Main Body

Constitutions and Statutes

 

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. – John Marshall, Marbury v. Madison, 5 U.S. 137, 180 (1803)

 

All those courts before mentioned are in use, and exercised as Law at this day, concerning the Sheriffes Law dayes and Leets, and the offices of High Constables, pettie-Constables, and Tithingmen; howbeit, with some further additions by Statute laws… – Francis Bacon, The Elements of the Common Lawes of England

 

2.1 Learning Objectives for Chapter 2

In working through this chapter, students should strive to be able to:

Compare the different stages in a statute’s life-cycle.

Evaluate the properties of a code:

code organization

code annotations

Use finding aids to find specific statutes in print:

by citation

by topic using the index

by popular name

Recognize the various types of document comprising a statute’s legislative history and evaluate how useful each type would be for determining legislative intent.

2.2 Constitutions & Statutes

As discussed in Chapter 1, constitutions act as the highest source of law in the United States legal system. No other law can be valid if it conflicts with a constitutional provision. As such, finding applicable constitutional sections takes on dire importance for legal researchers. Fortunately, constitutions tend to be short. Furthermore, because of their importance, most experienced lawyers will know whether or not a constitutional issue will likely apply without needing to do an overly large amount of research. Because of these factors, and because jurisdictions tend to publish their constitutions in the same place as their statutes, we will cover constitutions and statutes together.

Constitutionally valid statutes act as the second highest source of law in the United States legal system. An applicable statute will control a given legal problem over case-made legal rules. This has been the case in the Anglo legal tradition since the late Middle Ages, as the quote from Francis Bacon at the beginning of this chapter suggests. However, the full primacy of statutes did not occur until the Tudor period in the Sixteenth Century.42 In fact, at that time England underwent the Reformation and split from the Roman Catholic Church by statute.43 As the development of statutory authority occurred before the founding of the North American colonies, statutes have always enjoyed primacy (subject to written constitutions, an American innovation) in the U.S. legal system.

This is not to say that statutes have always taken the same form. American political and legal institutions have evolved over time. However, we will not cover the complete history of statutory forms since what matters to most researchers is finding and understanding relevant statutes in their current forms. To understand the different forms statutes currently take, however, we must first turn our attention to the life-cycle of a statute.

 

2.3 Life Cycle of a Statute

Statutes, of course, come from legislatures. When a legislator wants to create a new statute, he introduces a bill into whichever house he belongs. Upon introduction, each bill receives a number beginning with a designation of its house of origin. For example, at the federal level, bills introduced into the House of Representatives begin with the letters H.R., while bills introduced in the Senate begin with the letter S. State legislatures follow similar schemes. Bill numbering starts over each legislative session, so researchers need to be aware of which session of a legislature considered a bill. However, bills are not yet statutes, and many never become so. Thus, while a legal researcher may occasionally look up a bill’s legislative history44 in an attempt to determine legislative intent, statutory research by and large uses other versions of statutes.

Upon passing both houses of a legislature,45 a bill becomes a statute. Different jurisdictions call their statutes by different names, but Acts or Laws are the most commonly used terms. At the federal level, passed bills become known as Public Laws.46 Public Laws receive a unique number, beginning with the number of the Congressional session in which the law was passed. The Government Publishing Office then immediately publishes each Public Law as a pamphlet or slip law. Slip laws, due to their quick publication, effectively give the public notice of new laws. However, because each slip law contains only one statute in isolation, they are not terribly useful for legal research purposes. In fact, many states do not bother to issue slip laws.

At the conclusion of each legislative session, the printer for the legislature gathers all statutes passed during the session and publishes them in chronological order as part of a multi-volume set, known as a collection of session laws. At the federal level, the Statutes at Large act as the session laws. Different states call their session laws different things. For instance Kentucky’s session laws are the Kentucky Acts, while Ohio’s session laws are the Ohio Laws.47 Because session laws feature chronological organization, a legal researcher pursuing a specific topic will not find them terribly useful. However, if a researcher has already found a specific statute and wishes to see earlier versions of that statute, session laws become a valuable resource, as we will see in section 2.4.3.4.

