Defining definitions

 

Here’s a new article by a law librarian about statutory definitions:

Price, Jeanne Frazier. “Wagging, not barking: statutory definitions,” 60 Cleveland State Law Review 999-1055 (2013).

And here’s its abstract:

 

 

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader’s understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some cases, definition serves predominantly a communicative purpose; it clarifies the speaker’s intent. But at other times the legislative definition empowers; it serves a performative function, investing groups of individuals or instances with rights or obligations. The Article suggests that a better understanding of the effect of definition on a reader’s interaction with a text, coupled with an appreciation of the different roles served by definition, will enable legislators to draft more useful definitions and enable interpreters to better apply those definitions.

 

The superhero approach to legal research

We haven’t asked our students to buy a textbook in advanced legal research for a long time.  The existing books are just too darn expensive.  But a new book crossed my desk today that looks particularly useful for teaching legal research; it is:  The Law of Superheroes (catalog record copied below).

This book starts with three pages explaining “Legal Sources and Citations” that explain legal citation about as well as anything I’ve seen.  It also points the reader, presumably the lay reader, to sources of free law:  Google Scholar for legal opinions; Cornell’s LII for the United States Code.  Peter Martin is cited on page xiii, so this tells me the authors know their research!

Throughout the book are wonderful footnotes explaining, in the clearest language possible, different aspects of legal research.  For example, footnote #4 on p. 113:

. . . Restatements of law are scholarly works that attempt to set forth the majority position on particular areas of law or recommended changes to the majority position.  They mostly cover subjects that are still primarily common law rather than those based on legislation. The Restatements are not law themselves, but courts often find them persuasive, and many sections of various Restatements have been adopted as law by state courts.

The section on immigration (is Superman a citizen?) offers a great explanation of private laws:

Private Acts of Congress

There’s another way that someone can become a citizen without going through the immigration process: a “private act” of Congress, i.e., a law targeting a specific person and declaring him or her to be a citizen.[fn 9]  Although unusual today, private acts have a long history in the United States.[fn10]  . . . As a matter of fact, in at least one story, Superman is granted citizenship by every country in the world, presumably by their respective versions of a private act of Congress. . . .

9. . . . These bills are not very common, nor are they usually passed, but it happens.

10.  In fact, for decades after the founding of the country, private acts by state legislatures were the only way for a legitimate 9i.e., non-annullable) marriage to be dissolved.  Similarly, prior to the passage of general incorporation statutes, which create the procedures by which corporations may be chartered with state-level secretaries of state, creating a corporate entity required an act of the state legislature.

The sections on international and interplanetary law are really fun, and explain the very basics of “law” itself:

The important thing to remember about international law . . . is that international law is a matter of custom and practice as much as it is anything else.  This is true of domestic law as well, and is really the reason the common law exists: a “law” is, essentially, a custom or tradition that is enforced by a government.  In the case of common law that tradition is built up by the decisions of the courts. . . .

I may have more to add later, as I’m taking this book home with me for the Thanksgiving break.

Here’s its catalog record:

The law of superheroes / James E. Daily and Ryan M. Davidson.

At the Library:
Crown (Law) > Basement > PN56 .L33 D35 2012

Bookmark: http://searchworks.stanford.edu/catalog/9734665

 

PSSST . . . Wanna Buy a Law?

From the December 5 – December 11, 2011 issue of Bloomberg Businessweek:

Psst . . . Wanna Buy a Law?

“When a company needs a state bill passed, the American Legislative Exchange can get it done” p. 66

How the American Legislative Exchange Council turns a bill into many, many, many laws.

By Brendan Greeley and Alison Fitzgerald.

Illustrations by Luke Best

The American Legislative Exchange Council, a nonprofit based in Washington, brings together state legislators, companies, and advocacy groups to shape “model legislation.” The legislators then take these models back to their own states.  About 1,000 times a year, according to ALEC, a state legislator introduces a bill from its library of more than 800 models.  About 200 times a year, one of them becomes law.  The council, in essence, makes national policy, state by state.

How to Use Legislative History to Teach Grammar

Anyone teaching the importance of legislative history in legal research need only point to a single punctuation mark: the mighty comma.  As a disclaimer, I strive to put my years of Latin classes to good use, but do not profess to be punctuationally-perfect.  (Interestingly, the Romans did not use modern punctuation, but I digress…)   One thing I do know, however, is that other people’s grammatical shortcomings sure can wreak a lot of havoc… making them a great teaching tool.

This past week, I was researching a state statute that, among many other things, imposed conditions on persons who had committed a “felony or misdemeanor crime of domestic violence.”  At first blush, one would read this to mean that the conditions apply to persons involved in domestic violence felonies and misdemeanors.  Get this:  That provision actually governs anyone who commits either a “felony” or a “misdemeanor crime of domestic violence.”  In other words, we should really be reading a comma into the statute between “felony” and “misdemeanor” where the legislators neglected to put one!

Uncovering the latent comma was not easy.  News articles referred to the imposition of the conditions on felons, but without citing the supporting statutory clause.  Secondary sources referred to conditions emanating from the “domestic violence clause” of the statute, failing to illuminate that the clause also covers all felonies.  Case law cited the statute as creating certain conditions, but decided matters on other grounds.

