Legislation Law and Procedures

Author: (USA) Davis
Publisher:
Publish Date: 2005-10-01
Features: In the field of American legal education and legal practice, the "Nutshell Series" is a distinctive set of books. The most prominent feature of these books is their conciseness and clarity, making complex legal concepts accessible. Many law students use these books as supplementary materials to grasp the essence of various legal departments in the United States, while practicing lawyers often rely on them to quickly familiarize themselves with unfamiliar legal areas or review previously studied courses. It is believed that this series will also be well-received by domestic readers. Whether you are an undergraduate or graduate student in law, a practicing lawyer, or someone else, you can gain a wealth of knowledge about American law from this series, which will be beneficial to your studies and work. Additionally, learning American law through authentic English will also enhance your legal English proficiency and facilitate direct communication and exchange with American colleagues. — Xu Chuanxi, Ph.D. (J.D.) from Harvard University, Ph.D. in Social and Cultural Anthropology from Yale University, Current Dean, Professor, and Doctoral Supervisor of the Sino-U.S. Law School at China University of Political Science and Law. The book "Legislation: Law and Procedure" was written by Professor Jack Davis. It was first published in 1975 by Western Publishing as part of the "Nutshell Series" and was revised in 1986. The version introduced here is the 1986 edition. The author dedicated the book to the voters of Minneapolis, Minnesota, because from 1958 to 1982, Davis served as a Senator in Minnesota for 24 years. The book was written during his tenure as a Senator. As mentioned by the author in his preface, the book received widespread acclaim after its publication and became a "guide" for many lobbyists. A close friend of the author, who is both a professor and a former senator and lobbyist, read the book and said, "That's exactly what it is!" Whether it is "exactly what it is" can be determined by examining the author's background, the content of the book, and the ideas it conveys. The author has 24 years of legislative experience, serving as the majority leader of the Minnesota Senate and chairing the Judiciary Committee. He has been responsible for drafting and passing numerous major bills, as well as establishing committees and managing the Senate's personnel. It is highly appropriate for such an experienced professional to write this book.
Looking at the content framework of the book, the five major parts cover: (1) legislative procedures, (2) bill drafting, (3) analysis of legislative power, (4) the impact of the constitution, and (5) legal interpretation. Other books on legislative law and procedure also primarily focus on these aspects, such as "The Law-Making Process" by Professor Michael Zander of Lenton College. Within these five parts, the book provides an extremely detailed introduction to legislative procedures, methods, structures, systems, internal and external relationships, and more. Taking bill drafting as an example, there are very detailed yet vivid descriptions of the techniques, content, editing, and common pitfalls to avoid. Only a seasoned professional immersed in the legislative process for decades could achieve this level of detail. No wonder lobbyists keep a copy of this book as a treasure trove for understanding and influencing legislative activities. In this sense, while the book may not match the academic value of works by major theorists like F.A. Hayek's "Law, Legislation and Liberty," it is unmatched in practicality by any comparable books. For Chinese readers, although they may not directly benefit from its practicality (such as using it as a guide to lobby the U.S. or Chinese legislative bodies), they can gain a comprehensive understanding of the U.S. legislative system and process through the vivid and realistic descriptions and discussions of the legislative process in the book, and draw inspiration from its essence to improve China's legislative system. The profound insights conveyed through the description of the process are what make this book particularly valuable.
First, the author tells us that legislation is important and impactful. From constitutional, tax, financial, environmental, employment, criminal, and marital systems to trivial matters like whether to wear a helmet while riding a motorcycle or clean combs when getting a beauty treatment, everything is regulated by law. Therefore, legislation is no joke and should not be taken lightly. It is even more important to be involved and not stand idly by. Good legislation will have positive effects on both the state and individuals, while poor legislation can cause endless harm. For example, the U.S. Congress is currently considering whether to pass a "Circumvention of Copyright Infringement Act" to regulate any computer technology that could lead to online copyright infringement. Many people (especially those in the tech industry) strongly oppose it, fearing it may stifle technological innovation. In China, a traffic regulation in Beijing sparked fierce debate between drivers and pedestrians, ultimately favoring the interests of pedestrians, meaning that drivers are held accountable for traffic accidents regardless of fault. These are examples of how laws impact society and individual lives. Since legislation concerns the vital interests of the state and every individual, "Those who want something from a legislature must ask for it." The legislature is more like a "review board," rarely initiating legislation but rather responding to and judging the demands of the people (or interest groups) and forming laws based on these demands. The author even argues that the principle of "inertia" in physics is a common trait of legislatures, meaning that the passage of bills is generally driven by external forces, or else they remain in committees "resting." This concept may be unfamiliar to some Chinese readers, who believe that legislation is the initiative of the legislative body (or "the higher authorities") and has nothing to do with them. They only enforce (or try to evade) the laws that are passed. In reality, when citizens see themselves as "legislators" and actively propose legislative demands for their own interests, the laws passed are more likely to be voluntarily followed. Therefore, legislation should be seen as a bottom-up process, not the opposite. Of course, in most cases, ordinary citizens cannot directly participate in the legislative process and need to find representatives (or lobbyists). The role of representatives or lobbyists is similar to that of lawyers in court, helping judges uncover and determine the truth of a case. If no one opposes a bill, even if it is unfavorable to some people, it may still pass, much like a "default judgment" in court. With lobbying, fairness and justice in legislation can be ensured to some extent. Because the three elements of "due process"—notice, the opportunity for a hearing, and an impartial tribunal—are only strictly required in the legislative process; citizens' hearing opportunities are generally represented by lobbyists; and there is no "impartial tribunal" in the legislative process. Unlike judges, legislators cannot be impartial and must constantly listen to the demands of various stakeholders, which are usually conveyed through lobbying. China's legislative process also requires legislative consultation and hearings, but they are generally "top-down" and selective, unlike the lobbying in the U.S., which is bottom-up and pervasive. If lobbying could also be injected into China's legislative process, it might have a positive impact on the fairness and democracy of legislation.
