On the Science of Lawmaking

Yesterday in Denver, there was another meeting on the proposed dyslexia legislation. The State Representative that heads this initiative, made an interesting if inadvertent admission. "This is the first time, - he said, - that I develop a bill with various groups represented around the table. Usually, a special interest group just comes up with a draft of the new law." He was a bit frustrated, because there were a lot of ideas, and some disagreements, but there was no specific language he could put in a bill. Yet this remark made me think about how laws are developed.

Many major professional activities have recently move toward some rational way of decision-making. There is the Evidence-Based Medicine, God knows education has been struggling with accountability, and outcome-based education. The best practices movement in business, programming, construction, insurance, and accounting slowly but surely change the way people do things. However, lawmaking remains a game of competing rhetoric, trial and error, and special interest influence. Laws are passed constantly, but their effectiveness is often unknown or minimal. The same is true about public policies that interpret and implement the laws. The major example is the No Child Left Behind act, if you discount the Texas Miracle (and you should). It was premised on the idea that raising accountability plank will improve educational outcomes. It seems obvious and self-evident, but is actually an untested idea. Colorado Governor Ritter just came up with another "most revolutionary shift in education policy" in years. Not that I am opposed to it necessarily, but I am cautious about another set of laws that will inevitably follow, the revision of the Colorado Content Model standards, and the work of revamping K-20 curriculum to meet them. Perhaps if someone shown me some evidence it's going to make any difference, I'd be less skeptical. But no, people want me to take their word for it, and I just have hard time doing it.

People who write laws are very smart, well-meaning, and experienced; no doubt about this. Yet all those doctors who for years prescribed drinking more fluid to flu sufferers (does not help, actually), are also all smart and experienced. It's just that the scientific methods allow us to go beyond the individual life experiences, which are statistically speaking, are often useless.

Let me begin a rough list of law-making standards here; perhaps people with better knowledge of law and policy can expand or dispute these. I will turn them into questions. I believe each bill introduced should have an accompanying package of materials questions like these should be answered. Right now, nothing like this is available; so the proposed laws maybe great or poor, we simply do not know. It is expensive, and perhaps it is time there were private independent law audit agencies, like in accounting, that would study these things. it might be expensive, but no more expensive than a poorely conceived law and policy. I know some of the questions below are asked one way or another; that's not the point. What I want is a set of standards, with some evidence of meeting them.

1. Is there an existing law on the books that already covers the same ground? If yes, why has it been ineffective? How is this one better?
   
2. Is the intended result of the law clearly defined? Is it measurable?
   
3. Is the effectiveness evaluation mechanism built into the law and adequately structured and funded?
   
4. Is there a sunset clause that allows ineffective law to expire if it has not shown effectiveness?
   
5. Has a similar law been passed by another state or another country? If yes, is there any evidence it worked?
   
6. Have unintended negative consequences been systematically considered and ruled out?
   
7. If negative consequences are unavoidable, does the law include measures for mitigating it?
   
8. Does expected benefit outweigh the expected loss?
   
9. Is it feasible to comply with the law?
   
10. Can compliance be actually measured, detected, and enforced?
    
11. What is the cost of compliance, including the reporting burden cost? Is there a funding mechanism to cover it?
    
12. Who specifically has written the draft of this bill (names, affiliations)?
    
13. Who is likely to benefit and who is likely to lose?
    
14. If the law is written by those who is likely to benefit, are the losers' representatives consulted in advance?
    
15. Are the opponents arguments included?
    
16. How does the law help or hurt its sponsor's political career?
    
17. Which agencies and institutions will carry the burden of compliance and enforcement? Were they consulted on the law's feasibility, and compliance cost?