Dear Student,
Welcome to The Law School Playbook! I’m Halle Hara, a professor of academic success and personal skills coach to law students and attorneys. I’m glad you’re here! We are continuing our discussion of reading and interpreting statutes. To recap the steps we have covered thus far, when approaching a statute, you must:
Step 1. Slow down
Step 2. Determine how the statute fits into the big picture. To do this, you’ll:
look at the table of contents and the surrounding sections
look for a section that defines key terms
Step 3. Look at the language of the statute itself and methodically break it down. To do this, you’ll either:
break the statute into elements, or component parts, and then analyze each one separately
use an “if / then” structure, with the “if” being the elements, and the “then” being the consequences in the text
create a diagram or flow chart identifying the parts of speech and punctuation
In any case, you’ll need to pay particular attention to the use of specific words, such as conjunctions, exceptions, and mandatory or permissive words. You’ll also pay attention to punctuation.
Our next step is to find the statute’s meaning using the text.
In turning to the words and phrases in the statute to determine its meaning, you’ll need to consider what is sometimes called the cardinal rule of statutory interpretation: the plain meaning rule. The plain meaning rule is a general presumption that the legislature used ordinary and everyday language when drafting the law. I think that’s worth repeating: the plain meaning rule is a general presumption that the legislature used ordinary and everyday language when drafting the law. But again, if the legislature defined the terms of the statute, you will use those definitions to understand the meaning. There are other internal sources you can use to determine meaning, such as how a particular word or phrase is used in another part of the statute. Lawyers arguing the plain meaning often rely on dictionary definitions and other canons, or maxims, of construction. We address those in more detail later.
But what if the meaning of a statute is unclear on its face? What if attributing the words their plain and ordinary meaning leads to an absurd or unintended result? As you are likely aware, statutory reading and interpretation hinges on whether the statute’s language is ambiguous. That is significant because if you can determine the plain meaning from the statute itself, you don't have to resort to outside materials or additional rules of statutory construction.
Ironically, the meaning of the term “ambiguous” itself has been the subject of some debate. As one article explains, whether a statute is ambiguous can be based on external or internal judgments that might not lead to the same conclusion. That is:
to say that a statute is ambiguous could be a claim that ordinary readers of English would disagree about its meaning, which we will call an external judgment. Or it could be a private conclusion that, regardless of what others might think, the reader is unsure how best to read the text—which we will call an internal judgment.
Rather than engage in that debate (but it’s good to know it exists), we’ll accept a practical definition and say that ambiguity exists if the text is capable of being understood more than one way.
It is worth noting that there will be times when the legislature appears to have intentionally used words or phrases that are ambiguous or vague, leaving the court to decide what they mean. Words or phrases that appear intentionally ambiguous or vague are generally known as “weasel words,” and they include terms and phrases like “reasonable,” “substantial,” “when justice so requires,” and “the best interests of the child.”
What the court does with those types of words, or ambiguous and vague statutory terms in general, will depend on its interpretive strategy. For example, a textualist judge will look only to the language of the law, but may consult a dictionary to determine the meaning of a disputed term.
In contrast, if the judge is an intentionalist, the judge will focus on the meaning that the legislature intended to give the statute. Stated differently, the judge will look for legislative purpose. The legislative purpose may appear in the statute itself in what’s known as a preamble or purpose clause. If the purpose is unclear from the statute, intentionalist judges are willing to embrace outside information, such as legislative history, to determine the meaning.
A third interpretive theory is pragmatism. A judge adopting this theory embraces the idea that statutory language does not have a fixed meaning. The judge will therefore use the interpretation that the judge feels will produce the best result. In doing so, the judge may look to policy or societal values.
So what are the tools you can use as an advocate to prompt the court to adopt a statutory interpretation that is favorable to your client? Those tools are called canons, or maxims, of construction. We will discuss them in further detail in the next episode.
If would you like to read this episode, get suggestions for further reading, or to request individual coaching with me, please visit my website at www.lawschoolplaybook.com.
As always, do your best, and I’ll be rooting for you!
References and Further Reading
Ward Farnsworth, Dustin F. Guzior, & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry Into Legal Interpretation, Vol. 2, No. 4 Journal of Legal Analysis 280 (2010).
Richard Michael Fischl & Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams 39–49 (1999).
E. Scott Fruehwald, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals 126–130 (2013).
Georgetown University Law Center: A Guide to Reading, Interpreting and Applying Statutes (2017). https://www.law.georgetown.edu/wp-content/uploads/2018/12/A-Guide-to-Reading-Interpreting-and-Applying-Statutes-1.pdf.
Jane Bloom Grisé, Critical Reading for Success in Law School and Beyond 243–251 (2017).
Sarah Landrum, Law School Success: Tips for Reading Statutes (Feb. 13, 2015). https://lawschoolacademicsuccess.com/2015/02/03/statutory-interpretation/.
Deborah Maranville, Teaching Statute Reading Basics in a First Year Doctrinal Course: A “Handout” and Suggested Exercises, Law Teacher, Inst. For Law. Sch. Teaching 18–20 (Spring 2013).
Ira Nathenson, How to Read a Rule or Statute (Sept. 12, 2014). https://www.nathenson.org/courses/civpro/resources/how-to-read-a-rule-or-statute/.
David Romantz & Kathleen E. Vinson, Legal Analysis: The Fundamental Skill, 87–88 (2d ed. 2009).
Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 151–163 (2009).