Another noteworthy aspect of the book is the source and division of legislative power. The Tenth Amendment to the U.S. Constitution explicitly states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Therefore, the U.S. Congress only enjoys legislative power granted by the Constitution, while the states enjoy all these powers and the remaining legislative power. In other words, the scope of state legislative power is broader than that of the U.S. Congress. China's division of legislative power is the opposite: the National People's Congress holds all legislative power, while provinces, autonomous regions, and the State Council and its subordinate bodies enjoy legislative power delegated by the National People's Congress. These two opposite divisions are based on two opposite theoretical assumptions. In China, the National People's Congress represents the people and is one with the people; whereas in the U.S., the state is the people, and the federal government is a potential threat to deprive and infringe on people's rights. Both systems emphasize "popular sovereignty," but whether the central or local power organs better represent public opinion is a matter of personal opinion. However, in practice, the two systems are increasingly converging: the U.S. Congress is expanding the legislative power of the federal government based on the "necessary and proper" clause of the Constitution, while Chinese local governments are also increasingly exceeding the authority defined by the Constitution and the Legislative Law through measures like "pilot legislation." Another difference in China's legislation is that U.S. court rulings have the same legal effect as laws passed by the legislature. This approach allows both the parliament and the court to play different roles: the former is macro, and the latter is specific. Together, they ensure that the law is both stable and flexible, capable of addressing constantly changing and complex social affairs. Of course, judicial legislation, aside from being a long-standing common law tradition, also requires high standards of judicial professionalism, and may not be suitable for China's legal tradition and context.
Lastly, I would like to mention the author's views on the relationship between courts and legislatures. In the U.S., courts and legislatures have a "separation of powers and checks and balances" relationship, but there seems to be a greater emphasis on judicial power. For example, courts can conduct constitutional review of legislation, while the legislature cannot interfere with court rulings. According to Chief Justice Marshall's decision in Marbury v. Madison (1804), only those who apply the law to specific cases have the right to interpret it and, in the event of a conflict, determine which law violates the constitution and which is more applicable to resolving a dispute. Of course, when exercising the power of constitutional review, courts are also subject to many restrictions. In China, when laws conflict, especially when it involves whether a law is constitutional, the Standing Committee of the National People's Congress has absolute interpretive power. However, this theory is controversial, and in practice, courts often face cases where they must immediately interpret whether a law is unconstitutional or in conflict. Waiting for the legislature to interpret would delay rulings and may not provide appropriate or reasonable interpretations, as lawmakers are unlikely to have the same understanding of the actual situation as law enforcement officials handling specific cases.
The above is only a brief evaluation of the book, focusing more on the institutional aspects. In fact, as I mentioned earlier, the most important thing about this book is its practicality, and the description of the technical aspects of the legislative process is the most detailed, realistic, and engaging. Unfortunately, due to space constraints, I cannot share more about this with the readers. I believe that after carefully reading this book, readers will be able to fully and deeply understand and master these practical and engaging aspects. Although my main field of teaching and research is intellectual property law, I have long been fascinated by constitutional systems, especially legislative systems, and have spent a lot of time and effort studying legislative systems in various countries. This special preference comes from my experience working in China's highest legislative body. I am very grateful for that experience and for the people I worked with during that time. Although that experience was short and cannot be compared to Davis's 24 years, it allowed me to view the legislative systems of China and the U.S. from an insider's perspective and gave me reason to believe that the gaps and differences between the two legislative systems are gradually narrowing due to the efforts of generations of elites dedicated to developing China's legislative system. The publication of this book in China will undoubtedly help this effort.