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Figure 2.3: Life Cycle of a Generic Statute

 

Finally, after initial publication, statutes undergo codification, which is:

The process of compiling, arranging, and systematizing the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code.48

The process of codification thus results in a topically-organized code of statutes in force. The federal government appropriately titles its code The United States Code (U.S.C.). Naturally, as befits the U.S. federal system, state codes vary in name. Note that when a new statute makes changes to the existing statutory code, language is added or removed to the code as necessary to incorporate those changes. Thus, codes constantly change, while session laws serve as repositories of historical laws. Because most legal research involves investigating legal issues that apply to facts, rather than beginning with a specific statute, codes tend to be the statutory source researchers use most often. A jurisdiction’s code also typically includes its constitution at the front, so constitutional research would also be conducted with a code.

2.4 Using Codes

Lawyers conduct the bulk of their statutory research using the codified versions of statutes. Thus, legal researchers need the ability to use codes efficiently. Because codes and their tools developed during the pre-computer era, we will introduce their use in print format. Of course, electronic legal publishers include codes on their research platforms, but rather than reinvent the wheel, the electronic publishers incorporated many of the tools originally developed for codes in hard-copy. Also, many expert legal researchers prefer codes in print due to the efficient design of these resources. Thus, we will introduce the use of codes in print here and save methods of electronic research for Chapter 5.

2.4.1 Codes & Topical Organization

Codes work well for legal research because of their topical organization. A topical organization allows for the easy creation of a topical index, which researchers can use to find code provisions on a specific topic. Once a researcher finds a code provision on point, nearby provisions may also be likely to be of use because of the way codes group like topics together. In order to see how this works, let us take a closer look at the organization of a typical code.50

The most basic unit of a code is the section, which provides for a specific legal rule over a set of circumstances. While sections may feature subsections, the subsections themselves only provide for part of the legal rule created by the section and so cannot really act on their own. Think of code sections as analogous to atoms. While protons, neutrons, and electrons make up atoms, none of those particles will be found in nature on their own, but only clumped together in atoms. Subsections and code sections work in the same way.

Codes then group related sections together into chapters. Sometimes a code will also use sub-chapters if an area of law contains a sufficient level of depth for multiple classifications. For instance, in the United States Code, Chapter 10 of Title 18 contains all of the code sections related to federal criminalization of biological weapons. The individual sections in the chapter address discreet topics such as the prohibition of biological weapons or seizure of biological weapons by the government.51 Note also the inclusion of a definitions section in the chapter.52 The definitions contained therein apply to all the other sections in the chapter. A researcher would need to find the definitions in order to apply correctly any of the other sections in the chapter. Luckily, a code’s inherent organization makes such a discovery likely. Furthermore, print codes feature a table of contents at the beginning of each chapter to enable researchers to grasp quickly the organization of that particular chapter.

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Figure 2.4.1a: The table of contents for Chapter 10 of Title 18 of the United States Code Annotated.  

Codes then group related chapters together into titles. Generally, a title acts as the largest unit of organization in a code, other than the code itself.53 For example, the U.S.C. houses the chapter on biological weapons in Title 18 with other chapters dealing with different crimes. A table of contents alerts researchers as to what chapters are included in the title. Sometimes titles include definitions or general principles that apply throughout the title. These will usually be found towards the beginning of the title. Similarly, a code itself features a table of contents identifying its constituent titles, and may also feature general provisions applicable to the entire code. A lawyer would need to find these in order to interpret applicable laws correctly. Fortunately, codes provide enough organization to allow researchers to find the information they need.

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Figure 2.4.1b: The table of contents for Title 18 of the United States Code Annotated. 

2.4.2 Annotations

Sometimes a jurisdiction publishes its own code as an official version, such as the U.S.C. Often, however, a jurisdiction will designate private entities as the publisher(s) of its code. For instance, in Kentucky two separate private publishers produce the Kentucky Revised Statutes: Michie’s (Lexis) and Baldwin’s (West). Even for jurisdictions that publish their own code, though, private publishers will also publish an unofficial version. For example, West publishes the United States Code Annotated (U.S.C.A.), and LexisNexis publishes the United States Code Service (U.S.C.S.). Both of these titles are reprints of the official U.S.C., yet their respective publishers are able to sell copies and turn profits because they add value to the code by providing editorial content called annotations.

