Legislative Drafting

Author(s): Thomas I. Parkinson

Source: Proceedings of the Academy of Political Science in the City of New York, Vol. 3,
No. 2, Efficient Government (Jan., 1913), pp. 142-154
Published by: The Academy of Political Science
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 LEGISLATIVE DRAFTINGI

TIOMAS I. PARKINSON

Legislative Drafting Bureau

T HE need for better drafted legislation has b

frequently and forcibly by prominent lawy
ical scientists. The quantity and quality o
law, federal and state, has been the subject of vig
for many years. There exists a well-founded
found frequent expression at the recent meeting
can Bar Association, that the popular disconten
the tendency of our courts to declare unconstitut
ineffective by interpretation legislation enacted
isting social and industrial evils can be traced dire
that much of our so-called social legislation is ha
ill-considered, and thrown on the statute book wi
study of constitutional limitations, existing s
phraseology of the principles and rules necessary
to the intentions of its proponents.
The Federal Employers' Liability Act of I90
apply only to workmen engaged in interstate com
inaptly worded that the courts held that it inclu
ployes engaged in intrastate commerce, and for
unconstitutional.2 In I908 the same act was re-enacted in
words which precisely limited its effect to workmen engaged in
interstate commerce, and in this form it has recently been held
constitutional.3 Senator Sutherland, in a paper before the bar
association,4 expressed the opinion that the decision in the Ives
case might have been different if the New York Workmen's
Compensation Law 5 had been more carefully drafted.
1 Read at the meeting of the Academy of Political Science, October 26, I912.
2 See Employers' Liability Cases, 207 U. S. 463.
"See Second Employers' Liability Cases, 223 U. S. I.
4 American Bar Association Report, I912.
5Ch. 674 Laws of Igio; declared unconstitutional in Ives v. South Buffalo Rail.
way Co., 201 N. Y. 271.
(190)

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 LEGISLATIVE DRAFTING
I43

The subject of Prof. Reinsch's paper, this aft

sizes another need for accurate drafting. If th
be made a successful method of legislating, me
vided for the scientific preparation of initiate
must be reasonably within the comprehension
they are to be enacted or rejected intellige
"jokers" are less likely to be detected by th
the people than by committees of the legisla
tected, are more dangerous because the bills ca
in the course of discussion and before final act
be in the legislature.
My subject is not the need for or the desirab
drafted statutes, but the means by which t
The scientific preparation of a statute involves
I. Knowledge of conditions proposed to be reg
termination of the exact evils requiring regulat
2. Determination of the nature of the reg
and the precise principles or rules which will e
ulation.

3. Phraseology of the new principles or rules and of neces-

sary administrative provisions in apt and precise language which
will fit them into existing principles of constitutional and statute
law and make them reasonably clear to the executive and judi-
cial officers who are to enforce them.

So-called practical legislators are fond of dividing these prob-

lems into: (I) matters of substance, which are for the legislator,
not for the drafter, and (2) matters of form, which may be dele-
gated to the drafter. The distinction, however, is of little value,
for changes in phraseology frequently result in changes in policy.
Policies determined upon in conference are often hard to recog-
nize when they come from the pen of the drafter. No such
division of the problems of preparing legislation is possible.
So-called matters of substance and matters of form go hand in
hand, and if the problems of legislation are to be solved wisely
and effectively, the legislator and the expert drafter must work
together.

1 I Initiative and Referendum," by Prof. Paul S. Reinsch, University of Wisconsin.

See p. 203, infra.
(191)

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 EFFICIENT GOVERNMENT [VOL. III
I44

Prof. John W. Patton, of the University of Pennsylvania Law

School, says:

Legislative action, however, should be based upon demonstrated need,

careful study of the proposed remedy in substance, of its constitution-
ality, of the meaning of every word used in a proposed act, with a care-
ful examination of existing decisions as well as statutes. Knowledge
of law as well as of the English language is required, and the pen of
one who thinks he has a facility for legislative expression should indeed
" make haste slowly." 1

