REPORT

OF THE

SPECIAL COMMITTEE ON LEGISLATIVE DRAFTING.

To the American Bar Association:

The inaptness, confusion and obscurity of our legislation by nation and state is a subject which has been much referred to in addresses before your Association. Such criticisms have but reflected a feeling shared by practically all members of the Bar and the public generally, that the draftsmanship of much of our statutory law is poor. In your appointment of this Special Committee on Legislative Drafting, your Association recognized the fact that the Bar of the United States as organized in your Association should, if possible, not only call attention to the evils resulting from confused and poorly drawn statutes, but should also help to correct the evil by positive suggestion and constructive action.

The object of our committee is, as we understand it, to promote scientific legislative drafting. With the political, economic or social policy to be expressed by Congress or state legislatures we have nothing to do. Our business is to strive to impress on the members of the Bar, on legislatures, and the people generally, the fact that, given a definite policy to be effected, the proper arrangement and wording of the statute so that the intent may be clear and needless litigation and confusion avoided is a distinct art governed by scientific rules capable of definite expression. It is also our duty to point out to your Association how it may assist in improving what we may call the technic of our statutory law.

In our first report, that of 1913, we stated that our investigations convinced us that legislative reference and drafting departments conducted on proper lines provided efficient agencies to furnish legislatures with scientific and expert assistance in the drafting of legislation. As a result of our report your Association passed a resolution urging the formation, in connection with Congress and the various state legislatures, of official legislative

reference and drafting bureaus. Last year we were able to state that since the publication of our report of 1913 such official agencies had been created in four additional states, while Congress had appropriated $25,000 for legislative reference work under the direction of the Librarian of Congress, and the summary of existing state laws relating to legislative drafting and similar agencies, published as Appendix C of our 1914 report, showed that 22 states had already adopted some such agency.

Unfortunately the early date at which it is necessary to submit this report makes it impossible for us to append hereto, as we were able to do last year, an account of the action taken by state legislatures in relation to legislative drafting and reference bureaus and similar agencies during their recent sessions. During the year, however, your committee communicated with the directors of the various official drafting bureaus and similar agencies, asking them to let us have a short synopsis of their work, together with any observations which they might care to make in regard to the organization of their bureaus, and suggestions for further development which they might believe would be of interest to your Association. Your committee has arranged in Appendix C (infra) the replies received. We also reprint (see Appendix D) that portion of the report of the Joint Special Committee on Legislative Procedure of the Massachusetts Senate and House of Representatives recommending "the establishment of a new office to be called 'clerk of committee' to be an expert upon drafting legislation and to have charge of the detail of committee work," because it contains an excellent statement of the necessity for official expert assistance in the drafting of legislation, and also makes certain suggestions in regard to the organization and work of such official agencies, which are, we believe, worthy of consideration.

It is often asked whether an official drafting agency can be an impartial instrument to assist legislatures, committees and executive officials in preparing bills for submission to the legislature, irrespective of their political connections, of the purposes of the legislation, or the ends desired to be accomplished? Anyone at all familiar with the actual operation of existing drafting and legislative bureaus knows that the services of the expert draftsman connected with such bureaus can be secured by anyone

entitled to such services, irrespective of his political connections or the policy to be expressed in the act which they desire drawn. That an employee of such a bureau should attempt to promote legislation is, of course, conceivable. But the remedy is always self-acting. A drafting bureau, the members of which would so far forget their duties as to seek to promote legislation, must quickly lose public confidence. This fact and the fact that those engaged in the work rapidly acquire, even if they do not possess at the start, a professional code of ethics which regards the promotion of legislation as the one cardinal sin, form a great practical safeguard against any abuse on the part of the members of an official drafting bureau of their position as expert advisers in the technic of legislative drafting.

