How to Read Statutes
Most legal research projects involve finding out what the law “is” in a particular circumstance. this usually involves finding a statute and then deciding how a court would interpret it given the facts in your situation. Courts consider it their responsibility to carry out the legislature’s will as expressed in its statutes. if a statute is unclear—and many are—the court will try to figure out what the legislature intended. only if the legislature exceeded its powers or intended something unconstitutional will courts ignore the dictates of a statute—and that doesn’t happen very often.trying to determine what the legislature intended is often like trying to predict the roll of dice. Sometimes it seems that statutes are deliberately written to be incomprehensible. Certainly, many of them are almost impenetrable. one simple reason for this is that the lawyers who draft them have often not mas tered basic english and disguise the fact by relying on “wherefores,” “therefores,” “pursuants,” and so on. Also, and perhaps more important, from the time a proposed statute is drafted until it emerges from the legislature in final form, legislators compromise, delete words and add more words in an attempt to get enough votes to pass the bill. What may have begun as straightforward and clear language often becomes so riddled with exceptions and conditions that the result presents serious difficulties to anyone who wants to understand what was intended.
When searching for the meaning of a statutory provision, courts employ a number of rules of interpretation that have been developed over the years. these “rules” are often imprecise and sometimes con tradictory, but if you are aware of them you should arrive at a more accurate interpretation than if you use only your common sense. Below we provide some guidelines that reflect the approach used by the courts for reading and understanding statutes. Rule 1: Read the statute at least three times, then read it again.often a different and hopefully more accurate mean ing will emerge from each reading. never feel that somehow you are inadequate because despite a num ber of readings you aren’t sure what a particular statute means. A great many lawsuits result from the fact that lawyers disagree about confusing statutory language. Rule 2: Pay close attention to “ands” and “ors.” Many statutes have lots of “ands” and “ors” tucked into different clauses, and the thrust of the statute of ten depends on which clauses are joined by an “and” and which by an “or.” When clauses are joined by an “or,” it means that the conditions in at least one of the clauses must be present, but not in all. When clauses are joined by an “and,” the conditions in all the clauses must be met.
Rule 3: Assume all words and punctuation in the statute have meaning.often, statutes seem to be internally inconsistent or redundant. Sometimes they are. however, courts pre sume that every word and comma in a statute means something, and you should do the same. if you’re un sure about what a word or phrase means, look it up in a law dictionary or a multi-volume publication titled Words and Phrases.Rule 4: Interpret a statute so that it is consistent with all other related statutes, if possible.Sometimes it appears that a statute is totally incon sistent with other statutes in the same statutory scheme. it may be, but a judge who examines the statutes will make an attempt to reconcile the meanings so that no conflict exists. it is wise, therefore, to ask yourself whether any interpretation of the statute can be made that will make it consistent rather than inconsistent with other statutes. Rule 5: Interpret criminal statutes strictly.over the centuries the courts have applied a doctrine called “strict interpretation” to the criminal law. this reflects the policy that no person should be held accountable for a crime without adequate notice that his behavior was criminal. the only way to provide this type of notice is to insist that criminal laws be interpreted literally. And the defendant must be af forded the benefit of any ambiguities in the language. For example, to convict somebody of “breaking and entering a building belonging to another with the intent to commit theft or a felony therein” (a com-mon definition of burglary), a prosecutor has to prove each element of the crime—that the person broke and entered and intended to commit a felony inside.
Rule 6: Interpret ambiguities in statutes in ways that seem to best further the purpose of the legislation.Much legislation is designed to either protect the public from ills or to provide various benefits. When ambiguities exist in these types of statutes—com monly called social welfare legislation—the courts tend to interpret them so that the protection or ben efit will be provided, rather than the other way around.
Rule 7: Interpret the statute so that it makes sense and does not lead to absurd or improbable results.Courts are sometimes called on to interpret statutes that, if taken literally, would lead to a result that the legislature could not (in the court’s opinion) have intended. in such an instance, a court will strain to interpret the statute so that it does make sense or lead to a logical result.
his rule of interpretation is especially important for non-lawyers to understand. lawyers are used to the inherent paradoxes and uncertainties in statutory interpretation (indeed, they create them). however, few things are harder for a layperson to take than when the judge rejects a literal interpretation of a statute because “the legislature couldn’t have in tended it.” the moral? When reading a statute, ask whether your interpretation is grounded in common sense and in the way the law was probably intended to work.