Annotations lead researchers who have discovered a relevant statute in an annotated code to other authorities that help interpret that statute. Through annotations, researchers may discover cases, secondary sources on point, or other tools useful to the expansion of research from an applicable statute. Figure 2.4.2 shows examples of annotations included for a section from West’s Hawai’i Revised Statutes Annotated. Annotated codes also feature annotations for constitutional sections.54

The publishers of annotated codes employ lawyers as editors to read new legal authorities and to identify which authorities interpret which specific statutes. Obviously, this is a time-intensive and expensive undertaking, but legal researchers willingly pay the costs because good annotations are an efficient way to begin their research.55

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Figure 2.4.2: Haw. Rev. Stat. Ann. § 322-1(West 2008)

 

2.4.3 Using Codes in Print

Many expert legal researchers find print copies of codes more efficient to use than electronic copies. Often a researcher will need several related sections of a code and so desires the ability to flip back and forth between sections. Also, sometimes seeing a code in print makes it easier to grasp the code’s inherent organization. Naturally, when researching in print good legal researchers prefer annotated codes to unannotated codes because of the value added by the annotations.

2.4.3.1 Finding Code Sections by Citation

Before a legal researcher can use annotations, however, he must find the code section(s) relevant to his problem. The easiest way to pull a relevant code section is by citation. A lawyer might know the citation of a code section he needs through other means than research. For instance, a criminal defense attorney may know the citation to the statute under which his client has been charged. If a legal researcher knows the citation of a particular code section, then retrieving that section is simple.

Citation schemes vary from jurisdiction to jurisdiction, but generally speaking, statutory citation begins with a number that references the title in which the section is found, then provides an abbreviation that lets researchers know which code the citation references, and finishes with the specific section number of the section. The federal code follows this format, as do the codes of some states. For example, to pull 7 U.S.C. §1471(j),56 a researcher would find the volume of the U.S.C. that contains Title 7 and turn to § 1471(j). As you can see in figure 2.4.2, codes feature a header on each page that alert researchers to the first (for lefthand pages) or last (for righthand pages) section that appears on that page. Note that code volumes sometimes contain more than one title. This bears emphasizing: title numbers and volume numbers of print codes do not correspond. A title is a unit of intellectual organization, while a volume is a unit of physical organization. Researchers should take care to select the correct volume that houses the title for which they are looking.

Not all states follow the federal citation scheme. For instance, in Hawai’i code sections are cited in the following format: Haw. Rev. Stat. § 322-1. The citation still features an abbreviation referencing a specific code (in this case, the Hawai’i Revised Statutes), but there is no title number. Instead, the citation provides only the specific section number: 322-1. For each section in the Hawai’i code, the digits before the hyphen refer to a chapter, and the ones after the hyphen refer to the specific section. Thus, a researcher would find § 322-1 in chapter 322 of the Hawai’i Revised Statutes. Hawai’i serves as only one example, though many states employ a similar scheme. For a complete state-by-state breakdown of citation schema, researchers may consult table 1.3 of The Bluebook.57

2.4.3.2 Finding Code Sections by Topic

While retrieving a code section by citation is quick and easy, often legal researchers will not know the citation of code sections they will need. Instead, from talking with a client, they will merely have identified some relevant legal issues and will need to find statutes that correspond with those issues. Luckily, print codes provide a couple of methods of accessing information by topic. Furthermore, because the methods resemble similar methods used by other non-fiction publications, most law students already possess at least some familiarity with them.

First, codes provide a table of contents. Actually, they usually provide a series of tables of contents. At the very beginning of the code, a researcher can find an exhaustive table of contents that lists each title of the code and gives information about what areas of law each respective title covers.58 Then, at the beginning of each title, a code provides a table of contents for that title, detailing the coverage of chapters within the title. Similarly, individual chapters provide tables of contents with information on their constituent sections. See figures 2.4.1a and 2.4.1b above as examples. Researchers can browse through the tables of contents to narrow in on a specific section of relevance.

Browsing tables of contents, however, can be time-intensive and does require some knowledge of how specific issues relate to general topics. For instance, a researcher looking for criminal trespass statutes would need to know that those would likely be included near burglary and that burglary as a crime would be found in a penal code. Often, then, researchers turn to the other tool provided by codes for topical research: the index.

