Lawyers read statutes and regulations every day, many find the wording and format difficult to comprehend. Legislative drafting attorneys adhere to strict rules that determine applicability, authority, conditions, penalties, and procedure. Good legislative drafting is intended to minimize misinterpretation, so consistency and specificity are key. Each state and the federal government organizes its code differently, but there are some general rules that will guide you through any bill, statute, or regulation.
Understanding basic statutory organization will allow you create arguments more efficiently, understand which laws apply to your client, and help you sound like an expert. Here are five guidelines for reading legislation and statuary code:
- Definitions are Everything
Terms in legislation and statute have specific and technical definitions that often differ from how you would use the word in everyday conversation. Most titles, articles, chapters, or sections will have a definition section, and this should always be where you start when reading a bill or statute. When searching the code for applicable sections, broaden your search terms beyond the obvious, for example, if you are searching for statutes governing school bus drivers, you may have to actually search for “chauffer” instead. Also, keep in mind that a term in one title may be used differently in another title.
- Can You or Can’t You?
The operative words in any statute are the ones that tell you what you can or can’t do. Whether the law says you “may” or “shall” do something can make all the difference in a case. Although there is some debate about the use of “shall,” it is used by many states to confer a duty or obligation on a party, while “may” is a permissive term. Mistaking a duty for an option (or the other way around) is one of the most common mistakes individuals and attorneys make. Good bill drafting should also clearly denote the duties of each party separately, and directly tie an action to the specific party responsible for taking that action. Pay careful attention to “and” vs. “or,” especially when dealing with lists. Based on how a list is tabulated, the conjunction may modify the whole list or provide options based on certain requirements.
- Order of Operation
When you practice in a certain state, take the time to learn how the code is generally organized and how new language is indicated — most states make their bill drafting manuals available online. Many states strike out or bracket language to be removed, and new language can be indicated in bold, underline, or italics. Current law can also be wholly removed through a repeal or strike-and-insert provision. Most bills and statutes follow a similar format: definitions, applicability, authority and administrative provisions, substantive body (including imposition of rights or duties), procedure, enforcement, sunset or effective dates, and any miscellaneous provisions. Be sure to read statutes as part of the greater article or title, as provisions from earlier in the code may bind the section you are examining. Also, be on the look-out for exceptions, conditions, cross references, and limitations on authority that may appear later in the chapter.
- Hierarchy and Deference
Although it may sound intuitive, always remember that state code is part of a larger hierarchy. Is the section you’re relying on partially or totally superseded by federal law? If the statute grants rulemaking power to an agency, the language may be broad or prescriptive; the agency only has the power given to it by the legislature. The code’s administrative law section will often describe how the legislature and agency authority interact. Legislative provisions are also subject to the state constitution, which may impose unspoken limits on the provisions in the bill. It’s also important to keep in mind what isn’t law — for example some states also allow “proposed” or “concept” drafts that are non-statutory summaries of bills they intend to introduce (also note that drafter’s summaries, descriptions, findings of fact, legislative intent, and committee reports are not binding).
- Back to the Basics
At the end of the day, careful observation of tabulation and grammar are still essential. When reading a tabulated list, remember that substantive language, including “may” or “shall,” may come before and after the list itself. Punctuation details like Oxford commas, colons, hyphens, and semicolons all have substantive legal purposes. Also, always check for cross references within the bill, which can be referred to either by a verbal description or a direct numerical reference to a part of the code. Most bills will list the sections to be amended as a place to start your research. Many bills also contain technical and conforming changes, which are not substantive and generally deal with punctuation, clarifying changes, or cross references. Finally, although some states have similar drafting rules, statutes are generally not interchangeable and attempting to compare definitions or substantive provisions between states can cause confusion or misinterpretation.
Follow these five tips and you will become a code pro. Finally, if you’d like additional reading, consult The Elements of Style by Strunk & White, Legislative Drafter’s Desk Reference by Lawrence E. Filson and Sandra L. Strokoff, and Garner’s Dictionary of Legal Usage by Bryan A. Garner.