Rule 8: Track down all cross-references to other statutes and sections.people who draft statutes are very fond of including references to other statutes and sections of the same statute. When faced with such a statute, the human tendency is to ignore the cross-references and hope that they don’t pertain to your situation. our advice, quite simply, is to track down each and every cross-reference and make sure you understand how it relates to the main body of the statute you are analyz ing. if you don’t, you could overlook something cru cial. An example of what we’re talking about is shown below.
The Importance of Cases That Interpret Statutes
it would be nice if research into the meaning of statutes began and ended with reading the statutes themselves. unfortunately, statutes are subject to varying interpretations no matter how clearly they are worded or how closely they are studied. lawyers are paid large sums of money to argue that the word “may” really means “shall,” and vice versa. the abil ity of lawyers to interpret the meanings of common words in new (and often absurd) ways is sometimes breathtaking and often bizarre. For example, an author was receiving more than his share of parking tickets as a result of a San Mateo, California, ordinance banning overnight parking and his close friendship with a San Mateo resident, whose many wonderful attributes didn’t in clude a driveway. Afraid that the tickets he in evitably received would eventually sour his romance, the author went to court to overturn the ordinance. he argued that the state statute authorizing cities to ban overnight parking on “certain city streets” didn’t mean a city could ban such parking on “all” streets, which was how San Mateo interpreted it when it passed the ordinance. Briefs were written and argu ments held on the question of whether “certain” could be read to mean “all” or had to mean “less than all.” the judges hearing the case on appeal eventu ally concluded that certain meant “less than all,” so the author’s romance was saved. As this story illustrates, the judiciary is charged with the task of interpreting statutes when a dispute over their meaning is presented in a lawsuit. Court interpretations of statutes are every bit as much a part of the statute as the words themselves. For example, the California statute mentioned earlier provided that landlords were liable to tenants in the amount of $100 for each day the utilities were shut off by the landlord for the purpose of evicting the tenants. When a landlord appealed a judgment against him under this statute, the California Supreme Court decided that it would be unconstitutional to penalize a landlord $100 per day regardless of circumstances (Hale v. Morgan, 22 Cal. 3d 388, 149 Cal. rptr. 375, 584 p.2d 512 (1978)). the Court interpreted the statute to allow a penalty of up to $100 per day, depending on circumstances. immediately after this court deci sion, the law of utility shutoffs in California could only be determined by reading the statute and the court case together. the California legislature later amended the statute to comply with the Court’s rul ing. there are two primary ways to find out what the courts have had to say about a particular statute: • case notes that accompany the statutes in anno tated codes, and• a series of books calledShepard’s Citations for Statutes.these methods (and others) are covered in Chapter 9.
Using Words and Phrases to Interpret Statutes
in the land of the law, judges are master. to properly interpret a statute, you usually need to know how courts have interpreted one or more of the specialized words and phrases it contains. one tool to help you do this is a multi-volume set called Words and Phrases (West group). it contains one-sentence interpretations of common words and phrases that have been pulled from cases and organized alphabetically. this publication allows you to find out whether courts have interpreted or used any particular word or phrase you are interested in and, if so, how. in a real sense, Words and Phrases is a kind of dictionary that offers contextual definitions instead of the abstract and disconnected entries found in most law dictionaries. Below is part of the Words and Phrases entry for “landlord and tenant.” As with other hardbound legal resources, don’t forget to check the pocket part in the back of each book for the newest entries.
While Words and Phrases can be helpful in under standing statutory language, it isn’t a substitute for a court’s interpretation of the specific statute with which you are concerned. If the statute has been interpreted by a court, that interpretation will prevail over another court’s interpretation of the same language in a different statute under different facts.
Using Attorney General Opinions to Interpret Statutes
Attorneys general, the highest legal officers in government, are often asked by government agencies to interpret the meaning of statutes. When they do, it is often in the form of a written opinion. these attorney general opinions are not binding on the courts, but they have influence, especially when there is no precedent to the contrary. And they can be very helpful in deciphering an otherwise hopelessly complicated statute.