Generally speaking, researchers will find a comprehensive index in one or more volumes located at the end of a code. A code’s index works in typical index fashion: researchers look up specific terms they think apply to their situation, and the index refers them to specific code sections or to other terms in the index (that will then refer the researcher to specific code sections). Note that legal indexes tend to be organized into multiple levels of classification, meaning that sometimes researchers can only find specific terms by looking under general topics. For instance, a researcher looking for a statute governing who will bear the cost of abating a nuisance in Hawai’i would first need to look up nuisance as a topic and then scan through the subtopics to find abatement and ultimately costs related to abatement. Often, the multiple-level organization of code indexes even leads researchers to investigate relevant terms that they would not have thought of on their own! Between the index and the table of contents, legal researchers should be able to find statutes on any given topic, even without knowing a citation beforehand.

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Figure 2.4.3.2: Excerpt from the General Index of West’s Hawai’i Revised Statutes Annotated.

 

2.4.3.3 Popular Names Table & Other Tables

In addition to providing means for researchers to find codes sections by topic, codes often provide finding aids that allow a legal researcher to find a code section if he possesses some other piece of information about a statute. For instance, most laws receive “popular names,” by which they can be referenced without needing to rattle off a difficult-to-remember citation. For example the Religious Freedom Restoration Act (otherwise known as Public Law No. 103-141) tends to make the news a lot. A lawyer might remember that the Religious Freedom Restoration Act applies to his case but then need to pull the relevant code sections to read the actual statute. By using the Popular Names Table of the U.S.C.A., he would be able to look up “Religious Freedom Restoration Act” and retrieve citations to the code sections which house the act, as seen in Figure 2.4.3.3.

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Figure 2.4.3.3: The U.S.C.A. Popular Names Table Entry for the Religious Freedom Restoration Act. 

Note that the Popular Names Table also provides researchers with citations to the enacting and amending session laws. Annotated codes also often provide separate tables that convert code section citations to session law citations and vice versa. Any other table provided by a code would work under similar principles as a Popular Names Table.

2.4.3.4 Using Code Sections

Regardless of how a researcher finds a relevant code section, he then needs to apply it to his client’s problem. The first thing a good researcher does upon locating a potentially relevant code section is to read carefully the language of the law itself. (Note that annotated codes provide much more information than just the law itself. Please refer back to Figure 2.4.2 for an illustration of the different pieces of information discussed here.) Reading the code section should alert the researcher as to whether or not the code section he found actually applies to his legal problem.

After an initial read, a lawyer should then check to see if the language he just read was in force at the time of the actions that gave rise to his client’s problem. He does this by perusing the dates enacted/amended that codes include immediately after the language of each section. Obviously, the earliest date listed refers to the enactment of the law, while later dates refer to times later statutes amended the code section. The text of the code section reflects the changes made by the most recent listed amending statute. Therefore, if a client’s problem occurred prior to the most recent amendment, a lawyer would need to look at the version of the law in force at that time. Luckily, the dates amended following a code section also provide citations to the session laws that did the amending. The lawyer could then retrieve the appropriate session law by citation, as if he were retrieving a code section by citation, to obtain the law as written at the time of the facts giving rise to his client’s problem.

However, looking backwards in time at changes to a code section when researching in print is not enough. A legal researcher must also look forwards in time, or “update” the law. This occurs because books are printed at a definite point in time. Because legislatures frequently pass statutes that amend code sections, invariably some printed code sections will have changed since the date when the volume they are found in was last published. Fortunately, legal publishers are aware of this possibility and have developed a system to alert researchers to changes in the law. They simply issue supplementary volumes containing the new language.

Most annotated codes publish their supplementary updates as pocket parts, which are soft-bound pamphlets which dedicated library workers slide into a pocket at the back of the bound code volume. If enough laws change to the point that a pocket part becomes too thick to fit into a code volume comfortably, a publisher may issue a free-standing supplement (which would be located immediately to the right of its code volume on the shelf), or may simply republish the code volume in question.

Pocket parts present code sections in the same order as their parent volume, but they do not reprint every section of the volume. If a code section does not appear in the pocket-part, then a researcher knows that it has not been updated through the publication date of that pocket part and can rely on the version found in the code volume proper. However, if a code section does appear in the pocket-part, then a researcher knows one of two things: either the text of the law has changed, or the publisher has seen fit to add more annotations to the particular section. If the law has changed, the new text of the code section will be provided in the pocket-part, and the researcher should use that language. If the text of the section itself does not appear, then the section appears in the pocket part because only the annotations have changed. Note that if a new section is added to a code after publication of its volume, it will appear only in the pocket part. See figure 2.4.3.4 for an illustration of the two different types of pocket part entries.

