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Legislative Drafting Guide Review

Legislative Drafting Step-by-Step by Arthur J. Rynearson serves as a comprehensive guide for legislative drafters, breaking the drafting process into five key steps: legalizing, formalizing, integrating, organizing, and clarifying legislation. The book provides practical advice, examples, and exercises to help drafters create clear and effective statutes while understanding the complexities of the U.S. federal legislative process. It is a valuable resource for anyone involved in legislative drafting, statutory construction, and the legislative process, applicable to both U.S. federal law and other jurisdictions.

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Subhrajyoti Lahiri
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25 views3 pages

Legislative Drafting Guide Review

Legislative Drafting Step-by-Step by Arthur J. Rynearson serves as a comprehensive guide for legislative drafters, breaking the drafting process into five key steps: legalizing, formalizing, integrating, organizing, and clarifying legislation. The book provides practical advice, examples, and exercises to help drafters create clear and effective statutes while understanding the complexities of the U.S. federal legislative process. It is a valuable resource for anyone involved in legislative drafting, statutory construction, and the legislative process, applicable to both U.S. federal law and other jurisdictions.

Uploaded by

Subhrajyoti Lahiri
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

2014] BOOK REVIEWS 161

Legislative Drafting Step-by-Step. By Arthur J. Rynearson. Washington,


D.C.: International Law Institute, and Durham, N.C.: Carolina Academic
Press, 2013. Pp. xxi, 235. ISBN 978-1-61163-380-1. US $45.00.

The reader of a statute readily stumbles across language like


“notwithstanding subsection (b), a registered agent must file the report
mandated under chapter 3 of title 25 not later than 30 days after making an
application.” You may justifiably wonder why anyone would choose to write
such verbiage. In Legislative Drafting Step-by-Step, Arthur J. Rynearson
explains why proposed legislation and enacted statutes are written the way
they are. Rynearson is a former deputy legislative counsel of the U.S. Senate
and spent much of his career immersed in legislative drafting. While the book
is designed as a handbook and training manual for legislative drafters, it is
also a valuable resource for better understanding statutory construction and
the U.S. federal legislative process.
True to the book’s title, Rynearson breaks the process of drafting
legislation into five steps. The first step is to “legalize”—determining the
precise, desired legal effect of the legislation. This chapter shows that when
the words one selects have binding legal effect, one has to be very careful. For
instance, when prescribing a duty for an executive branch official, Rynearson
recommends naming the head of an agency. Such a position is unlikely to be
abolished (thus eliminating the official who has the duty) and the agency head
can always delegate the duty to subordinates. Rynearson explains in sparse,
clear prose how to write binding language (use “shall” instead of “must” or
“will) and hortatory language. The abundance of examples will help novice
drafters select the appropriate words and assemble them for the desired legal
effect while avoiding exceeding the limits placed by federalism and the
separation of powers.
Once the desired legal effect has been reduced to words, you should
“formalize” it—select the appropriate legislative vehicle. Here Rynearson
discusses the various types of legislation—bills, resolutions (joint, concurrent,
and simple), and amendments. Each of these vehicles has specific functions
and forms that should be followed. Rynearson also describes budget scoring,
the legislative veto and how to avoid that constitutional stumbling block, and
expedited procedures (“fast track”) to speed congressional deliberations.
The next step is to “integrate” the legislation—determine how the
legislation will fit into the codified statutes if it is enacted. Given the
complexity of many statutory codes and other laws that are enacted but not
codified (like appropriations acts), this can be a challenge. Just as it is
important to carefully select the words that best capture the legal effect, it is
crucial to specify exactly what provisions are to be changed. At this point, you
must understand the difference between titles in the U.S. Code that are
162 INTERNATIONAL JOURNAL OF LEGAL INFORMATION [Vol. 42.1

positive law (the actual law) and titles that are prima facie evidence of the
law. You can directly amend the positive law titles, but to amend the law in a
prima facie title, one must find original enacted law and all later amendments
to determine the text to amend. For example, you cannot amend 29 U.S.C. §
206(d) (1) because Title 29 is not positive law. Instead, one must draft a bill to
amend Section 6(d) (1) of the Fair Labor Standards Act of 1938. Rynearson
also discusses how to write clean-up amendments, effective dates, transition
provisions, and proper cross-references.
Next one should “organize” the legislation. Rynearson lays out the
standard forms for bills and resolutions. This chapter covers how drafters
handle the colossal tasks of compiling massive omnibus legislation—it is
helpful to think of each division or title as a separate, simpler bill. Along with
explaining legislative organization on the marcro level, Rynearson also covers
the micro-level task of splitting a legislative section into subsections,
paragraphs, subparagraphs, clauses, and subclauses. This chapter helps any
reader of statutes use the organizational scheme to better understand what the
statute means.
Finally, one should “clarify” the legislation and eradicate ambiguity,
imprecision, and vagueness. Such statutory ills may not only prevent effective
implementation of a law’s legal effect, some statutes may be found void for
vagueness and thus invalid under the Due Process Clause of the U.S.
Constitution. Rynearson applies well-known rules of good writing but with
tweaks for the special task of drafting. For instance, you should write in the
active voice, avoid overly long sentences, use words consistently, and use
gender-neutral expressions. Legislative language is often dull because the
same words are used repeatedly. While varying sentence structure and using
synonyms make for more enjoyable reading, they also introduce ambiguity
and imprecision that can later hamper consistent and fair interpretation.
An appendix describing the U.S. federal legislative process from the
drafter’s perspective is one of the most complete and clear explanations I have
read. Rynearson notes when new drafts of bills are printed and what other
documents are generated as a bill progresses toward enactment. The next time
I compile a legislative history, I will turn to this appendix as a checklist to
ensure I do not miss a step in the process.
In addition to the examples throughout the text, each chapter has
drafting exercises (with answers at the end of the book). Rynearson’s concise
writing and logical organization reflect his prescriptions for good drafting.
Rynearson focuses almost exclusively on U.S. federal law, but much of his
advice is applicable to legislation in the states, as well as other nations. This
book is a worthwhile purchase for academic, government, and private law
2014] BOOK REVIEWS 163

