Interpreting Statutes: A Lawyer's Guide

Interpreting Statutes: A Lawyer's Guide. The American legal system has roots in common law, but since the 1930s, there's been an "orgy of statute-making." Most legal issues are now controlled or significantly affected by statutes, thus statutory analysis skills are crucial for lawyers. Basic skills: (1) reading the statute, (2) identifying issues, and (3) interpreting language. ## Reading Statutes. The starting point for reading a statute is understanding the legislature's relationship to the courts. Applicable statutes bind courts of that jurisdiction, but courts interpret statute language. Once interpreted, the doctrine of stare decisis applies; the court's interpretation binds all other courts for whom the opinion is mandatory authority. If the legislature disagrees, it can amend the statute to clarify its intended meaning, and courts are then bound by the newly amended statute. Additionally, courts have authority to rule on the constitutionality of a statute, and on this question, the court has the last word. The legislature can amend to cure a constitutional infirmity, but cannot enact another statute declaring the original statute constitutional. An unconstitutional statute will not be enforced. Within these interlocking roles, lawyers must read statutes precisely, accurately, and sometimes creatively to advise clients and represent litigants. ### The Five Ws of Reading a Statute. This involves questions similar to a journalist's guide: * Who? Whose actions are covered?; * What? What kinds of actions are required, prohibited, or permitted?; * When? When was the statute effective?; * Where? Where must the actions have taken place to be covered?; * What then? What consequences follow? ### Parts of a Statute to Read. Often, the scope of material needed is larger than the specific provision initially identified. If dealing with an act containing individual separately numbered provisions, one must read carefully at least the following: * 1. The language of individual provisions dealing directly with the legal issue; * 2. The language of any other individual provisions expressly cross-referenced; * 3. The titles of these individual provisions and of the entire act; * 4. Any set of definitions applying to the provisions or the act as a whole; * 5. Any statement of purpose and any preamble; * 6. If length is not prohibitive, the entire act; * 7. If too long, at least the titles of all other individual provisions to identify any that might relate to the issue; * 8. The dates of enactment and effective dates for the act and individual provisions; * 9. All of the same information for any amendments to important provisions; * 10. The same information for any prior versions of important provisions (to understand legislative changes). Read each part word by word and phrase by phrase, paying attention to every detail. Reading a statute is more like reading an algebraic formula than standard prose; each word and punctuation mark, and even internal tabulation (numbering/lettering), is important. Pay particular attention to words that signal structural information, such as: and, or, either, include, limited to, except, unless, outweighs, all, other, shall, may. Also, notice whether any list set out in the statute is meant to be exclusive. The statute might tell you expressly that the list is not exclusive (e.g., "and any other factors relevant to the child's best interests"), or imply it (e.g., by introducing the list with a word like "including"). ### Exercise Examples. * Lawyer's Fee Reasonableness (Exercise 4-1, based on Model R. Prof. Conduct 1.5(a)): A lawyer's fee shall be reasonable, with factors including time/labor, novelty/difficulty, requisite skill, preclusion of other employment, customary local fee, amount/results, time limitations, client relationship, lawyer experience/reputation/ability, and whether the fee is fixed or contingent. The exercise explores applying these to scenarios like potential loss of future clients, irrelevant certifications, or tight deadlines. * Lawyer's Confidentiality (Exercise 4-2, Model R. Prof. Conduct 1.6(b)): A lawyer may reveal information relating to client representation if reasonably necessary for specific reasons: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent crime or fraud reasonably certain to result in substantial financial injury where lawyer's services were used; (3) to prevent, mitigate, or rectify such injury caused by client's crime/fraud where services were used; (4) to secure legal advice on rule compliance; (5) to establish a claim/defense in controversy with client, or respond to allegations; (6) to comply with other law or court order; or (7) to detect/resolve conflicts from employment/firm changes (if no attorney-client privilege compromise). Examples include revealing information for a fee suit, defending against bar association charges, or fearing a client might shoot their spouse. * Former Client Conflict (Exercise 4-3, Model R. Prof. Conduct 1.9(a)): A lawyer who formerly represented a client shall not represent another person in the same or a substantially related matter where that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing. Questions explore what a former client must prove, lawyer's defenses, and application in a divorce scenario where a lawyer previously represented one spouse and is now asked to represent the other. ## Identifying Issues. When identifying statutory issues, first read all identified material for context and key provisions. Then, return to the governing provisions for a more careful, word-for-word reading, looking for key terms that tell you what conduct the statute covers. One way is to focus on answers to the "5 Ws." Another is to ask what someone would have to prove to meet or not meet the statute's requirements. Underline key terms (answers to the 5 Ws) and circle relational terms (e.g., and, or, nor). Example (Cemetery Statute: Va. Code, § 56 (Michie 1942)): "No cemetery shall be hereafter established within the corporate limits of any city