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! Today, we are picking up our ongoing discussion of reading and interpreting statutes. We will discuss the final step in this episode, which is to resolve ambiguities or to add clarity to vague language.
There are volumes of books written on the rules for construing statutory text, which are more formally known as the canons of construction. There are so many canons of construction that some even conflict with one another. For that reason, we won’t cover them all here. It is helpful to know that the canons generally fall into several broad categories, which include:
linguistic canons that pertain to grammar rules and usage; and
substantive canons that concern legislative intent and policy
Let’s look at some commonly used canons:
Legislative Intent: this canon endeavors to interpret the statutory language in a way that furthers the purpose of the statute. Thus, this approach considers the legislative history, which is the documents and transcripts created during the enactment process. These documents include the bill, amendments, reports, and debate transcripts. Of all of these, the report of the committee tasked with reviewing and amending the bill is given the most weight. Circling back to our discussion of interpretive strategies in the last episode, a textualist judge would decline to look the legislative history (instead focusing on the language of the text), but an intentionalist judge would welcome legislative history that reveals the meaning that the legislature intended to give the statute.
Common-Law Meaning: an undefined statutory term shall be construed consistent with prior court decisions as to its meaning. Thus, this approach considers judicial opinions to give meaning to undefined statutory terms. It’s really a variation of stare decisis.
Internal Consistency: a presumption that statutes are internally consistent.
Avoid Surplusage: this canon presumes that the legislature intended to give every word in the statute an independent meaning. Thus, no word should be ignored or regarded as mere surplusage.
Negative Implication: this is generally regarded to mean that the legislature’s expression of one thing implies the exclusion of others. The idea is that the legislature is very careful in selecting its terms and, if a term is not included, that is presumed to have been intentional.
Avoid Absurdity: a presumption that the legislature did not intend an absurd or manifestly unjust result. On rare occasions, textualist judges will make an exception to look beyond the text when faced with an absurd result or an obvious drafting error.
Lenity: a canon of last resort stating that if a statute pertaining to a crime or imposing a penalty is ambiguous, that ambiguity shall be resolved in favor of the defendant. This canon is derived from the principle of fair notice.
So let’s put all of the steps together. To read and interpret a statute, you must:
Step 1. Slow down (think barbecued brisket, remember?)
Step 2. Determine how the statute fits into the big picture by:
looking at the table of contents and the surrounding sections
looking for a section that defines key terms
Step 3. Look at the language of the statute itself and methodically break it down by either:
breaking the statute into elements, or component parts, and then analyze each one separately
using an “if / then” structure, with the “if” being the elements, and the “then” being the consequences in the text
creating a diagram or flow chart identifying the parts of speech and punctuation
Remember 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.
Step 4. Find the statute’s meaning using the text and determine if the language is ambiguous or vague
Step 5. Finally, resolve ambiguities or add clarity to vague language using the canons of construction
In closing, I’ll say that knowing the rules of the game as set forth in these episodes is just the beginning. Really, the most important piece is you: reading and interpreting a statute, and crafting an argument concerning a statute, require you to be a patient, critical reader and thinker. As Tom Hanks, my favorite actor, said in a League of their Own, “It's supposed to be hard. If it were easy, everyone would do it. The hard is what makes it great.”
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
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.
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 89–96 (2d ed. 2009).
Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 167–170 (2009).