FINAL REPORT

OF THE

SPECIAL COMMITTEE ON LEGISLATIVE DRAFTING.

To the American Bar Association:

1. At the meeting of your Association in 1920, this committee was directed to prepare and submit a final report.

2. The committee was appointed in 1912 to consider whether some efficient agency could be devised to provide the several state legislatures with scientific and expert assistance in the framing of legislation, and report on the existing methods of furnishing such assistance in the preparation of legislative enactments, together with a recommendation as to the part, if any, which the Association should take in the matter.

3. In its first report, presented in 1913, the committee submitted a full summary of existing state laws and rules relating to legislative drafting and reference agencies, together with an analysis of measures designed to establish similar agencies in other states and in Washington. Additional material showing the progress of the movement toward establishing expert drafting services was presented in the reports of 1914, 1915, and 1916.

4. Since then the most notable step in advance has been taken by Congress. The Committee on Ways and Means of the House of Representatives of Congress availed itself of the services of drafting experts in the revision of the Revenue Act, which resulted in the Act of February 24, 1919, and it was so much impressed with the value of these services that it induced Congress to insert as Sec. 1303 of the Act, a provision for the creation of a legislative Drafting Service which, quite distinct from the Legislative Reference Service maintained in the Library of Congress, has become a valuable adjunct of the two Houses of Congress. It is provided that the service shall be under the direction of two draftsmen, one appointed by the president of the Senate, and one by the speaker of the House of Representatives, without reference to political affiliations, and solely on the ground of fitness to perform the duties of the cffice. Each draftsman receives a salary of $5,000 a year. We have now in the national legislature something corresponding to the office of the Parlamentary Counsel to the Treasury in England, the distinguished incumbents of which have been so instrumental in raising legislative drafting to a recognized branch of legal science.

5. The result of the employment of expert draftsmen appears in the improved form of legislation. This is illustrated by a comparison of the Income Tax Act of 1913 with the corresponding sections of the Revenue Act of 1919. Whatever may be said of the provisions of the present act, at least they can be discovered and stated, a thing almost impossible under the obscure and involved arrangement and verbiage of the law of 1913.

6. A sharp distinction may now be made between acts of Congress that show in their form the effect of the new drafting practices, and those that follow the old form. In states like Illinois, the same difference is observable. What in 1914 was a reform devoutly to be wished, has in 1921 become a reform in course of being accomplished.

7. Some of the essentials of form have been laid down in the instructions prepared by the National Conference of Commissioners on Uniform State Laws. They are printed as Appendix

A.

8. In the report of 1913, the committee also recommended that the Association lend its aid to constructive work in producing a collection of directions or suggestions to draftsmen, and of model clauses for constantly recurring statutory provisions and problems. The committee was accordingly instructed to inquire and report what could be done toward that end.

9. In the following years a great deal of work was done by and under the auspices of the committee in collecting material toward the compilation of what might serve as a legislative drafting manual, and from time to time portions of this material were presented in its printed reports. Thus, in 1914, the report contained a statement, comprising twenty-six pages, on the language and arrangement of statutes, and a discussion of submission provisions for adoptive acts, together with a tentative draft of an act providing the procedure for the adoption of statutes or ordinances submitted to popular vote in municipalities. In 1915 the report contained a full analysis of the subjects of administrative regulations and of penalties, and in 1916, an analysis of statutory provisions for licensing or certification. After 1916 the printing of the material collected was discontinued, although the work of collecting it proceeded; and in 1919 there was presented to the Association, a syllabus arranging systematically the points or topics on which it is possible to make statements applicable to statutes irrespective of any particular subject matter, or at least to general classes of statutes.

10. A very considerable amount of illustrative material has been brought together, and the committee suggested in last year's report that its labors might best be concluded by arranging this material and making it available for purposes of legislative draft

ing. The question, however, arises whether any guidance would be afforded by presenting statutory provisions without commenting upon their meaning and effect, and possibly their history. On the other hand, to accompany the provisions by adequate comment would swell the report into a bulky treatise. As a compromise, the committee presents as Appendix C an abstract of the material collected, indicating problems that have arisen and the way in which they have been met, thus enabling those who wish to examine the abstract to inform themselves as to the scope and method of a possible manual of legislative drafting.

11. The abstract should make clear the following points: (1) Doctrines of constitutional law go only a short way toward solving the problems of legislative drafting. (2) Rules, as well as problems, of statutory construction should be studied for the purposes of drafting; but a treatise on drafting would not compete with a treatise on construction. (3) Problems of drafting are different from social and economic problems, and even with regard to specific legal subjects the draftsmen must rely upon the expert knowledge of the specialist in a particular branch of the law; his concern is with those phases of statute law which are common either to all statutes, or to large classes of statutes. 12. The committee ventures to present the following observations concerning the use of statutory precedents:

Statute making is as subject to the influence of precedent as judge-made law, although the authority of precedent is not binding. Of course the statutory precedent is not (except in very rare cases of full committee reports) supported by a reasoned opinion, but it often happens that some statutory form that tends to become stereotyped is directly traceable to a judicial decision. The draftsman in these cases seeks to overcome an adverse, or to conform to a favorable, judicial ruling; the situation is controlled by the fact that in a previous instance a judicial issue was joined between adverse contentions as to the extent of legislative will and power; and the result is that the extreme of legislation tends to be crystallized into its norm.