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Figure 2.4.3.4: Sample Pocket-Part Entries. Reprinted from LexisNexis with permission. Copyright 2015 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved. 

Once a researcher knows that the text of a statute was current at the time of his client’s incident, a good researcher then takes a couple of more steps before moving on with his research. First, he will flip to the beginning of the chapter or sub-chapter that houses the section to see if any definitions, general provisions, or related sections apply to his issue. Second, he will make note of any annotations included for her section of interest. The annotations may help him interpret or apply the statute he has found. They will also usually give him an entry point into case research, which we will cover in Chapter 3.

2.5 Local Legislation

In addition to creating their own laws, state legislatures also often delegate law-making authority to cities or other local government units within the state. Cities and other local units which have been delegated law-making power by the state are often referred to as municipalities or localities. Individual municipalities create their own processes of legislation in accordance with the state statute(s) creating the municipality. Lawyers refer to local legislation as ordinances rather than statutes.

The major difference between a state statute and a municipal ordinance comes in applicability. A statute carries force of law throughout the state. Conversely, a municipal ordinance carries force of law only inside the boundaries of its municipality.

Another major difference between statutes and ordinances becomes obvious when one compares the publications that house the respective sources of law. While municipal ordinances do tend to be organized topically into codes, the actual publication of physical copies remains less than regular. A couple of commercial publishers publish larger municipalities’ codes,59 but often the codes of smaller municipalities exist only as self-created and promulgated documents. In fact, ordinance codes can be somewhat hard to find. Researchers sometimes may need to contact the issuing municipal government directly to find an up-to-date copy.

Should a legal researcher get his hands on a municipal code of ordinances, he would interact with it in the same ways he would interact with other codes, as municipal codes typically feature indexes, tables of contents, and good topical organization. Ordinance research is often easier than that involving other codes as a matter of scale, since municipal codes often comprise only a single volume.

Though municipal ordinances can be difficult to find and carry only limited applicability, they do carry the force of law in their municipalities through legislative delegation of authority. As such, lawyers need to be able to find ordinances affecting their clients, as they would statutes. Of course, both statutes and ordinances are subject to interpretation, as are constitutions.

2.6 Interpreting Constitutions and Statutes

As mentioned above, both constitutions and statutes tend to be broadly written in order to apply to a wide range of facts. They often lack specifics, and so lawyers must interpret them and how they will apply to a given set of facts. Often, lawyers look to judicial opinions that have already interpreted a statute for guidance on how to interpret that statute. We will cover finding judicial opinions in Chapter 3.

However, occasionally a lawyer may encounter a statute that has not yet been interpreted by a court, and so may need to look for other sources to aid in interpretation. Similarly, a lawyer may face a situation in which all the judicial opinions side against his client and may be looking for an alternative way to interpret a statute or constitutional provision. In these situations, lawyers sometimes try to argue for an interpretation for an authority based on the intent of the body that created the authority in question. In order to support an intent-based argument, a lawyer will often look to the history of the authority’s creation for evidence of intent.

2.6.1 Constitutional History & Framers’ Intent

Constitutions typically come from constitutional conventions, which tend to publish records of their work beyond the constitution itself. Furthermore, to become binding as the ultimate source of law for a jurisdiction, that jurisdiction must ratify the constitution. Usually, some form of a jurisdiction’s legislature performs the ratification. Under some circumstances, researchers can look to the work product of the constitutional convention or of a ratifying body to help interpret a constitutional provision by attempting to determine the intent of the drafters or framers of the constitution.

For a variety of reasons, most lawyers will never find themselves needing to look to framers’ intent. Most of the commonly-litigated constitutional provisions feature a significant number of cases interpreting them. Usually, lawyers prefer to rely on a reported case’s interpretation than to infer intent from the work product of a constitutional convention. Still, students may sometimes encounter references to framers’ intent in judicial opinions or scholarly works, so we will briefly introduce the major sources here.

