7.6 RESEARCHING STATUTORY INTERPRETATION ARGUMENTS
Once you know that a specific statute governs your client’s situation, and that this statute’s interpretation is in controversy, your concern is how best to make statutory interpretation arguments.
Many issues of statutory interpretation are relatively straightforward, even if they bring up new issues. But if you are reading this chapter, you are probably working with a statute whose application is not straightforward. What is your next step? Essentially, you want to know how the mandatory jurisdiction has interpreted the statute at issue, and particularly the language at issue; in addition, you want to know how your jurisdiction interprets statutes generally.There are two easy ways to find cases that have interpreted a particular statute. The first step, and perhaps the most often neglected one, is to consult the “notes of decisions,” in online or paper versions of the code. These notes of decisions are organized by topic, and they can allow you to quickly browse through one-paragraph summaries of a variety of decisions. A main benefit of any type of “browsing” research (e.g., browsing through titles of sections in a statute, browsing through titles of law review articles, browsing through an index) is that it allows for serendipity: You may discover something that you did not realize you were looking for. If you were researching the definition of “employer” under Title VII (42 U.S.C. § 2000e), for example, you’d see that an “agent” of an employer can be considered an employer. In browsing through the headings under the notes of decisions, you’d see a heading for “agents,” and then you’d see a sub-heading for “Agents — coworkers.” These cases might lead to a new angle for argument, especially if your client is claiming discrimination at the hands of a supervisor and a co-worker.
In addition to reading notes of decisions, you should conduct appropriate Boolean (terms and connectors) research.
As you may know, one way to articulate a Boolean search is to think about how courts talk about the issue, and to imagine one or more sentences that would appear in a useful source. If you have already read excerpts from law review articles as you conducted your initial reading of the statute, you should already have some familiarity with how courts talk about the statute in your case. For example, a federal statute banning employment discrimination has a definition section codified at 42 U.S.C. § 2000e, that is, Title 42, Section 2000e. In reading about this statute, however, you would find that courts often reference “Title VII” when discussing it. You have probably heard many faculty members and fellow students reference this civil rights law with this label, without knowing why they do so. The original congressional action, the Civil Rights Act of 1964, was organized around several different types of discrimination, each of which was addressed under a different “title.” Because Title VII was so significant, its laws banning discrimination in employment — which were codified in Title 42 of the U.S. Code — are often still referred to as “Title VII.”36Essentially, “Title VII” is sort of a nickname for the part of the Civil Rights Act of 1964 that bans employment discrimination.If you wanted to find cases that talked about the definitions section of Title VII, you could imagine a court saying, e.g., “The Title VII definition of ‘employer’ does not include...” followed by a cite to 2000e. A court might also say, of course, that “42 U.S.C. § 2000e defines ‘employer’ to include...” or “Title VII, which bans discrimination in the workplace, defines ‘employer’ as follows.” You would see that three foundational terms are the statute number, the words “Title VII,” and the concept of a definition. The following search would likely get you to cases that discuss, or at least mention, this provision:
(2000e or “Title VII”) / s (define or definition)37/ s employer
Unique statute numbers are almost always useful search terms, especially when they are combined with relevant concepts from the statute (like “employer” in this example).
Next, if legislative history may be relevant to your argument, you can and should conduct traditional legislative history searches. A quick-and-dirty alternative, however, is to look for law review articles and cases in which courts and commentators discuss the relevant legislative history. You may be able to quote the same legislative history they have cited; on the other hand, by looking for and reading the legislative history they have cited, you may be able to find other, more relevant aspects of the legislative history. Fortunately, it’s relatively easy to discover if any courts or commentators have discussed the legislative history of your statute: Use the statute number or nickname in a search with the term “legislative history”:(“Title VII” or 2000e) / p “legislative history”
If you get too many hits, try filtering it with a relevant term from the language in controversy in your case. Of course, you know that you need more than arguments about legislative history; you want to find cases in which the court has talked about applying statutory interpretation principles to the controversial language in that statute. You might try your original search, but then add concepts related to statutory interpretation. For example, as you know, the concept of “plain language” is the starting point for most issues of statutory interpretation. Some courts use the phrase “plain meaning” to make the same point; likewise, courts talk not only about statutory “interpretation,” but also about how they “construe” statutes, or about statutory “construction.” Thus, a sentence that would appear in a case that spent a significant amount of time on statutory interpretation might say, for example, “Whenever we must interpret a statute, of course, we begin with plain language”; or “Plain meaning is the cornerstone of statutory construction.” You would expect that sentence to be in the same case as some sort of discussion of the statutory citation, or the language at issue.
When researching a controversy about the meaning of a term in Title VII’s definitions section, the following search, in the appropriate database, might lead you to fruitful cases:((2000e or “Title VII”) / s (define or definition)) & ((statut! /3 interpret! or constru!) /s (plain /3 language or meaning))
But let’s say that you are researching a new angle on the interpretation of your statute. Your jurisdiction has not addressed it yet, but others have. In doing your research, you see that in some jurisdictions, courts have applied particular statutory interpretation principles. Accordingly, the best way to “harvest” that argument would be to see how your jurisdiction has used that principle when it analyzed other statutes. In that situation, you should use the phrases-that-pay from the principle (in Latin and in English, if appropriate) as part of your Boolean search. Let’s say that you have seen that some courts have used the esjudem generis canon as it relates to your statute. You know that the courts in your jurisdiction have not applied that canon to your statute, but you want to see if you can argue by analogy. Your first step might be to try to find all cases in your jurisdiction that go into some depth of discussion on statutory interpretation, and then to narrow that search. Thus, you might start with a search that focuses generically on statutory interpretation:
(statut! /3 interpret! or constru!) /s (plain /3 language or meaning)
You could then “filter” that search by adding the concept of ejusdem generis. In reading ejusdem generis cases, of course, you might notice other language that courts use when discussing that canon. They say things like “more specific provisions govern over more general ones,” or “when general terms are followed by more specific terms....” You could use language from those discussions as alternative search terms. Thus, the following search might be a good filter search:
“ejusdem generis” or (specific! /3 general!)
While “general” and “specific” might not normally be good search terms, if you search for them in the context of cases that are focused on statutory interpretation, you are more likely to find relevant authorities.
To conduct Boolean research effectively, it is crucial to learn about how courts and commentators talk about the issues so that you can experiment with language that’s relevant. Knowing the names of popular canons is not enough; some courts apply canons without using the popular names.Finally, the principles of the abstraction ladder are relevant to statutory interpretation research. Unless you are making an in pari materia argument, do not presume that you must look for cases interpreting identical statutes. In 2014, for example, the Seventh Circuit was deciding whether it could defer to a newer regulation when it was aware of an older court opinion that had each interpreted a statute that regulated cost calculations for Medicare reimbursement.38It relied significantly on its analysis of a Supreme Court case that had ruled that the Federal Communications Commission had lawfully interpreted the Communications Act when it made a ruling about cable companies and internet access.39 On the surface, the two cases do not seem to have much in common. But the Seventh Circuit was on the correct rung of the abstraction ladder when it noted that “[t]he problem of deciding whether a subsequent administrative regulation should be applied in spite of a contrary earlier judicial interpretation of a statute is not new.”40 So when looking for relevant cases in the mandatory jurisdiction, ask yourself what the problem is. Is this a problem of specific language versus general language? Is it a problem about whether a list is a set of examples versus a set of limited possibilities? Use the abstraction ladder and look for the legally significant categories.