Finding Attorney General Opinions
Attorney general opinions are collected in publi cations usually called something like Opinions of the Attorney General of the State of … A separate set exists for each state and for the federal government. if a statute is the subject of an attorney general’s opinion, the citation to the opinion citing the statute will appear after the case citations in Shepard’s Citations for Statutes. (See Chapter 9 for how to use this valuable tool.) Also, see later in this chapter for an example of how to use the internet to find state attorney general opinions.
Finding Attorney General Opinions on the Internet
Many states have put their attorney general opinions up on the internet. you can find them by visiting the national Association of Attorneys general (nAAg) website [www.naag.org]. this site provides links to each state attorney general’s website, as well as bios and phone numbers.
Using Legislative History to Interpret Statutesyou may be uncertain about the meaning of a statute no matter how much you study it. For instance, many statutes provide that certain government employees are entitled to an administrative hearing if they lose their jobs. What such statutes often don’t say is whether the hearing must be provided before the dis charge or after it. if you are unable to find a court decision on the question, how should you proceed? one common way (and in many cases the only way) is to find out what the legislators intended at the time they passed the statute. their intent can be inferred from legisla tive committee reports, hearings and floor debates—what is called the statute’s “legislative history.” the general idea for researching legislative history is simple: legislators are presumed to know what they’re doing and why. When you investigate legislative history, keep a couple of points firmly in mind. As mentioned earlier, what the legislature intended in a statute is supposed to be gleaned from the “plain words” of the statute itself. So if a judge believes the words of a statute are reasonably clear, no inquiry into the legislative intent will be considered. the second point is a bit more cosmic. legislative intent can be seen as a kind of mass delusion that the judicial community buys into when it doesn’t know how to interpret a statute any other way. Why a delusion? Because most of the time there is no one clear legislative intent. typically, a few legislators know what’s intended by the words of any particular statute, while the great majority who haven’t even read it vote for or against the bill for reasons unrelated to how it’s worded. For that reason, some judges stick to the words of the statute, no matter how diffi-cult it is to understand. Finding Federal Legislative HistoryConducting a full investigation of legislative history for a federal statute can be an exhausting and often inconclusive task. you will probably be glad to know that most of the time it is also unnecessary. normally, locating the more important federal com mittee reports is all the legislative history research you need to do.
Most statutes in the annotated federal codes (U.S.C.A.and U.S.C.S.) are followed by a reference to the U.S. Code Congressional and Adminis trative News, which contains federal legislative history. An example of how this works is shown in the federal statute set out above. examine the small print following the statute. the last paragraph sets out where the legislative history for the original statute and the 1982 amendment can be located in the U.S. Code Congressional and Administrative News. if the federal statute you are investigating does not have a citation to its legislative history, you can check the subject index, popular names table and statutory reference table in each volume of the U.S. Code Congressional and Administrative News. there is one major limitation to the value of these indexes and tables, however: they are not cumulative. in other words, they index only materials from the legislative session covered by that volume. Suppose, for example, that you are dealing with a statute passed in 1984 but don’t know its public law number or its U.S. Code citation. you can use the subject index for the U.S. Code Congressional and Administrative News for that year to find the legisla tive history. if, however, you already have the public law number of a statute, find the volume containing the public laws for the Congress indicated in the public law number. For instance, if the number is 94-584, find the volume containing material for the 94th Congress. then use the statutory reference table to locate the committee reports. if you don’t know the public law number, the U.S. Codecitation, or the approximate year the statute was passed, you will have difficulty finding the appropriate committee reports; your best bet is to search for the U.S. Code citation. it is important to remember that the typical statute is amended many times over its lifespan. each amendment has its own committee reports. the legislative history of a statute, therefore, generally refers to a collection of legislative histories. each of these legislative histories must be separately researched, because any given volume of the U.S. Code Congressional and Administrative News contains only the committee reports for the session covered by that volume. in the federal statute set out above, the legislative history of the original statute is contained in an earlier U.S. Code Congressional and Administrative News, while the history of the 1982 amendment is in the 1982 U.S. Code Congressional and Administrative News. you would need to read both to glean a full legislative history of the statute.
