In reviewing proposed legislation, rather
than trying to formulate an opinion on public policy, we at the Real Property
Law Section can bring our legal expertise to bear on the legislation. We can act
as experts giving advice to the policymakers. We don't have to just consider
whether we support or oppose the legislation. We can say that we “support if
amended” or “oppose if not amended.” And we can always decline to
comment.
Some questions to ask yourself in reviewing legislation:
1.Will the legislation do what it
purports to do?" (rather than "Should this policy be enacted?")
2. Are key statutory terms
defined?
3. Is there a better way to do what it
purports to do?
4. Do we foresee unintended
consequences?
5. What is the effective date? Should it
be delayed (e.g. until after the January NYSBA meetings to allow time to make it
known to our members)?
6. Is the statute retroactive?
7. Does the legislation give rise to a
private right of action? Should it?
8. Who has standing to sue?
9. Is there a statute of limitations? If
so, what is the limitations period?
10. What types of relief are provided
for? What types of relief are/will be available?
11. If a federal statute, is it intended
to preempt state law?
Format for legislation memos:
Memorandum in [Support] [Opposition]
[Support if Amended] [Opposition unless Amended]
[Assembly and/or Senate bill number(s)]
By: [Assemblyman and/or Senator]
AN ACT to [amend the ____ Law], in
relation to [state subject matter]
LAW AND SECTION REFERRED
TO: [____ Law Sections ____]
THE REAL PROPERTY LAW SECTION
[SUPPORTS][OPPOSES][SUPPORTS IF AMENDED][OPPOSES UNLESS AMENDED] THIS
LEGISLATION
[First paragraph of one or two sentences
should succinctly state the position and reasons therefore]
[Body of memo]
The Real Property Law Section [Supports]
[Opposes] [Supports if Amended] [Opposes unless Amended] this bill.
Person(s) who prepared this Memorandum:
[insert name of preparer(s)]
Section Chair: [insert name]
Guidelines for Reviewing Legislation (pdf)
[Guidelines drafted by Karl Holtzschue and Kathleen Lynch
03/06/09]
