ANALYSIS:

CRITICAL READING: STATUTES STATUTORY ANALYSIS

8/30/11 Dean Beatrice Tice

Critical Reading: Statutes

To understand what the statute says

NOT

the only step in statutory analysis!

Basic structure of a statute

Typically

organized by topic in titles Then into articles or chapters Then into sections Each part has historical notes

May be one section, or multiple inter-related sections

Critical Reading: Statutes

Get context
Understand
What

the statutory scheme

does it govern? Civil or criminal? Requires behavior? Prohibits or allows behavior?

Verify
To

that the statute applies

whom does it apply? Which jurisdiction? When did the current version go into effect? Are you using the most current relevant version?

Critical Reading: Statutes

Skim for content

Elements? Factors? Cross-references to other sections?

Close reading for details

Red flag words?

And Or/either Unless/except/ifthen Shall/must Shall not/may not/must not Provided that Notwithstanding

Critical Reading: Statutes

Statute example: U.S.C. Title 17 If its complexmap it out! NOT an infringement of copyright for a library to reproduce ONE copy if:
NO

direct OR indirect commercial advantage AND Collections open to public OR researchers AND Reproduction includes notice of copyright EXCEPT

Statutory Analysis

Always look up judicial treatment of your statute Different methods of statutory analysis in different contexts Generally:
Ambiguity

= word or phrase in context susceptible to one or more meanings Statutory analysis = figuring out what the court in your jurisdiction will think the legislature intended an ambiguous term to mean

Statutory Analysis

Courts rely on differing methodologies know the one in your jurisdiction! Three types of evidence
Intrinsic Extrinsic Policy

Statutory Analysis

Intrinsic evidence
Plain

meaning of the text: Always start here! Text in context of statutory scheme Mandatory authority (cases) that construe the exact ambiguity at issue [Canons of construction]
E.g.,

a modifier applies only to the last item in a list Employees shall be paid wages, environmental hazard pay, and overtime as determined by the lead agency to be consistent with private sector practices.

Statutory Analysis

Extrinsic evidence
Outside

sources that shed light on legislative intent

Legislative

history Agency interpretations and regulations Persuasive authority, or authority dealing tangentially with the issue at hand
[Non-textual
E.g.,

canons of construction]

Statutes in derogation of the common law will be narrowly construed

Policy evidence

Statutory Analysis

Practice!: Ariz. Rev. Stat. Ann. 13-2319.