7.3 READING AND UNDERSTANDING THE STATUTE

Any time you make an argument about statutory interpretation, you must begin with the statute’s plain language, because that’s the first thing any court looks at when construing a statute.

What courts mean by “plain language” can vary widely. Courts will sometimes restrict their purview to the words or phrases at issue. If this view leaves them dissatisfied, however, they will look to the structure of the sentence that the controversial language appears in, or broaden their focus to include the paragraph, provision, chapter, or title. When making statutory arguments, therefore, you should be sure to become familiar with the context in which the statutory language operates.

Whenever you are addressing a statutory issue, you should start by reading the language at issue. Even if that language seems “plain” or “clear,” however, don’t stop with the language in controversy. Too often, I read student briefs that miss fertile ground for argument because the students seem to have read only one paragraph — or even only one sentence — of the statute at issue. Whether you are arguing that a statute should apply to a client’s case or that it should not, you should take the time needed to make sure you understand the statute as a whole.

First, read the whole provision. Let’s say you are reading § 333.33(b) of the State Revised Code. Of course, you should read all of paragraph (b), but don’t stop there. Read all of § 333.33. Look in particular for definitions of terms used in paragraph (b); you can use those to argue how the statute should be interpreted. Look also for cross-references to other statutes; you might be able to argue that interpretations of those statutes are relevant here. Pay attention to introductory language that precedes paragraphs and sub-paragraphs. For example, sometimes introductory language may include a negative, stating that certain provisions do not apply to the following circumstances.

After you have read all of § 333.33, read the whole chapter that it’s in. On most research databases, you should be able to look at a table of contents for the whole chapter, and even for the whole title. Use that step only if you don’t have time to read the whole chapter, or if the statute is inordinately long (e.g., the Affordable Care Act). Read the table of contents closely to see which provisions are likely to be relevant. Obviously, look for provisions that seem to relate to your provision, to the controversy in your client’s case, or to both.

In addition, there are four types of provisions that are frequently relevant to legal arguments. First, you should always look for separate definition provisions: Sometimes legislatures will begin a chapter or a title with definitions that apply to the whole chapter or title, even if some provisions also include definitions for particular terms within those provisions. Be aware, too, that some legislatures have catch-all definition provisions that may apply across several different chapters of a state code. The word “highway,” for example, might apply in chapters related to roadway improvements, to vehicular homicide, and to operating a vehicle while intoxicated. Second, look for a “purpose” provision; if the legislature has enacted such a provision, it will generally appear early in the Act.

After you have looked for the definitions and the statutory purpose, look for provisions that address “penalties” or “remedies” or “enforcement.” Again, the legislature may enact one provision that articulates remedies for a whole chapter or a whole title. Local custom may have an impact here; in Ohio, for example, this provision is typically the last provision in the chapter, and always has the number.99. Finally, look to see if the legislature has delegated rule-making or enforcement authority. As will be discussed below, these regulations are often a meaningful extrinsic source for statutory interpretation. Look for provisions with titles like “Regulations” or “Rulemaking Authority.” 29 U.S.C. § 2654 of the FMLA, for example, is entitled “Regulations,” and it provides that “[t]he Secretary of Labor shall prescribe such regulations as are necessary to carry out subchapter I and this subchapter.” Knowing which agency has rule-making or enforcement authority can give you a new focus for your research.

I have one more item on the “always” list. If, as will often be the case, you are arguing about the meaning of a word or phrase in the statute, search for that word, or for meaningful words within the phrase, throughout the whole Act. By the “Act,” I mean the set of statutes or provisions that make up a particular legislative enactment. Designation of an act may vary depending on the legislative body. As noted above, the FMLA’s provisions are “codified” (that is, given particular numbered labels in the U.S. Code) in several provisions of Title 29 of the United States Code. You will often see the FMLA cited as “29 U.S.C. §§ 2601 et seq.” “Et seq.,” which is an abbreviation of et sequentes, means “and the following.” The FMLA is codified in provisions from § 2601 to § 2654.

Searching for each use of a term can help you craft arguments. If, for example, you are arguing that the word “employee” should include not only employees, but also applicants, you will want to see how the word is used in the rest of the statute, and of the Act. You may see that the legislature uses the term elsewhere in the Act in ways that make clear that the legislature was conflating the concepts of “employee” and “applicant.” Likewise, if you are arguing about the meaning of a term like “qualified owner,” you should look for uses of “qualified” and “owner” separately, as well as together. It can be very persuasive to show a court that other uses of a word or phrase are consistent with the argument you are advancing.

With most statutes, this level of reading should give you a good grasp of how the statute works. As you know, however, judicial gloss can have a significant impact on seemingly plain statutory language. Thus, before you consider that you are “done” with your initial read-through of the statute, take a quick look at relevant interpretations of the statute, and of the language at issue in particular. If the statute is known by a popular name, you might look for cases or law review articles that include both the popular name and your statute number and language (e.g., “boat owner protection act” and 333.33 and “qualified owner”).

By reading about how courts and commentators talk about the statute as a whole, and your language in particular, you can get a good idea of the chutes and ladders that will hurt and help your argument. That doesn’t mean that you have to agree with interpretations that you read; it can help, however, to know the conventional wisdom about the meaning of your statute.