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.

Article on legal research in Australia

DEVELOPING LEGAL RESEARCH SKILLS: EXPANDING THE PARADIGM

Terry Hutchinson

32 Melb. U. L. Rev. 1065 (2008)

Article abstract:

This article explores the development of tertiary legal research skills education in Australia in the underlying context of Australian legal education and the transformation of legal research resulting from advances in information technology. It argues that legal research is a fundamental skill for lawyers and that research training in a law, degree must cater for the vocational needs of the individual student w1hether their ultimate focus is practice or higher degree research. It argues that the traditional doctrinal paradigm of legal research is no longer sufficient for modern lawyers and that exposure to additional methodologies needs to be included in research training units. This article argues that w1hile legal research skills education has changed it must continue to develop in order to better cater for the needs of students, the profession and the academy in the contemporary legal environment.

Dispelling Myths about Legal Research and Writing

Some years back Professor Mark Cooney of Thomas M. Cooley Law School had an interesting, concise piece “Get Real About Research and Writing,” 32 (No. 9) Student Lawyer 18-24 (May 2004) on the importance of legal research and writing (LRW) that importantly dispels the following 10 myths about LRW:

Myth 1:  You can choose a practice area where you won’t need strong research and writing skills.

Myth 2:  In legal writing classes, students learn only how to write.

Myth 3:  New lawyers impress their bosses the most with oral advocacy skills.

Myth 4:  Research and writing doesn’t win cases–oral advocacy does.

Myth 5:  Your primary reader will always be a judge with a good working knowledge of the area of law you’re writing about.

Myth 6:  Using simple words is not lawyerly and means you’re dumbing it down.

Myth 7:  It’s the reader’s fault if he or she misunderstands what you wrote.

Myth 8:  Grammar, style, organization, and other details don’t matter because they’ll go unnoticed.

Myth 9:  All the research tools and resources readily available in law school will be readily available in practice.

Myth 10:  You won’t need to research the controlling cases and statutory law.

For further description of and information on  LRW,  see Stanford Law School’s Legal Research and Writing Program webpage and resources.

Understanding and Mastering The Bluebook

A recent legal research and writing (LRW) title of interest concerning The Bluebook: A Uniform System of Citation) is:

Understanding and Mastering The Bluebook : A Guide for Students and Practitioners
by Linda J. Barris

Type:        Book; English
Publisher:    Durham, N.C. : Carolina Academic Press, ©2007.
ISBN:    9781594603655 1594603650
OCLC:    123391085
Related Subjects:
Citation of legal authorities — United States.
Annotations and citations (Law) — United States.

Table of Contents:
Chapter 1: Getting Started
Chapter 2: Cases
Chapter 3: Statutes
Chapter 4: Constitutions
Chapter 5: Secondary Sources
Chapter 6: Procedural and Court Rules
Chapter 7: Litigation Documents and Record Citations
Chapter 8: Signals and Explanatory Parentheticals
Chapter 9:    Quotations
Chapter 10: Capitalization
Chapter 11: Numbers, Numerals and Symbols
Appendix: Citing Electronic Sources