In workmen's compensation legislation, for example, the leg-

islator, if he performs his legislative duty seriously, must first
study existing employers' liability law, and the evils, if any, pro-
duced by its operation. He must analyze these evils and con-
sider the possible methods of remedying them, and for this
purpose he ought to know and appreciate the methods by which
in other states or countries similar evils have been remedied.
Having decided that the compensation system offers the best
means of doing justice, there remain for his decision important
questions of policy involved in working out the details of such
a scheme. For example, shall the scheme apply in all employ-
ments, in all with certain exceptions, or in certain specified em-
ployments selected because of their extra hazard or otherwise?
Are all injuries in the course of employment to be compensated,
or are certain injuries, such as those caused by an employe's own
deliberate act, to be excepted ? Upon what basis shall the com-
pensation be computed, and how shall the computation be made,
and under what conditions shall it be paid? What shall be the
procedure to determine controverted questions? What, if any,
administrative organization is required for the proper enforce-
ment of the scheme? Every one of these problems involves
the determination of a multitude of detailed questions of policy
before the precise limits of the rights and liabilities created by
the act are defined in such manner that employer, employe, ad-
ministrative officer and the court may know when and to what
extent the legislature intended that A, an employer, should

"1 Festina Lente," Penna. Law Rev., vol. 59, p. 214.

(192)

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No. 2] LEGISLATIVE DRAFTING I45

compensate B, his employe, in case the latter is

course of his employment.
The foregoing are frequently described as ques
with which the drafter should have nothing
solely for the legislator. Theoretically, this
these questions were carefully weighed and d
legislator there would be nothing left for the dr
the legislative decision into language. Practic
the great majority of these questions of policy d
the legislator until the drafter in the detailed st
legislative intent uncovers the numerous instanc
legislative intent has not been applied.
Determination of these questions of policy by
pletes the legislative task. There remain quest
tutionality and the selection of devices, such
elective scheme, to avoid constitutional restrictio
ment of the statutory scheme decided upon
statute law on the same or similar subjects; and,
lection of the language which will carry the stat
into a statute at once constitutional and effectiv
poses for which it was intended.
Mere phraseology of a statute is itself a difficu
of the imperfections and inadequacies of langu
ful use and the inability of the human mind
the contingencies which will arise in the daily op
law.' For this reason it is sometimes said that statutes should
declare principles and not go into detail.
If important legislation is to be stated effectively in general
principles it can be done only after very careful consideration
by the drafters of all questions of detail and the selection
of such general language as is suited precisely to the develop-
ment and application of the general principle to the numerous
particular instances to which it will be applied. Otherwise, the
act is not truly general; it is simply incomplete.
There is an impression in this country that the English

' Compare remarks of F. Vaughn Hawkins, Esq., reprinted in Thayer's Prelimin-

ary Treatise on Evidence, appendix C, p. 585.
(193)

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I46 EFFICIENT GOVERNMENT [VOL. III

Workmen's Compensation Act is a good examp

drafted act which states only general principles. I
Lysons vs. Knowles,' Lord Davey, in rendering h
the House of Lords, referred to the act of 1897 as
ordinary ill-drawn act," and said:

The difficulty really arises from this-that the draftsma

not worked out on paper into legislative language the sc
had in his head, and it looks very much as if the act h
framed from notes of legislative intention and had no
into the proper legislative language. Cases which ha
cases which are likely to arise, appear not to have been
but apparently were supposed to be covered by the gen
used in the act.

The English Compensation Act of 1897 was expressed in 12 Y

printed pages; the amended act of I906 required 24 pages,
and in addition there are now more than 150 pages of statutory
rules and regulations 2 which have the force of law. Compen-
sation, under the act of 1897, was based on " average weekly
earnings "3 without any indication of the method of computing
such earnings. This computation gave rise to so many diffi-
culties in the cases which arose under the act that the drafters
of the amended act of 1906 used nearly 400 additional words to
explain the method of computing average earnings,4 a total of
400 words in the place of the 3 words in the original act. Th
German Insurance Code of 9I I represents a like expansion o
the original laws.5
The tendency to couch statutes in general terms and to leave
details of their administration to executive discretion simpl
shifts to executive officers the burden of applying the general
principle to a particular case. This puts off the difficulty but

'84 L. T. R. 65, vol. 3, Workmen's Compensation Cases (Minton-Senhouse),

p. I (1901).
2The act and rules are reprinted in the appendix to Ruegg's Employers' Liabilit
and Workmen's Compensation (190o), pp. 688-868.
3First Schedule, sec. I, b.
4First Schedule, section i, clauses (I) and (2).
5 See translation in Bulletin No. 96 of United States Bureau of Labor.
(I94)

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No. 2] LEGISLATIVE DRAFTING
I47

does not overcome it; for if the law is to b

clear, executive officers must draft the rules a
prescribe the schedules, reports and records, pr
has been omitted from the statute. In this cou
because of the general impression that such
tions, supplementing general statutes, represe
tional delegation of legislative power, it usually
general principle is applied in hit-or-miss fash
ticular case as it arises. The New York labo
" good and sufficient ventilation" in facto
rules have been prescribed and the act is p
forceable.