The federal constitution came about as the result of a constitutional convention held in Philadelphia during the summer of 1787.60 In addition to producing the Constitution itself, the convention produced various bits of work product. The bits of work product were later collected by historians and published as compilations. The most comprehensive and widespread of the compilations is Max Farrand’s The Records of the Federal Convention of 1789.61 Following the convention, the Constitution faced a tough ratification campaign, which saw three of the convention delegates62 publish a series of essays arguing for ratification. Collectively those essays form the Federalist Papers,63 and judges deem them good expressions of framer intent. Furthermore, a historian named Jonathan Elliot collected documentation from the ratification debates that took place in the various state ratification conventions and published them in a work entitled The Debates in the Several State Conventions on the Adoption of the Federal Constitution (or Elliott’s Debates for short).64 Together, these three works make researching federal framers’ intent relatively straight-forward, and researchers may find all three titles on the Library of Congress’s website (as well as in virtually every library system in the United States).

State constitutions often feature similar documentations of history in terms of convention proceedings, but the availability of the proceedings may vary by state. Furthermore, many states have adopted different constitutions at different times, and so there may be more than one convention’s proceedings available. To research state constitutional history, a researcher should contact a reference librarian in his state of interest.

A complicating factor about constitutions is that, because they are designed to be organic documents, they change over time through the amending process. If the constitutional issue being researched relates to one of the amendments, neither convention nor ratification documents will be of use to a researcher. Fortunately, though, the vast majority of constitutional amendments pass through a more rigorous version of the legislative process, and so their histories can be researched in similar methods to the legislative history of statutes, which we will cover in the next section.

2.6.2 Legislative History & Legislative Intent

A statute’s legislative history can serve as a source that will aid in interpreting the statute. Legislative history refers to the “background and events leading to the enactment of a statute.”65 Essentially, everything that happens to a proposed statute procedurally goes into its legislative history. Lawyers can sometimes use the legislative history to investigate the legislature’s intent in drafting the statute. A lawyer would then argue that the legislative intent indicates a particular interpretation of the statute.

As the exploration of legislative intent is usually the end goal of researching legislative history, researchers will find some pieces of legislative history more helpful than others. After all, the legislative process typically involves several distinct steps in two separate houses, so finding something that indicates the intent of the legislature as a whole can be challenging. We will briefly introduce the types of documents researchers of legislative history are likely to encounter in order from those generally the most helpful for inferring intent to those less often used.

2.6.2.1 Types of Legislative History Documents

In order to appraise the relative weight of a piece of legislative history, a researcher needs to understand the basic legislative process. First, a legislator introduces a draft statute as a bill. Upon introduction of the bill, the leadership of the legislative house in which the bill was introduced assigns it to a relevant committee of that house for evaluation. The committee will look at the bill in some detail and may hold hearings to investigate the bill’s purpose or commission studies about specific effects the bill may have. If the committee passes the bill, it returns to the full legislative house for debate and consideration. After a bill passes one house, it will be introduced in the other legislative house to follow the same process.66 Because bills are subject to amendment at pretty much any time of the process, it is unlikely that a bill will pass each house with the exact same language intact. To resolve differing language, legislatures generally form special committees with members from both houses, called Conference Committees. Once a Conference Committee agrees on a reconciled version, each house must pass the final, reconciled version of the bills they have already passed. Only then will the bill be sent to the executive to be signed into law as a statute.67

Given that legislatures contain multiple legislators all with their own beliefs and motives that can affect the steps of the process, speaking of legislative intent as a singular force may strike one as somewhat specious. In essence, every piece of legislation passed represents a compromise. Therefore, the intent expressed during the compromise stage of the process will be the strongest expression of intent a researcher will be able to find. For this reason, researchers of legislative history often look to Conference Committee materials first. Indeed, Conference Committee Reports detailing the actions taken by the Conference Committee on a particular statute usually provide the strongest expression of legislative intent.68

Sadly, Conference Committees do not create reports for every statute they consider, and not every statute requires a Conference Committee. Therefore, a researcher may or may not find a Conference Committee report for a given statute. If no Conference Committee Report is available, she should then try a Committee Report from one of the standing committees. Because the committee to which a bill is assigned looks at a bill more closely than the legislative house at large, the committee itself often expresses intent in recommending the bill to the rest of the legislative house. Furthermore, legislatures such as Congress tend to have their own procedural rules requiring that standing committees be made up of members of both parties. As such, Committee Reports generally reflect the views of both the majority and minority parties on the committee and so may provide insight into the compromise that best embodies intent. However, because the committee will have considered an earlier, pre-conference version of a bill, researchers should ensure that any discussion of intent in a Committee Report refers to a portion of the bill that remained in the bill as it passed into law.

