Book Review: Legislative Drafting: Step-by-Step. By Arthur J. Rynearson

It is hard for an American to evaluate a book that criticizes the drafting of statutes in the United Kingdom on the basis of ‘the continental system’ as exemplified by France, Germany, and Sweden. Being unfamiliar with the latter and only generally familiar with the former, I can only comment on the author’s analysis and recommendations in the light of American experience. ^{1 ,  2}

In accordance with Professor R. Dickerson’s quotation above, it would be difficult for a Nigerian like myself to evaluate Arthur Rynearson’s Legislative Drafting: Step-by-Step, considering that I am unfamiliar with the system of legislative drafting in the US Senate, I ‘can only comment on the author’s analysis and recommendations in the light of the Nigerian or Non-American experience’.

In this regard, the relevant question to ask is whether the author, Arthur Rynearson, has achieved the primary objective(s) for writing the book—Legislative Drafting: Step-by-Step.

The first question is: What is the primary objective of the author in writing the book—Legislative Drafting: Step-by-Step?

In the author’s own words as stated in the book:

Legislative Drafting: Step-by-Step is designed to assist all who read, write, or use legislation to better understand the basics of legislative drafting and the important role that well-written legislation plays in promoting the rule of law. . .the purpose of this manual is to provide a five-step framework for drafting legislation:

Legalize: achieving the intended legal effect.

Formalize: choosing the right legislative vehicle.

Integrate: relating new law to existing law.

Organize: organizing the legislative text.

Clarify: achieving clarity of expression. ³

Judging the author by his own words, it could be argued that the book has achieved its primary objective(s) to the extent that the author has devoted 164 pages of the book to providing details of how to perform the five-step framework. In addition, the author has provided additional guidance materials within the Appendix of the book. The Appendix is very helpful as it provides the background information on the relevant context within which the five-step framework applies, namely ‘The United States Legislative Process: A Drafter’s View’ as contained at pages 167–94 of the book.

In addition, the book lives up to its self-acclaim as a ‘manual’ and ‘checklist’ ⁴ considering that it provides ‘how to do’ sections in each chapter’s discussion of the method for applying each of the five-step framework. Appendix B of the book also provides precedents in the forms of bills, resolutions and other legislative documents that would assist the reader or user of the manual; this approach, as the author rightly argues, ‘. . .offers the drafter the best chance to save hours of trial and error’. ⁵ This is a more modern approach to undertaking the legislative drafting task unlike the traditional trial and error method which the author himself underwent as he admitted: ‘. . .I learned from doing’. ⁶

This checklist and manual approach of the book is consistent with the prevailing view ⁷ amongst legal academics and legal practitioners in the field of legislative drafting who are agreed that a legislative

…drafter acts both as an artist and a scientist. As a scientist, the drafter knows that choosing a particular relationship of law, form, or words will produce a predictable legal, procedural, or interpretative result…As an artist, however, the drafter must exercise judgment in applying the correct relationships to any given legislative blueprint using what the drafter knows about the legislative intent of the political actors involved…

Chapter two of this book titled ‘How to Choose the Right Legislative Vehicle’ is one particular aspect in which this book stands out from other textbooks on legislative drafting. This chapter in addition to the precedents contained in the Appendix provides an elaboration of other legislative documents such as resolutions and legislative veto which are not mostly discussed in other major textbooks on the subject. Primary legislation, subsidiary legislation and amendment legislation are almost always the core topics that are discussed in other legislative drafting textbooks. This is significant considering that more often than not, in recent times, legislative drafters are required to draft bills, resolutions, motions, lead debates and other forms of legislative documents other than primary and secondary legislation. This is the current practice and experience of legislative drafting lawyers such as myself who are in the employ of the National Assembly (national/federal legislature) of Nigeria.

Another commendable feature, which non-US legislative drafters can learn from this book is:

An earmark (known to drafters as a ‘minimum allocation’) is a fencing or set aside of funds to be available only for a specific purpose…is a useful legislative tool by which Congress prioritizes government spending. By restricting the executive branch, it acts as a strong inducement for implementation of a law the way Congress desires. ⁸

The only minor quibble with this book is that it fails to mention the impact of the US Plain Writing Act of 2010 ⁹ in its discussion at page 158 that the role of plain drafting language in legislative is very scant and does not necessarily reflect the current practice in the USA. This law refers to drafting of subsidiary legislation (federal regulations) and will be helpful to drafters that are engaged in drafting this genre of legislative document.

Quite commendable and noteworthy is the author’s ability to demonstrate the connection and linkage between the five-step legislative drafting framework and the ‘rule-of-law values’. ¹⁰ The author elaborates this at pages 162 and 163 of his book. This is important considering that it is now almost universal that democracy and rule-of-law values are the underpinnings of every type of legislation that legislative drafters are instructed to draft and must be so reflected.

Furthermore, the book fails or omits to mention the requirement to provide cost–benefit analysis or financial estimates as supporting documents when submitting legislative documents to the US Congress as another major current practice in the US Congress and an evolving global recent trend in legislative drafting. In the USA, this is a mandatory requirement by virtue of § 402 of the Congressional Budget Act of 1974, ¹¹ which requires the director of the Congressional Budget Office to prepare a cost estimate for each bill or resolution that is reported by any House or Senate committee. I do not believe there is any other requirement for a cost–benefit analysis of federal legislation. Cost–benefit analyses are required for certain types of federal rulemaking. In the United Kingdom, this has been the practice since the 1198/1999 parliamentary session, while in Nigeria this practice became mandatory by virtue of Order 77(3) of the 2011 Standing Orders of the Senate of the National Assembly.

In conclusion, the author has bequeathed a legacy to the field of legislative drafting drawn from his half-century of employment at the Office of the Legislative Counsel of the Senate of the Congress of the United States of America.

I recommend this book unreservedly to all who wish to gain an understanding of the practice of legislative drafting within the Congress of the United States of America and beyond.