Moreover, when a general statute is well drawn, the men who

have worked out its provisions and selected the language in
which to state them are in a better position to state the specific
rules for the application of the act to particular instances than
are administrative and judicial officers before whom it comes as
a totally new and often unconsidered matter. The drafters of
a workmen's compensation act, for example, if they have done
their work well, ought to know whether free house rent re-
ceived by an employe is to be included in the computation of
his wages for the purpose of determining his compensation in
case of injury, and if they fail to state in their act whether it is
to be included or not, employers, employes, insurance com-
panies and courts are going to spend a great deal of time in
attempting to discover whether the legislature intended to
include or exclude this item, and no one is ever going to know
what the legislature did intend until some individuals have car-
ried to the court of last resort a case involving the question,
and then the chances are even that the court will guess wrong
and that the intent of the legislature if it had been expressed
would have been directly opposite. For example, take the
Sherman anti-trust law, the meaning of which was in doubt for
twenty years. There are many people who, if they had been
placed in the position of the Supreme Court, would probably
have guessed differently as to the Congressional intent.

New York Consolidated laws, ch. 31, sec. 86.

(I95)

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148 EFFICIENT GOVERNMENT [VOL. III

My point is not that statutes should provide f

able circumstances. I do not expect to see a p
As was said by Judge Dean: "Laws seem to
grown about as often as men are."' But this d
putting on to the statute books legislation which
complete. The New Jersey Compensation Act
sation on wages and contains no definition of the
The slightest consideration of the operation o
disclose to its drafters the absolute certainty th
days of its enactment cases would arise involvin
"How are wages to be determined? "
It seems foolish to omit such provisions merel
are called detailed provisions. Indeed, it is gen
lawyers and other people who attempt to prepar
ments on subjects of which they know little pr
general language, and it usually happens that th
eration and study one gives to the preparation o
ument the less general language is found in it
language is in direct proportion to the writer's k
subject matter and its problems.
Commenting on the detail of some statutes
Lehmann, in his President's address before the American Bar
Association,3 cited a Kansas act requiring for each bed in a
public inn " clean sheets of sufficient width and length to reach
the entire width and length of the bed, and with the upper sheet
to be of sufficient length to fold back over the bedding at the
upper end or head of the bed," and observed that the drafter
forgot to require that the sheet be long enough for tucking in at
the foot. These details may seem petty, but suppose that the
statute had provided in general terms for sanitary bed cover-
ings, would the administrative officers have carved out of this an
enforceable rule which would have effected the purposes of the
act, and what would the ordinary judge have said with respect
to the meaning and effect of this act had it come before his

In Waters v. Wolf, 162 Pa. I67.

2Ch. 95, Laws of z9rz.
3 American Bar Associaiion Report, 1909.
(196)

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No. 21 LEGISLATI VE DRAFTING I49

court for application? Would he not have quoted t

statutes in derogation of the common law must b
strictly, and that as the statute said nothing about th
the breadth of sheets it was not to be interpreted as
with individual liberty more than its language abs
quired?
Definitions are helpful in attaining precision, but they must
be skilfully used. The New Jersey Compensation Act defines
"wilful negligence " as " deliberate act or deliberate failure to
act." Literally, this means that a man can escape the charge
of negligence only by careless action or inaction.
Blunders in legislative language are varied. They run from
the ridiculous to the serious. Congress, for example, enacted:
" That no sponges taken from (specified) waters shall be
landed, delivered, cured or offered for sale at any port or place
in the United States of a smaller size than four inches in

diameter."2 How many of our ports could answer the descr

tion of less than four inches in diameter? The Illinois Com-
pensation Act for disfigurement of an employe, grants him one-
fourth of his compensation in case of death.3 The second
draft of a compensation act, prepared by the Pennsylvania
commission, granted compensation to widows of killed work-
men, and defined widow to include "only those who are liv-
ing with the decedent at the time of his death." When it
was pointed out that this suggestion of a plurality of wives
sounded more like Utah than Pennsylvania, the commission was
much impressed with the necessity for a change in the wording,
and after retiring into executive session produced the following,
which appears in its latest printed draft: The term widow shall
include " only a widow living with the decedent at the time of
his death." 4 This may relieve the Pennsylvania workman from
the insinuation of Mormonism, but if the intent is to give com-
pensation to the decedent's widow only, why not say: "shall
1 Sec. 3, par. 23.
U. S. Statutes at Large, v. 34, p. 313.
3Act of June o1, 1911, sec. 5, c.
4 Industrial Accidents Commission of Pennsylvania, 4th draft of compensation act,
art. II, sec. 6, cl. 1o.
(I97)

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 EFFICIENT GOVERNMENT [VOL. III
150

include only the decedent's wife, living with hi

his death?"

