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 Blogging by Chinese Judges

Professor Anne Sy Cheung’s article in the Harvard International Law Journal includes a couple of interesting findings that merit further investigation.

On page 267 of the article, Prof. Sy Cheung writes:
“While Blogging by judges may be an unusual phenomenon in common law countries, it is not unusual in China. In fact, more than half of the bloggers in this study wrote in their real names.”

Table 1 of the article breaks down the content of blog postings by Chinese judges.  Nearly 34% of the blog postings related to legal research.

Appendix IV lists the most common legal research question asked by the judges:

1. Copies of laws, regulations, and rules as well as comments on them.
2. Comments and opinions on draft legislation.
3. Criticizing the Rules of Payment of Court Fees issued by the State Council in December 2006.
4. Researches on a broad range of topics, such as compensations for damages to person happened in schools, the principle of innocence, problems of the Property Law of the PRC, role of the procuratorate, land system and land reform, citizens’ rights and freedom, real estate development and house transactions, labor disputes including payment of wages and salaries, and compensation for damages to accidents at work, and introduction of the spiritual compensation to civil suits collateral to criminal proceedings (some of these researches have been published in journals by the writer, blog owner).
5. Discussions on the tradition of Chinese culture and law.
6. Copies of court decisions that have come to effect.
7. Judicial interpretations issued by the Supreme People’s Court.
8. Routine work of the courts.
9. Introduction of Western legal theory, thought, and practice.
10. Questions and answers for various post-followers.

Exercising Freedom of Speech Behind the Great Firewall : A Study of Judges’ and Lawyers Blogs in China
Harvard International Law Journal
Vol. 52 , April 2011
http://www.harvardilj.org/2011/04/online_52_cheung/

In you are interested in legal research issues in China, don’t forget about the Chinese and American Forum on Legal Information and Law Libraries Conference in Philadelphia in July. Information on program sessions and speakers is available at
http://cafllnet.org/annual-conference/

Book on French Legal Information

Stéphane Cottin, French lawyer and librarian,  has published a new book on legal information in France.

La gestion de la documentation juridque (Management of Legal Information)

Stéphane Cottin and Cédric Manara

L.G.D.F. Lextenso éditions, 2011

The book not only covers how to find legal resources, but also indicates how legal information is produced and disseminated in print and online.

Written for students and legal professionals.

Table of contents available here:

http://www.lextenso-editions.fr/ouvrages/document/229885

Book preface available here:

http://www.cedricmanara.com/reprint/preface-du-livre-de-stephane-cottin-la-gestion-de-la-documentation-juridique-lextenso-editions/

Curious footnote: Legal Research at French Law Firms

Prof. Pierre-Yves Gautier’s book chapter ” The Influence of Scholarly Writing Upon the Courts in Europe” includes this curious endnote:

“It is the author’s understanding that in some of the major law firms in France partners prohibit junior solicitors from doing research mostly on the internet or databases. Research must always start on paper.”

See Pierre -Yves Gautier. The Influence of Scholarly Writing Upon the Courts in Europe in Mary Hiscock and William van Canegem (eds.). The Internationalisation of Law: Legislating ,  Decision-Making, Practice and Education. Edward Elgar, 2010. page 210.

Perhaps some  of our readers in France or those with experience in Parisian firms could confirm this. If true, I wonder if cost or research methodology is the primary motivation for restricting online resources?

 

 

 

 

 

 

 

Legal Research Guide to Canadian Statutes

Legal Research Guide to Statutes

Eric B. Appleby

Maritime Law Book, 2007

http://www.mlb.nb.ca/site/ffiles/statute.pdf

From the introduction:

This legal research guide is meant to provide instruction on how to find cases that are relevant to an issue in the law of statutes and statutory interpretation. This guide does not provide instruction on how to find statutes or regulations.

Table of Contents

1. The language of statutes – common terms defined

2. Operation and effect of statutes

3. Operation and effect, on earlier statutes

4. Interpretation of Statutes

5. Remedial Statutes

6. Penal Statutes

Hat tip: Ted Tjaden.  One of many nuggets in his excellent book “Legal Research and Writing,” 3rd Edition.

U.S. Law Librarian Teaches at Wuhan Law School (China)

Recent posting on SSRN:

Teaching Foreign and International Legal Research at Wuhan University (Wuda) Law School

Roy L. Sturgeon

Touro College Jacob D. Fuchsberg Law Center
October 8, 2009

Abstract:  

Prof. Sturgeon, an American academic law librarian and Chinese law specialist, reports on his May 2009 experience as a visiting professor of legal research at a prestigious mainland Chinese university.

Keywords: Wuhan University, Wuda, China, Overseas Young Chinese Forum, teaching fellowship, foreign legal research, international legal research

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1485604

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.

More On Bloomberg’s BLAW…

Hello BLAW: Bloomberg Law, the Newcomer in Legal Research, Meets Academic Users, 13(5) AALL Spectrum 16-19 & 31 (March 2009)

Federal District Court Judges and Clerks

So while I was looking at the Albany Law Review (see earlier post), I noticed another really interesting article:  “Inside Judicial Chambers: How Federal District Court Judges Select and Use Their Law Clerks,”  written by Todd C. Peppers, Micheal W. Giles and Bridget Tainer-Parkins (71 Albany Law Review 623 (2008)). 

The article states: “The results confirm the importance of performance-based factors, such as law school class ranking, in the selection process for short-term clerks.  They also highlight the considerable importance of candidate personality in the selection process.  The results also suggest a very qualified effect for letters of recommendation.  Letters may get an otherwise well-qualified applicant noticed, but there appear to be few “clerk makers” among the legal professoriate.”

One of the most interesting findings is in Table 2: Duties Assigned to Law Clerks.  The most frequently assigned task to clerks is, LEGAL RESEARCH, with 99.4 percent of the respondents listing this task.