The best recourse was to trace the historical progression of the clause, which I was able to do through older versions of the statute and the legislators’ own analysis.  Earlier iterations made no reference to domestic violence whatsoever, as the clause originally pertained to persons who had committed any felony.  Years later, the legislature added “or misdemeanor crime of domestic violence,” but failed to demarcate this clause with a comma that would have resolved ambiguity.  If the legislators had simply written “any felony, or misdemeanor crime of domestic violence,” I would have spent fifteen minutes on a project that instead took five hours!  (Note:  I do not require legislators to bold, italicize, or underscore the comma; any font or stylization will do!)

Do you have any grammar-related teachable moments you’d like to share?  We’d love to hear them and pass them along to our classes.  To that end, I particularly enjoyed Prof. Susan J. Hankin’s “Statutory Interpretation in the Age of Grammatical Permissiveness:  An Object Lesson for Teaching Why Grammar Matters,” which references recent literature on the subject and also offers some great case law examples to use in class.

Legacy of Emperor Justinian in Argentina: Primer Digesto Jurídico Argentino

Taking a cue from the Byzantine Emperor Justinian’s Corpus Juris Civilis, Argentina is in the final stages of creating a compilation of national legislation known as the “Primer Diegsto Jurídico Argentino” This is a project to analyze, systematize and harmonize all national laws since the 1850s. Redundant and obsolete laws will be identified and removed from the statute books.

Over 200 academics, judges, attorneys and legislators have been working on this monumental project since 2005. They have analyzed around 30,000 laws since 1853.

In July, the Argentine executive branch presented an initial draft to the congress. On Thursday and Friday of this week, a major conference will convene in Buenos Aires to discuss how specific areas of law will be impacted by the Digesto Jurídico Argentino.

Information about the national conference, including a list of speakers is available at:
Primer Congreso Nacional del Digesto Jurídico Argentino
September 1 and September 2, 2011
http://www.mpf.gov.ar/ics-wpd/DocumentosWeb/LinksNoticias/Primer_Congreso_Nac_Digesto_Jur_Arg.pdf

Legislative History Research: A Basic Guide

Legislative History Research: A Basic Guide
INFOdocket
Information Industry News + New Web Sites and Tools From Gary Price and Shirl Kennedy
CRS — Legislative History Research: A Basic Guide

Posted on June 20, 2011 by fulltextreports
Legislative History Research: A Basic Guide (PDF)

    This report provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources. This report will be updated as needed.

Source: Congressional Research Service (via Federation of American Scientists)
Hat tip to the always useful-to-follow Boley Law Library in Portland, Oregon (to follow on Twitter, it’s:   @lawlib )

Legal Research Methods in a Modern World: A Coursebook

Together with my Stanford Law School colleague George D. Wilson and our friend and Danish legal scholar Henrik Spang-Hanssen, we have just published the third edition of our legal research book, a revision of Legal Research Methods in the U.S. and Europe, 2nd Edition.  But with the inclusion of short but good (in my opinion) chapters on legal research in China and Russia and some other materials, we have changed the title to Legal Research Methods in a Modern World: A Coursebook.

The book, now weighing in at 453 pages (and bargain priced at $ 55.00), is rich with illustrations and peppered with legal research tips.  My contribution is mainly Chapter 5, about legal research methods in the United States, and it is based upon and follows the advanced legal research class that I co-teach here at Stanford.  New to this edition, in addition to other updates, is the inclusion of research exercises that we have found most useful from the class.  I did not include the answers — because I hope to continue to use these exercises — but I would be very happy to share the answers and my thoughts on approaches with other instructors of legal research.

The legal world is certainly getting smaller, and it is our shared belief that this would be handy book for any attorney to have as he or she deals with lawyers from other countries and their legal cultures.

The book should be available from Amazon.com; but if not, or if you want to order copies in mass quantities, the U.S. distributor is International Specialized Book Services.  For other countries, the distributor is Marston Book Services.

We also have a corresponding website here.

European Parliament Video: Legislative Amendment Process

Europarl TV has produced a short 2 minute and 30 second video on the legislative amendment process in the European Parliament. 

The Art of the Amendment

http://www.europarl.europa.eu/news/public/story_page/008-72110-096-04-15-901-20100406STO72099-2010-06-04-2010/default_en.htm

The Constitutionality of Presidential Signing Statements

Faith Joseph Jackson, “The Constitutionality of Presidential Signing Statements: A Note on H.R. 5993 – The Presidential Signing Statements Act of 2008,” 35 Journal of Legislation 1 (2009).

Abstract:

This legislative note will examine H.R. 5993, the Presidential Signing Statement Act of 2008, by addressing the history of presidential signing statements, the use of presidential signing statements by recent administrations, and what gave rise to the American Bar Association Task Force on Presidential Signing Statements and Separation of Powers Doctrine.   This paper will also discuss the contents of H.R. 5993, the likelihood of it passing muster through Congress and the executive branch, and if so, its impact on current administration and its immediate successor.”

Life and Death of Legislation in the 110th Congress

Fascinating new study by the folks at the Sunlight Foundation has just been released.

The Life and Death of Congressional Bills in the 110th Congress:A window into what happens to bills in congress,” seems to be a must-read for anyone who teaches legal research.

So, for the 110th congress, did you know:

  • there were 11059 bills introduced
  • of those, 3724 were introduced in the Senate and 7335 were introduced in the House
  • 442 bills became law — 4% of the bill introduced
  • and, most bills died in the committee of the chamber where it was introduced

And, they have all sorts of graphs and charts for you to get a real visual insight into the life cycle of legislation.

[hat tip to Ellen Miller]