Language which reads smoothly does not always represen

good drafting. As a member of Congress put it, "Like
Browning's poetry it may be well said and yet not say any-
thing" to the ordinary reader.
The framers of important legislation should have the benefit
of the experience of other states and countries in the same
field. They should know the legislation of other states and its
operation. Mere copying of foreign legislation will not suffice.
Drafters of American compensation acts have repeatedly copied
from the English act the words "injuries arising out of and in
the course of employment." Apparently, it is assumed that the
meaning of these words has been fixed by the English courts
and is well understood. Prof. Francis H. Bohlen recently
demonstrated' that this phrase, instead of having a definite and
fixed meaning, is one of the most prolific sources of doubt and
litigation in the English act. Mere copying in the Nevada
Compensation Act resulted in putting into the very first section
an important reference to " the preceding section of this act."2
Legislation is constantly enacted in ignorance of existing laws.
For example, on February 14, 1903, Congress passed an act
transferring the immigration duties of the Secretary of the
Treasury to the Secretary of Commerce and Labor.3 On March
3 of the same year Congress passed an immigration act, in
many clauses of which duties were imposed on the Secretary of
the Treasury.4 A joint resolution was subsequently necessary to
correct this blunder.5

There appears in a congressional appropriation bill an appro-

priation for publishing the laws in newspapers, although such
publication had been expressly prohibited four or five times
during the same session.6
I Harvard Law Rev., vol. 25 (1912), pp. 328, 401, 517.
2 Laws of r9I,, ch. 183, sec. I.
3 Statutes at Large, vol. 32, p. 825.
4Ibid., vol. 32, p. 1213.
5Ibid., vol. 33, p. 591.
6 bid., vol. I8, p. 349.
(198)

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No. 2] LEGISLA TIVE DRAFTING
ISI

In I912 the New York legislature amended a s

labor law. Later, at the same session, the same section was
again amended without reference to the previous amendment.'
The question arises whether the amendment incorporated in the
first act of 1912, which is not contained in the second amend-
ment of I912, is or is not part of the labor law of the state?
Another and frequent type of bad drafting is the statement
of the same idea in different words in the same act. In one section

of the New Jersey Compensation Act there are no less than four
different methods of stating the same computation of time.2
The obvious suggestion for the correction of many of our
political ills, including unscientific statutes, is the election of
better men to the legislature. A good legislator, however,
is not necessarily a good drafter; and a legislator who is a good
drafter is so busy with legislative policies on a host of subjects
that he has little time to devote to the wording of laws. Mark
Twain said that a man who attempts to study German has not
much time for anything else. Drafting statutes is much like
learning German.
John Stuart Mill declared: "There is hardly any kind of in-
tellectual work which so much needs to be done, not only by
experienced and exercised minds, but by minds trained to the
task through long and laborious study, as the business of making
laws."3 Our legislators are elected to voice for brief periods
the political sentiment of their communities and their attention
is largely confined to this field of activity. Having in mind the
statement of Mill, it is apparent that the selection of legislators
by the elective method does not insure the selection of men of
"experienced" minds for making written law; that the fre-
quency of election fails to assure any opportunity for a pro-
longed experience in lawmaking; and that the nature of the
political work which legislators must perform to gain and keep
their seats precludes them from and unfits them for "long
and laborious study."

1Laws of z9O2, ch. 337 and ch. 543.

2Laws of I9Ir, ch. 95, sec. II, par. 15.
SRepresentative Government, People's Edition, 1876, p. 39.
(199)

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 EFFICIENT GOVERNMENT [VOL. Ill
152