or town; nor shall any cemetery be established within two hundred and fifty yards of any residence without the consent of the owner of the legal and equitable title of such residence." Key terms identified include: Cemetery, hereafter, established, corporate limits, city, town, 250 yards, residence, consent, owner, legal title, equitable title. Relational terms include: or, nor, and, without. Each key term raises an issue for resolution, illustrating that statutes are tightly packed with important components. For instance, "cemetery" requires definition; "hereafter" implies a specific date; "established" needs criteria. Be cautious not to treat phrases as single key terms; e.g., "manifested intent" raises two issues: (1) actual intent and (2) sufficient manifestation. A helpful strategy is rewriting the statute in your own words for clarity, but do not rephrase the key terms, as they have developed specific legal meanings through authority. Exercise 4-4 (Fair Housing Act - 42 U.S.C. §§ 3601-3619): This exercise asks to underline words or phrases that raise potential legal issues in the following portion of the Act: "[I]t shall be unlawful . . . to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." Examples of terms raising issues include unlawful, refuse to sell or rent, bona fide offer, refuse to negotiate, make unavailable or deny, dwelling, person, because of race, color, religion, sex, familial status, or national origin. ## Interpreting the Statute's Language. Statutes are interpreted by case opinions; if binding case law exists, rely on it. If not, use other tools of interpretation: ### 1. The Text Itself. The most important inquiry is the "plain meaning" of the text. If unambiguous and not absurd, courts generally give effect to plain meaning. Look at the plain meaning, other parts of the statute or act for context (e.g., purpose section), and separate definition sections. Clues about a term's meaning can be found even if not explicitly defined. ### 2. The Legislature's Intent. When text is unclear, many courts try to determine legislative intent. This is problematic due to the collective nature of legislation, political compromise, and potentially unforeseen issues. Many courts consider legislative history (documents like committee reports, speeches, witness testimony, studies) as evidence of intent. ### 3. Policy. Analysis of policy concerns implicated by a particular construction. Some policies are part of legislative intent, while others may be unforeseen. If the legislature is silent, courts may consider which interpretation produces the best overall societal results. General policy leanings for specific statute types: * Statutes that change long-standing common law ("in derogation of the common law") should be strictly construed (read narrowly, minimal change to legal environment); * Statutes intended to remedy a problem ("remedial statutes") should be liberally construed (read broadly to accomplish purpose); * Statutes making certain conduct a crime ("penal statutes") should be narrowly construed (out of concern for citizen-accused rights); * General policy: construe a statute to be constitutional, if possible. ### 4. Agency Interpretation. When enforcement is assigned to an agency, its interpretation is often deferred to by courts due to expertise. Courts may also consider interpretations of agencies that routinely work with the statute but lack enforcement authority. Look for agency interpretations in their regulations, decisions, and case law. ### 5. Commentators and Other Courts. Courts may recognize persuasive value in opinions of other courts (value depends on factors from Chapter 2) and respected commentators (value depends on reputation and reasoned reliance on other tools of construction). ## Canons of Construction. Courts may also consider commonly accepted maxims of interpretation known as "canons of construction." Some generally applicable canons include: * Read the statute as a whole; * Give effect to rules of grammar and punctuation; * Construe technical terms technically and ordinary terms in their ordinary sense; * When the same language is used in various parts of an act, it is presumed to have the same meaning throughout; * Where general words (e.g., "and any other") follow a list, they should be construed to refer to things similar to the items in the list (ejusdem generis - "of the same genus"); * Modifying words or phrases refer to the possible referent immediately prior to the modifier; * Where a statute from state X is adopted in state Y, state X's court construction should be followed in state Y; * If the statute does not contain an exception for a particular situation, courts should apply the statute to that situation; * Absent clear indication, the court should presume that the legislature did not intend to enact a statute that impairs fundamental and commonly held societal values; * Specific descriptive of one or more situations implies the exclusion of other kinds of situations not mentioned (expressio unius est exclusio alterius); * Different statutes on the same legal issue (in pari materia) should be read consistently, especially where the legislature intended a consistent statutory scheme; * If courts have interpreted a word/phrase in a specific way, and the legislature subsequently enacts a different statute using that word/phrase, its language should be interpreted as having that previously given meaning; * Titles, preambles, and section headings (though not technically part of the statute's text) are persuasive evidence of legislative intent; * Legislature's subsequent lack of action to change a judicial construction may be evidence of legislative approval. None of these guidelines will provide a certain answer, and they might even support contradictory results. However, courts generally consider these guidelines, making them helpful for predicting or persuading a court. When relying on a maxim, cite to a persuasive case opinion that adopts it, if possible; courts will still consider the maxim's logic even without case authority.