Researchers may also encounter statutes for which there are no Committee Reports available from any legislative committee. Other pieces of legislative history may still provide glimpses of legislative intent. At the Federal level, Congress publishes a journal of its proceedings called the Congressional Record, which often preserves transcripts of debates on particular bills, as well as voting records on the same bills. By putting these two pieces of information together, a researcher might be able to determine which argument carried the day and then ascribe intent to that argument. Alternatively, a researcher might find multiple versions of a bill along with suggested amendments and attempt to infer intent from the changes made to the bill. Finally, a researcher may examine published Hearings or Committee Prints (studies commissioned by the committee considering a bill) in order to see what information Congress considered before passing a bill or to see what the stated purpose of a bill was. While it is somewhat tenuous to infer intent from Hearings or Prints, they may be able to show whether or not Congress considered a specific issue and may also describe the legislation’s general goal in the abstract. Note that all of the legislative documents described in this paragraph requires inference and assumption in order to determine intent as it applies to the specific language of a statute. As such, these materials are much weaker than Committee Reports.

Type of Legislative History Document Brief Description Utility for Determining Intent
Conference Committee Report Official report of the committee which reconciles differences between the bills passed by each house High – often contains express intent as related to the version of the bill that actually becomes a statute
Committee Report Official report of whatever committee reviewed initial bill Medium – contains views of both parties and may contain express intent, though not usually as related to the final version of the bill
Congressional Record/Legislative Journal Official journal of the legislature which may contain records of debates or statements regarding a bill Low – may contain express statements of intent, but statements only attributable to individual(s) making statements; inference required to attribute to legislature at large
Hearings Transcripts of hearings held by legislative committees studying particular bills Very low – will show an issue was brought to the legislature’s attention but intent about specific statutory language difficult to infer
Committee Prints Published reports on an issue commissioned by legislative committees studying particular bills Very low – will show an issue was brought to the legislature’s attention but intent about specific statutory language difficult to infer
Signing Statement Statement issued by the executive when signing bill into law Very low – not actually from legislature

Figure 2.6.2.1 – Types of Legislative History Documents

 

In addition to the documents produced by the legislator, researchers of legislative history may sometimes also encounter signing statements. In order for a bill to become law, it not only must be passed by the legislature but must also generally receive the signature of the executive. When the executive signs a bill, she sometimes issues a signing statement, which is an expression of the executive’s understanding of legislative intent behind the new law. While this may seem like a strong, express statement of intent, note that it does not, in fact, come from the legislature. As such, it is not as good for a legislative intent argument as something actually produced by the legislature.

Researchers of federal legislative history will encounter the types of materials described above somewhat regularly. However, states vary in the amount of legislative work product they publish. In fact, many states publish only a legislative journal and no reports of any sort. Therefore, before engaging in research of state legislative history, students should contact reference librarians from their state to determine what actually is available.

Before a researcher can use legislative history to determine intent, she must first find what legislative history exists for the statute in question, so let us now turn to methods for finding legislative history documents.

2.6.2.2 Finding Legislative History Documents

We have good news and bad news about researching legislative history. On the bad news side, a researcher never knows whether a legislature will have produced any legislative history documents for a given statute. Thus, researching a statute’s legislative history may sometimes prove fruitless. On the good news side, because a researcher will typically be looking for legislative history to help interpret a statute, she will have a logical starting point to her research. The statute itself will naturally limit the scope of her research.

In order to conduct legislative history research on a statute, a researcher will need the session law or slip law citation for the statute in question. As discussed above, researchers typically find statutes via a topically organized code. The reason that codes do not work so well for legislative history is that most statutes produced by a legislature get divided into pieces in order to fit topically into the code. However, when the legislature considered and ultimately passed the statute, all the topical bits would have been considered together. Therefore, researchers will need the version of the statute as it passed in order to pull all its associated legislative history documents. Luckily, the code itself provides citations to the session laws that enacted or amended a code section at the end of each code section.