libraries, and valuable reading for researchers studying legislative drafting,


statutory construction, and the legislative process.

Benjamin J. Keele
Research and Instructional Services Librarian
Ruth Lilly Law Library
Indiana University Robert H. McKinney School of Law
Indianapolis, IN USA

Common questions

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Arthur J. Rynearson outlines five steps in 'Legislative Drafting Step-by-Step': legalize, formalize, integrate, organize, and clarify. The first step, 'legalize,' involves determining the precise legal effect of the legislation, which is crucial to ensure that the chosen words accurately capture the intended legal action . The second step, 'formalize,' requires selecting the appropriate legislative vehicle, such as bills or resolutions, to suit the specific function and form . 'Integrate' entails determining how new legislation fits into existing statutes, which is essential given the complexity of statutory codes and legal amendments . 'Organize' involves structuring legislation correctly, both at the macro level (such as divisions and titles) and micro level (such as sections and clauses), to facilitate understanding and effective implementation . The final step, 'clarify,' seeks to eradicate ambiguity and vagueness that could prevent effective law implementation and lead to constitutional challenges under the Due Process Clause .

Rynearson underscores the importance of using gender-neutral language in legislative drafting to avoid bias and ensure inclusivity in legal texts. This practice aligns with broader societal shifts towards more inclusive language use, minimizing the potential for discrimination and reflecting contemporary values more accurately in legal documentation .

Precision in legislative language is critical due to its role in ensuring that statutes are implemented effectively and enforceably. Rynearson warns that vagueness or ambiguity can prevent the intended legal effect of laws and even lead to statutes being declared void under the Due Process Clause of the U.S. Constitution. Precision ensures clear legal directives and minimizes the risk of misinterpretation or ineffective enforcement .

Rynearson differentiates 'positive law' and 'prima facie evidence of the law' within the U.S. Code by explaining that positive law titles are the actual law and can be directly amended. In contrast, prima facie titles serve as evidence of law, requiring drafters to find the original enacted law and subsequent amendments to determine the correct text for amendment. This distinction is critical as it affects how legislative amendments are drafted and implemented, highlighting the complex nature of statutory amendments .

Rynearson addresses the balance between simplicity and complexity by advocating clear and concise language while acknowledging the necessity to accommodate complex legal requirements and specificities inherent in legislation. He suggests using consistent terminologies and active voice to maintain clarity but warns against oversimplification that might overlook critical legal nuances, thereby ensuring both readability and effectiveness .

Rynearson emphasizes the use of 'shall' rather than 'must' or 'will' because 'shall' unambiguously indicates a mandatory duty, thus ensuring that the language is binding in a legal context. This choice of wording significantly impacts the enforceability and clarity of legislative directives, which is crucial for ensuring that the law achieves its intended effect without ambiguity .

'Fast track' procedures, as described by Rynearson, serve to expedite congressional deliberations by shortening the time frame for debate and amendments, thus facilitating quicker legislative action on critical issues. Rynearson advises these procedures be used judiciously to optimize congressional efficiency without compromising the necessary thoroughness and scrutiny of proposed legislation .

Rynearson's book offers valuable insights into legislative drafting, statutory construction, and the legislative process, making it a useful resource for academic, government, and private law practitioners. For academic institutions, it serves as an educational tool; for government entities, it provides practical guidelines; and for private law practitioners, it offers a deeper understanding of legislative nuances, thus catering to diverse readerships .

Integrating legislation into codified statutes presents the challenge of fitting new laws into complex statutory codes and alongside uncodified laws like appropriations acts. This requires a precise understanding of which provisions to amend and how to amend them. Rynearson suggests that an effective way to address these challenges is to carefully specify the provisions to be changed and understand the differences in titles in the U.S. Code, particularly between positive law and prima facie evidence of law, as this affects how amendments are drafted .

Rynearson's approach to organizing legislative text involves breaking down large legislative proposals into manageable divisions or titles, treating each as a separate bill. This structured organization, along with a micro-level breakdown into sections, subsections, and clauses, enhances comprehension by facilitating clarity and coherence, helping legislators and the public better understand complex legislation .

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