Finding Federal Legislative History on the Internet
Most legislative history for federal statutes is reported in committee reports. you can use the thomas website to find legislative history for the last several sessions of Congress. you also can pick up various helpful items by meticulously reading the Congressional Record. go to https://thomas.loc.gov.
Finding State Legislative History
State legislative history is usually more difficult to uncover than federal legislative history. however, many states have legislative analysts (lawyers who work for the legislature) whose comments on legisla tion are considered by the state legislators in the same way as committee reports are considered by Congress. these comments are sometimes published in the advance legislative update services as an introduction to the new statute. Statutes and accompanying comments that are printed in these advance legislative services are later bound and retained in volumes called Session Laws, according to the year they were passed. it is sometimes possible to discover the legislative history of an older state statute by finding these legislative analysts’ comments with the statute in the bound Session Laws. to find a statute in the Session Laws, you need the chapter number assigned it by the legislature. that number appears directly after the text of the statute as printed in a code. it is also common for legislative committees to have their own staff lawyers draft memoranda to guide them in their deliberations. these memoranda are normally not available in law libraries, but they may be kept on file with the legislature. legislative procedures vary greatly from state to state. in oregon, for example, committees keep microfilmed minutes of their hearings and records of all exhibits introduced at the hearings. Many other states don’t keep such records. the best course for a researcher is probably to ask a law librarian what kinds of legisla tive history for state laws are available in that state.
Don’t Get Too Carried Away Researching Legislative History. It is often possible, and usually preferable, to determine the meaning of a statute without resorting to the legislative history. Most statutory provisions have been interpreted by courts, and courts tend not to use legislative history unless an important ambiguity really exists.
Using Uniform Law Histories to Interpret Statutes
there is currently an effort to make a number of substantive areas of the law uniform among the states. A group of lawyers, judges and law professors called the national Conference of Commissioners on uniform State laws (national Conference) drafts legislation covering certain areas of law and then tries to get as many states as possible to adopt the “uniform” legisla tion. the packages drafted by the national Conference are not law and have no effect on our legal system until they are adopted by one or more state legisla tures. And the fact that the package is adopted in one or more states does not make it law in any other state that has not adopted it.this approach to making law uniform has been highly successful in many legal areas. in other areas, the national Conference has met with less success.
if the statute you are researching was a uniform law adopted by your state, you can get some help in terpreting its meaning by looking at a series of books called the Uniform Laws Annotated (U.L.A.), published by West. it contains all of the uniform laws, the original comments accompanying them, a listing of the states that have adopted them, notations of how states have altered each provision in the course of adopting it, summaries of case opinions that have interpreted each statute, and references to pertinent law review discussions. the U.L.A. gives you excellent insight into what any particular part of a uniform law package was originally intended to accomplish and how the states and courts have treated it.
unfortunately, the U.L.A. has neither an overall index nor an overall table of contents. however, the volumes are grouped according to general subject matter. For example, some of the volumes contain uniform laws treating “estate, probate and related laws,” while others contain laws pertaining to “Civil procedural and remedial laws.” in addition, each uniform law package carries its own index. So, if you have the reference for a uniform law package, you can find the volume containing this package and use the specific index to find the particular part you are interested in.how can you tell whether a state statute you are interested in interpreting originally came from a uni form law package? if your annotated state statutes are published by West group (almost all are), the annotation following the statute will tell you. in addition, the annotation will reproduce the national Conference comment that accompanied the statute as it was originally proposed, and will also contain comments about how the state version of the statute differs from the original. States seldom adopt uniform law packages lock, stock and barrel. usually they change or delete some of the statutes in the package. Also, in many cases, new sections are added. So by the time uniform laws have been adopted by the various states, they are no longer, strictly speaking, “uniform.” Still, for the most part, if you have an overall understanding of the package as it was produced by the national Conference, you will have a good grasp of the final result in any given adopting state.on the internet, the Cornell legal information institute provides links to state statutes that implement various uniform laws as well as provides the actual text of the uniform law for each state. you can find this information at www.law.cornell.edu/states/index.html. Click the “update uniform law locations” link at the left.
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