13. This tendency is particularly marked where professional draftsmen control the form of legislation. Being employed by the legislature, they deem it their duty to push statutory expedients to the furthest extent. Two examples will illustrate this:

(1) In the case of Hale vs. Henkel, 201 U. S. 43, the U. S. Supreme Court decided that the constitutional privilege against self-crimination did not excuse a witness from testifying so as possibly to incriminate the corporation of which he was an official or employee; the court saying that the amendment is limited to a person who shall be compelled, in a criminal case, to be a witness against himself "and if he cannot set up the privilege

of a third person, he certainly cannot set up the privilege of a corporation." Relying upon this decision, draftsmen of statutes have since qualified the terms of the immunity clause approved in Brown vs. Walker, 161 U. S. 591, by excluding corporations from its benefit. Thus the Federal Trade Commission Act provides that no natural person shall be prosecuted on account of anything concerning which he may testify, and the Public Utilities Act of Illinois adds to the immunity clause a proviso that such immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony. Yet it is questionable whether the Supreme Court intended to deny the application of the constitutional privilege to corporations in every case, for it expressly left it open whether a corporation could be called upon to answer a bill of discovery, and a similar question might arise with regard to a report demanded of a corporation.

(2) The Interstate Commerce Act gives to the commission and its examiners power to inspect accounts, records, and memoranda of common carriers covered by the provisions of the act. The Supreme Court of the United States, in U. S. vs. Louisville & Nashville R. R. Co., 236 U. S. 318, held that this power did not extend to ordinary correspondence. In consequence of this decision, Sec. 20 of the Interstate Commerce Act was amended by Sec. 435 of the Transportation Act of 1920 so as to read accounts, records, and memoranda, including all documents, papers and correspondence now or hereafter existing and kept, or required to be kept, by such carriers."

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14. In both these cases the draftsmen were evidently under the impression that it was their duty to remove every obstacle to the exercise of public power, not only where such exercise had been sanctioned by judicial decision, but also obstacles which judicial decisions had recognized and enforced by way of construction and presumably as a matter of policy. It may be that the draftsman senses the intent of the legislature in this respect, but not only is it very doubtful whether this will be the general view of the legal profession, but it is also a grave question whether public interests are in reality furthered by stretching public powers of inquiry to their utmost limit.

15. We are here confronted with one of the crucial tests of the value of a legislative drafting manual, or of a collection of precedents, or even of the status of legislative drafting as a branch of legal science. A number of points may be tentatively suggested: (1) A drafting manual should call attention to the decisions and the statutory precedents intended to meet them; (2) The legislative draftsman must determine whether it is his duty to incorporate extreme expedients as a matter of course, or whether he should submit the point to the decision of the person responsible for the policy of the statute; (3) The student of legislation

would certainly make a great mistake in accepting the utmost stretch of public power as the last word of legal science; he should, on the other hand, be slow to let his own bias control his conclusion; and he should be careful to distinguish cases where the consensus of the best opinion justifies the statement of some principle as judicially well founded, and cases in which the safe and conservative course is to present relevant considerations for and against some form of phrasing, and to point out the different effects of differences in language.

16. In a number of places, the abstract indicates that some problem might be adequately taken care of by a general statutory provision. American legislative practice is quite familiar with general provisions of this kind, which are found in statutory construction or interpretation acts, and in practice codes. A considerable number of drafting rules are capable of being placed in the form of such provisions, and a partial list of subjects to be covered by such rules is given in Appendix B. While such rules would be operative only with regard to legislation subsequently enacted, they might become applicable to a Revision in which they would be incorporated; and by making the rules, like interpretation rules, applicable only in the absence of a contrary legislative intent discoverable in any particular statute, they would tend toward standardizing legislative practice without restricting legislative power.

17. It is out of the question to call upon the Association to form a judgment upon this matter. However, the committee ventures to suggest that the Association invite the National Conference of Commissioners on Uniform State Laws to consider the possibility and advisability of framing a uniform interpretation law serving the purposes indicated. Under the Rules of the Conference, the matter would receive preliminary examination in a Committee on Scope and Program, and there would be no disposition to act otherwise than conservatively.

Your committee therefore submits the following resolutions: Resolved, That the Final Report of the Special Committee on Legislative Drafting be accepted and approved, and be it further

Resolved, That the National Conference of Commissioners on Uniform State Laws be requested to examine the recommendation contained in Paragraph 16 of the Report, with a view to such action as it may deem advisable to take; and be it further

Resolved, That the Special Committee on Legislative Drafting be discharged.

WILLIAM DRAPER LEWIS, Chairman,

ERNST FREUND,

SAMUEL WILLISTON,

JAMES S. SEXTON,

CHARLES THADDEUS TERRY.