Good Rules, Clear Outcomes: The Art of Drafting for Fairness and Consistency

Adjudicators are as powerful and as limited by the rules that enable them, and systems thrive or die on the strength of the policies, procedures, and frameworks that shape how adjudicators do their work. And where there are adjudicators, there are lawyers who advise them. (And if not, there should be, as this is foundational to good governance.)

Lawyers involved with legislative drafting, who work within adjudicative bodies, or prepare guidance that translate policies into procedures make choices about competing values: fairness and efficiency, flexibility and consistency, discretion and predictability. These choices become rules that define the scope of discretion, the standard of fairness, and the boundaries of authority. They become the scaffolding that good governance and adjudication depend on.

If there is a single non-negotiable in this kind of drafting, it’s clarity.

Adjudicators need to know what the rule is, what the test is, and what the expectations are. Advocates need to be able to advise on it. Parties need to be able to read it and understand what will happen to them. Vague guidance forces everything downstream, to carry out work that should have been done upstream. And clarity doesn’t just mean “plain language,” though that helps. It means:

• Defined terms that consistently work
• Clear decision points for what must be considered, what may be considered, and what must not be considered
• Order of operations and sequencing that makes sense 
• Evidentiary guidance that says what is acceptable, what isn’t, and what can be accepted on a case-by-case basis

When those elements are missing, adjudicators end up improvising. Some will improvise well, some won’t, and in both cases, there will be variation where there should be reliability. Good drafting for adjudicative systems is precise about what must be the same and modest about what can differ. For example, the standard of fairness should not vary from person to person, but the way in which fairness is delivered may. That kind of precision enables a tribunal, a regulator, a statutory decision-maker, or an adjudicator to say to those who appear before them: You may get a different decision-maker, but you won’t get a different standard.

That said, every adjudicative system also needs discretion. This needs to start with being explicit about what discretion is for. It shouldn’t be a catch-all or a mystery bucket. Discretion should be anchored in the human realities of decision-making, like exceptional facts, edge cases, and situations where a rigid application would produce unfair results. Discretion should be available for circumstances where vulnerability matters, where cultural context shifts the meaning of equity, or where compassion and proportionality need space to breathe. Rules that are too rigid can feel mechanical; rules that are too loose can feel arbitrary. The art is in designing frameworks that hold both.

Good practice is to separate the two on purpose:

• Principles and standards—slow to change, high threshold for amendment
• Procedural guidance and operational notes—faster to change, updated to reflect experience
• That way, adjudicators aren’t blindsided, but the system can learn and hold up under scrutiny and strain.

The temptation, once a sensible framework is established, is to treat it as final. That’s understandable. Drafting is hard, consultation is slow, and change can be destabilizing. But adjudicative systems live in time. Issues change. Technology changes. The people appearing before decision-makers change. Adjudicators also learn things that drafters in an office cannot. A policy that made sense when it was implemented may no longer be applicable 10 years later. The test for good governance isn’t “did we draft a comprehensive policy?” It is “did we build in the discipline of regular review?” Because a rule that once seemed efficient may, with experience, become opaque and unworkable. A procedural safeguard that once promoted fairness might, in new circumstances, become an obstacle.

Guidance should be written to stand the test of time but administered as if it will need to be revisited. Different reasonable people should be able to read a policy and reach the same understanding of what it requires. Rules should make sense not only to those who wrote them, but to those who must apply and live with them. That’s how a system earns credibility and trust. 

The rules define the scope of discretion, the standard to be applied, and the boundaries of authority. They become the scaffolding of good governance that adjudication depends on. When guidance is clear, adjudicators can focus on deciding. When it’s not, they are forced into policy-making on the fly. The job for advocates in this space is bigger than simply “write good policies.” It’s:

1. Draft for clarity and reliability.
2. Make explicit where discretion is intended.
3. Separate enduring principles from adjustable procedures.
4. Build in review.
5. Keep adjudicators in the loop.

All of this only works if adjudicators are treated as partners in governance, not just end-users. They see where litigants struggle, where evidence is thin, and where process slows things down for no gain. That experience needs a route back to the drafters. Similarly, counsel who advise adjudicators shouldn’t only be answering “can we?” questions. They should be invited to ask, “should we keep doing it this way?” so that rules stay aligned with purpose. This is a shared project. It’s not about getting it perfect once, but about getting it right over and over, and improving things over time. Because, at its heart, good governance means providing clarity on an ongoing basis, and adjudication needs to be principled and also practical.