Great Britain has solved the drafting probl

creating the office of parliamentary couns
government bills are drafted. Practical legisl
in this country have an indefinite notion that t
expert official drafting agency would in som
with the ordinary functions of the legislator.
of the legislator is to make known the social
rule of law at a given time. It does not necessar
phrasing of that rule. Originally, the English P
tioned the king for the enactment of laws;
counsellors, if the petition were granted, determ
ology of the law. Representative legislators elec
vote may voice the wishes of their constituent
the general policy which shall govern the co
particular subject; but, ordinarily, they are
skilled in the handling of the English language
of law-making, and in the knowledge of existin
and statute law, to determine the precise ph
rules which shall make effective the policie
upon.
The consequence of using unprecise language in a statute is a
loss of that effective control over the policies of legislation
which the legislature is empowered constitutionally to exercise
to the entire exclusion of both the executive and judicial
branches of the government. Moreover, a vast amount of time
and painstaking care is expended by administrative officers,
lawyers, and courts in the determination of the exact meaning
of a statute or of its words or phrases. In all but one or two of
the cases which have been litigated under the California Com-
pensation Act during the first year of its operation "the issue
was upon the construction of the act and not the fact of disability
or the extent of the injury.'
The conclusion seems inevitable that every legislative body
ought to be supplied with a force of carefully-trained lawyers
whose duty it shall be to give attention to these problems before
a statute is cast in its final form.

1Article by A. J. Pillsbury, member of Industrial Accident Board of California, in

The California Outlook, Saturday, Oct. 5, I912.
(200)

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No. 2] LEGISLA TIVE DRAFTING I53

Definite proposals are now being made to furnish

with expert drafting assistance. Several states, n
consin and Pennsylvania, have drafting and legisl
ence bureaus at the state capitol. At the last sessio
gave serious attention to a bill creating a similar
Washington.' The American Bar Association has ju
a special committee on the drafting of legislatio
existing agencies for the rendering of technical a
legislators in the preparation of their laws, and t
recommendations to the annual meeting in I9I3.2
Legislative reference libraries are doing excellen
far as they go, but the drafting end of their work h
so well developed as the collection and indexing of p
terials. This may be due to the fact that the law
slower than the political scientists in catching up w
tendencies.

Another device of which frequent use is now being made is

to take the preparation of important legislation out of the
hands of the regular legislator and entrust it to a legislative com-
mission. This plan may or may not be effective for good.
The commission, like many other governmental agencies, de-
pends for its usefulness on the men who constitute it, the time
they devote to their work and the men to whom they entrust
the actual preparation of their bills. If a skilled workman were
to do his work as carelessly and with as many blotches appear-
ing over the whole face of it as appear in some of the compen-
sation acts drafted by commissions, his employer would not
hesitate to discharge him without pay or send him back to do
his job over again.
The wise solution of this problem of drafting American stat-
utes will do much to relieve administrative officers and courts of

1 Congressional Reference Bureau. Hearings before the Committee on the

Library, House of Representatives, Feb. 26th and 27th, 1912. (Published in
pamphlet form by Government Printing Office.)
2The members of this committee are: William Draper Lewis, Philadelphia, Pa.,
Chairman; Samuel Untermyer, New York, N. Y.; Louis D. Brandeis, Boston,
Mass.; Frederick W. Lehmann, St. Louis, Mo.; Henry C. Hall, Colorado Springs,
Colo.; Thomas I. Parkinson, New York, N. Y.; Ernst Freund, Chicago, Ill.
(201)

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I54 EfiFICIEANT GOVERNMENT

vain efforts to discover legislative intent where there is none, or

where it is confused in a mass of ill-chosen words, and will re-
move one important cause of the discontent which has been
made the basis for the proposal of popular recall of judicial de-
cisions affecting the constitutionality of state legislation or the
recall of judges rendering such decisions.
I have no panacea for the ills of legislation. I have no scheme
to suggest for the production of well-drafted statutes. I know
of no device or organization which can be depended upon to
provide us with good drafting. Official drafting and legislative
reference bureaus are not of themselves sufficient; machinery
will not run without power. In the last analysis the problem is
to secure men of training and experience who will devote their
professional careers to the scientific formulation and develop-
ment of our written laws. In the words of E. W. Smith, Esq.,
president of the Pennsylvania Bar Association, the drafting of a
statute is not a " pastime for a summer afternoon." In many
ways preparation of statutes, because of the increasing quantity
and broad effect of our statute law, is even more important than
the judicial function which operates only on controversies as
they arise between man and man. Again, Mr. Smith says:
" Legislation is necessarily fragmentary, unless it is prepared by
skilful lawyers, familiar with the subject, who are ready to de-
vote much time and thought to its preparation. But it is foolish
to assume that all lawyers can draft statutes. Such work re-
quires a concentration of mind and of expression that few men
have." Until we are impressed with the necessity of having our
statute law drafted by such men, and until we find the men, we
shall continue to find in our session laws numerous examples of
legislative blunders, some of them amusing, some pathetic, and
unfortunately many of them serious.

'Pennsylvania Bar Association Report, 1911.

(202)

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