JF 525 .S5 Copy 1 APPLIED HISTORY SERIES EDITED BY BENJAMIN F. SHAMBAUGH VOLUME n NUMBER 1 Scientific Law-making BY BENJ. F. SHAMBAUGH REPRINTED FROM VOLUME TWO OF THE IOWA APPLIED HISTORY SERIES PUBLISHED AT IOWA CITY IN 1914 BY THE STATE HISTORICAL SOCIETY OF IOWA u SCIENTIFIC LAW-MAKING Kt^ssm^ IOWA APPLIED HISTORY SERIES EDITED BY BENJAMIN F. SHAMBAUGH SCIENTIFIC LAW-MAKING BY BENJ. F. SHAMBAUGH PUBLISHED AT IOWA CITY IOWA IN 1914 BY THE STATE HISTORICAL SOCIETY OF IOWA NOV 20 1914 SCIENTIFIC LAW-MAKING From an examination of the journals of the two houses it appears that 28,134 bills and joint resolu- tions have been introduced into the General Assembly of iowa since the organization of the State in 1846 ; and the same records show that during this period, which covers sixty-eight years, 7738 bills and joint resolutions were enacted into law and placed upon the statute books of the Commonwealth. During the ses- sion of 1913 the Thirty-fifth General Assembly alone entertained the introduction of 1297 bills and joint resolutions, while it enacted 410 into laws and per- mitted 887 to fall by the wayside. In other words, it appears that in Iowa there are about one-third as many enactments as there are bills and joint resolu- tions introduced : two-thirds of all measures proposed fail to reach the statute books. The task of wisely sifting and perfecting the meas- ures presented to the General Assembly requires a degree of skill and intelligence that is not exceeded in any other department of the government. Indeed, it is conceded that the law-making or policy-determin- ing function requires for its proper exercise a knowl- edge so varied and extensive that satisfactory 6 APPLIED HISTORY legislation would seem impossible unless performed by ''minds trained to the task through long and la- borious study. ' '* And yet the official register of this State shows that comparatively few members of the legislature have had training ''through long and laborious study", or the advantage of years of experi- ence in the business of making laws. Furthermore, the General Assembly of Iowa meets but once in two years for a session of about ninety or one hundred days ; and there is nothing in the law or in the salaries provided which suggests that our legislators are ex- pected to devote much time to the study of the prob- lems of legislation when the legislature is not in session. Evidently under existing conditions there is no department of government which is in greater need of expert assistance than the legislature when it undertakes to make laws — or the voters when, oper- ating under the initiative and referendum, they assmne the function of legislating. There is much criticism of both the volume and the quality of State legislation. But a constructive view of the situation suggests the very practical ques- tion, how can legislators be aided in their work and equipped for the difficult task of making laws for the Commonwealth? Or, how may the people, acting *See John Stuart Mill's Bepresentative Government, the chapter on Representative Bodies. ^ SCIENTIFIC LAW-MAKING 7 under the forms of direct legislation, be guided in initiating and voting upon public measures'? Upon the possibility of a satisfactory answer to this ques- tion depends the improvement of legislation by repre- sentative assemblies and still more the success of direct legislation by the people. Under existing conditions legislators and voters alike may be aided and guided in the making of laws in three ways: (1) through legislative reference work; (2) through scientific research; and (3) through expert bill-drafting. The consistent use of these agencies by those engaged in the business of making laws would constitute a distinctive method of legislation which may properly be characterized as Scientific Law-making. LEGISLATIVE EEFERENCE In the first place scientific law-making demands the discovery and collection of data and information relative to the subjects of contemporary legislation. The materials to be collected include statute laws, codes, proposed bills, and judicial decisions ; reports of public officials, boards, commissions, and com- mittees; reports of special investigations and sur- veys; books, pamphlets, periodicals, and bulletins containing both popular and scientific discussions of public questions ; reference lists and bibliographies ; miscellaneous leaflets and clippings. In the hands of 8 APPLIED HISTORY competent library assistants these materials are classified, arranged, catalogued, and indexed ; special reference lists and bibliographies are sometimes com- piled ; and finally briefs may be made on some of the more difficult subjects. It is clear that the collection, classification, cata- loguing, indexing, listing, and briefing of materials is largely a library function which can best be per- formed by trained reference librarians in connection with a State Library or possibly a State University Library. As a rule the State Library is found to be the logical agency for handling this important work — which should be carried on through a department, bureau, or division specially organized and equipped for the purpose. Thus back of legislative reference work are usually the