Your committee also addressed a letter to the secretaries of the different Bar associations, asking them what, if any, assistance their association furnished members of the legislature or others in the drafting of bills. Almost all the replies received were of a negative character. To this, however, there was a notable exception, namely: the action taken by the Nevada Bar Association. At the annual session of that association held in November, 1914, Mr. Hugh H. Brown made a report upon the work of this committee, and also on the establishment of legislative drafting and reference bureaus by different states. The result of his report was an appropriation of money by the Nevada Bar Association for the purpose of creating an unofficial and voluntary legislative drafting and reference bureau to assist the Nevada legislature. Mr. Brown, in his letter to the committee, states:

"The State Bar Association proceeded along these lines: (a) In order that the service might be at the disposal of the legislature throughout the entire session, and without waiting for a tardy enactment on the part of the legislature itself, creating a statutory bureau; and (b) because we felt that a practical demonstration of the efficiency of such a service would be a stronger argument in favor of a statutory enactment than any campaign of solicitation or education we might project."

Your committee has recently received a further report from Mr. Brown on the work of the voluntary bureau thus established during the recent session of the Nevada legislature, in which he states that the work of the unofficial bureau created a favorable impression and that the Nevada Association believes that they

have laid " a good foundation for the establishment by the next session of the legislature of an official bureau. Many of the legislators avail themselves of the unofficial bureau.”

The promotion of legislative drafting and reference bureaus is but one of several ways in which your Association can promote scientific draftsmanship of our statutory law. In our report to your Association in 1913 we pointed out that there is no book written in the English language, in the light of administrative and judicial experience, on legal ways and means by which a given legislative policy can best be rendered effective. Until such a work exists the task of anyone who seeks to draft a statute will remain one of great difficulty, though he may have a clear conception of the policy he desires to have carried out. We believe, and we so expressed ourselves in the report referred to, that the most practical way in which this Association can do its part to promote scientific legislative draftsmanship is to help create a legislative manual containing a collection of directions or suggestions to draftsmen, and model clauses for constantly recurring statutory provisions. We also submitted as Appendix C of the 1913 report, a tentative draft of the contents of such a manual. As a result of our recommendation a resolution was passed by your Association directing this committee to prepare for submission to the Association, if further investigation should show such preparation to be practical, a legislative manual containing suggestions for drafting laws.

Last year, in connection with our report, we submitted as Appendix A and B tentative drafts of portions of the text of the manual on legislative drafting covering, "The Language and Arrangement of Statutes" (Appendix C, report of 1914), and "Provisions for Adoptive Acts" (Appendix B, report of 1914). The tentative text so submitted demonstrated the possibility of creating such a manual, as well as its usefulness, and your Association adopted a resolution directing us to prepare for submission to this Association a manual of legislative drafting. In accordance with this direction we submit this year tentative drafts of portions of the proposed text covering " Administrative Regulations" (see Appendix A), and "Penalties" (see Appendix B).

The work on the proposed manual can from its very nature be done only by those who have had experience in the practical problems dealt with in the text, and given thought and study to their solution. Under the most favorable conditions it will necessarily take several years to complete the text. Only when all the parts are completed and revised will your committee be in a position to ask your Association to give the work the stamp of your official approval. The chief value of the publication in your annual reports of the parts tentatively completed, aside from the fact that use is already being made of them by those charged with the duty of drafting statutes, is the fact that it affords an opportunity to members of your Association and others to submit to the committee criticisms and suggestions. Your committee is especially anxious to emphasize the fact that such criticisms and suggestions are earnestly invited.

"The

In a resolution adopted by your Association in 1913 we were especially directed "to report what, if any, changes in existing legislative procedure, or procedure in connection with the operation of the initiative will tend to the improvement of our statutory law." Last year we were obliged to report: time occupied in the task of preparing (the tentative chapters of the manual on legislative drafting submitted) has been so great as to prevent the members of your committee undertaking a study . . . . of the initiative." This year your com

mittee was informed that Mr. William A. Schnader, of the Philadelphia Bar, had made an elaborate study of the practical operation of the initiative in the states which have adopted that system of legislation. Your committee requested Mr. Schnader to give to the committee any suggestions which he might have for the improvement of the draftsmanship of initiative laws of the Constitutional Amendments. Mr. Schnader kindly complied with our request. It is his opinion that there are but two feasible ways for improving the draftsmanship of initiative laws and amendments:

First: That the indirect system of initiating laws and amendments should be established requiring both laws and amendments to go to the legislature before submission to the voters.

Second: That any state machinery now authorized to assist the legislature in drafting measures be required to extend its aid to those who desire to use the initiative, and that as the drafting