – legislation designed to enable adjustments to the law over time as more information is acquired, and as the predictions on which the law is based are tested and refined. It describes some of the many forms that adaptive legislation can take. The book also explains the importance of the institutions that implement the law – applying it, interpreting it, enforcing it – and why it is impossible to design effective laws without paying close attention to how these institutions work in practice.
Part III suggests a possible structure for bringing these insights to bear on legislative projects. It contains checklists of questions to ask, and issues to consider, when designing legislation. The checklists are intended to assist in identifying the key risks of failure that are relevant to a particular legislative project, and techniques for managing those risks.
Published by Hart Publishing, Oxford
ISBN: 9781509955374
The Author
David Goddard is a Judge of the New Zealand Court of Appeal.
David Goddard has first class Honours degrees in mathematics from Victoria University of Wellington, and in law from Oxford University where he studied as a Rhodes Scholar. He taught law at Bristol University from 1986 to 1988 before returning to New Zealand to practise law. He was appointed Queen’s Counsel in 2003. Before his appointment to the bench he had a wide-ranging practice with a particular focus on appellate litigation. He also had an extensive involvement in law reform in New Zealand and overseas, advising ministers and government agencies, representing New Zealand in bilateral and multilateral negotiations, and drafting legislation and international agreements. He was a member of the working group appointed by the Prime Ministers of Australia and New Zealand to develop the Trans-Tasman Court Proceedings regime which came into force in Australia and New Zealand in 2013. He was a Vice-President of the Diplomatic Session of the Hague Conference on Private International Law that adopted the Hague Convention on Choice of Court Agreements in 2003, and a member of the drafting committee for that Treaty. He was the Chair of the Diplomatic Session that adopted the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters in July 2019. He has written and presented extensively in his fields of particular interest, including company law, competition law and regulation, contract law, private international law, and public law.
David Goddard spent the 2018-19 academic year at the New York University Law School as a Senior Global Fellow from Practice and Government, writing Making Laws That Work. On his return to New Zealand in July 2019 he was appointed as a Judge of the High Court and of the Court of Appeal.