vast resources and equipment of a State Library. In Iowa legislative reference work was first of- ficially recognized in 1907 by the Thirty-second Gen- eral Assembly when $150 was appropriated for ''the purchase of legislative references to and indexes of current legislation" and $1000 annually was allowed the State Librarian's office for ''one legislative and general reference assistant." With this encourage- ment the work has been carried on at the State House in the rooms of the Law Department of the State Library under the direction and supervision of Mr. SCIENTIFIC LAW-MAKING 9 A. J. Small. Fortunately, Mr. Small's successful ex- perience as law librarian and Ms practical knowledge of the needs of legislators have combined to make the legislative reference work in Iowa most efficient and helpful — excelling in certain directions the more pretentious activities in other States. There is, however, a distinct need of more definite organization for the work, which should be supported by more ade- quate appropriations. SCIENTIFIC EESEAECH It is not enough, however, to discover, collect, and systematically catalogue data and information rela- tive to the subjects of contemporary legislation: alcoves of statutes and public documents, shelves of reports, heaps of pamphlets, and exhaustive bibli- ographies at times seem only to increase the embar- rassments and difficulties of the law-makers. What is needed also is a careful sifting of materials, a critical analysis of data, a scientific interpretation of facts. And so, scientific research becomes a necessary agency in unlocking these vast stores of legislative information. In dealing with questions of legislation scientific research involves (1) the careful and impartial in- vestigation of all the sources of information; (2) the expert interpretation of all the facts; (3) the expert definition of the standards of regulation, of legisla- 10 APPLIED HISTORY tion, and of administration ; and (4) tlie application of these standards of legislation and administration to existing needs and conditions. Manifestly research is not only the most vital but also the most difficult and exacting phase of Scientific Law-making. To properly sift the materials, analyze the data, and interpret the facts requires much time and no little training: it is the business of experts. Moreover, it takes an experienced researcher any- where from one to six months to work through a single subject. Since it is impracticable for many members of the State legislature to engage in such extensive scientific researches, this work should be done by trained experts — frequently in advance of the session. In Iowa the State Historical Society has in recent years assumed the function of legislative research — that is, this Society has undertaken systematic scien- tific researches in the field of contemporary legisla- tion and has published the results of such researches under the title of ''Applied History." Moreover, in 1913 the General Assembly voted appropriations for the continuation of these researches and publications. Back of the Applied History contributions to cur- rent legislation are the more exhaustive researches of the State Historical Society of Iowa in the political, economic, and social history of the Commonwealth. SCIENTIFIC LAW-MAKING 11 u Indeed, sucli volumes as the History of Lahor Legis- lation in Iowa, by E. H. Downe}^, the History of Taxation in loiva, by John E. Brindlej", the History of Work Accident Indemnity in lowa^ by E. PI. Downe}^, the History of Road Legislation in Iowa, by John E. Brindley, the History of Poor Relief Legis- lation in Iowa, by J. L. Gillin, the History of Social Legislation in Iowa, by John E. Briggs, and a score of monographs on the political history of Iowa are the forerunners of the Iowa, Applied History Series. EXPEET BILL-DRAFTING The final stage in the process of Scientific Law- making is the expert drafting of bills. All the legis- lative reference in the world combined with scientific research will not produce satisfactory laws if bills are not properly drawn. Bill drafting is not a simple matter : it requires a technical knowledge of law and of judicial decisions, an acquaintance with methods of accomplishing the revision and amendment of statutes, an appreciation of the importance of pre- cision in the use of terms and phrases, as well as great skill in the use of the English language. It would be amusing if it were not so serious and embarrassing to give illustrations of legalized blunders resulting from poorly drawn statutes. For the sake of uniform and scientific legislation 12 APPLIED HISTORY the General Assembh^ should make provision for ex- pert bill-drafters for the assistance of legislators or others engaged in proposing legislation. These ex- pert bill-drafters conld be attached to the staff of the legislative reference department or bureau. Such men are difficult to find, but their services are invalu- able. They would save the time of the legislator and prevent subsequent litigation. Moreover, carefully and accurately drawn measures would prevent that flood of amendments which inevitably follows the enactment of poorly worded statutes. L«2/ °^ CONGRESS 012^050 253 f^^^^