Once a researcher has obtained the citation information for the slip law or session law version of a statute, she can proceed in a couple of ways. First, she may find a compiled legislative history for her statute. Compiled legislative histories are similar to the compilations of historical constitutional documentation referenced in Section 2.6.1. Compiled legislative histories may exist as stand-alone works on a single topic,69 but researchers may also find works that collect and publish multiple compiled legislative histories. Such collections—at least for Federal legislation–exist both in print and electronically.70

The dominant print source for compiled legislative histories is West’s United States Code Congressional and Administrative News (USCCAN). Before computers, USCCAN was the easiest way to locate federal legislative history.71 Researchers would look up federal statutes by Public Law number, and the USCCAN entry for the Public Law in question would contain a selection of the more useful legislative history documents as chosen by a West editor. Note that USCCAN only provides select (as opposed to comprehensive) legislative histories and only on select statutes. Despite these limitations, USCCAN is useful and ubiquitous enough that it remains the Bluebook preferred source for many citations to legislative history.72

In addition to finding them in print, researchers can also find compiled legislative histories electronically. For instance, West includes an electronic version of USCCAN on its WestlawNext platform. Similarly, HeinOnline provides a number of compiled legislative histories in electronic format. More information on using electronic research platforms will be provided in Chapter 5.

Unfortunately, compiled histories are not available for every statute. In the event that a researcher needs to investigate the legislative history of a statute without an available compiled history, she will need to compile the materials herself. The amount, type, and format of legislative documents available vary greatly by jurisdiction. At the Federal level, the Government Publishing Office produces a large selection of legislative documents that researchers can find in print or on microfiche73 at a Federal Depository Library.74 Legislative history documents for more recent statutes may also be found online at Congress.gov.75 Alternatively, the private publisher ProQuest provides digitized Congressional documents from as early as 1789 through electronic subscription services.76 We will cover conducting electronic research in Chapter 5.

State governments tend to publish significantly fewer legislative documents than the federal government, but the specific publication schemes vary by jurisdiction. To conduct legislative history research on a state statute, we encourage students to contact a law librarian in the relevant state.

The legislative history documents described in this section can aid lawyers in interpreting statutes, the source of law created by the legislative branch. In the next chapter, we will turn our attention to another source of law: judicial opinions, which themselves often interpret statutes.

 

 

 

 

2.7 Concluding Exercises for Chapter 2

Now that we have covered the basics of using codes for research, let’s try to do some actual legal research! The following exercises contemplate the use of print codes. Because most states tend to enact laws on similar topics, if you do not have access to a print code of any of the jurisdictions called for in these exercises, you may simply substitute the code of a jurisdiction for which you do have print access.

 

2.7.1 Introductory Exercise on Code Research

You are an associate at a mid-size law firm in Cincinnati. Your managing partner comes to you to say that a client, an extremely wealthy woman who inherited an alcohol-distribution company, stopped in to request that the firm initiate divorce proceedings on her behalf. Apparently, her significantly-older husband has become increasingly cantankerous and erratic following some failed political ambitions. In your client’s own words, “he’s just become too much of a maverick.” Upon being asked in which state the matrimonial residence was located, the client confessed that the couple often spend time apart but rotate monthly to dwellings in the following locales:

 

Kahului, Hawaii

Sedona, Arizona

Key West, Florida

Arlington, Virginia

 

You have been tasked with finding statutory grounds for divorce in each of the jurisdictions listed. Please find the relevant code sections.


2.7.2 Intermediate Exercise on Code Research

 

Dear Associates:

We have recently been engaged by Bernard Brown, proprietor of Brown Books, to defend him in a misdemeanor prosecution in the state of Georgia. Brown Books is located in suburban Atlanta and carries a variety of new and used books. Recently, Mr. Brown sold a number of copies of D.H. Lawrence’s Lady Chatterly’s Lover to students at the local high school, who ranged in age from 14 to 16 years of age. Some of their parents got upset and the State of Georgia charged Mr. Brown with selling harmful materials to minors. This despite the fact that according to Mr. Brown (who emigrated from Ireland), “the bloody school assigned the bloody book! It’s art! It’s literature! The school library has a copy for the love of God!”

 

Above all, Mr. Brown would like us to get an acquittal.

 

I need you to:

Find the statute provision that prohibits the sale of harmful or obscene materials to minors. Does the Georgia code define “harmful materials”?

See if there is anything in the code that provides special protection for libraries.

Do you think we will be able to defend Mr. Brown successfully?

 

Thanks,

 

Mr. Partner


2.7.3 Advanced Exercise on Code Research

 

Hello Team:

 

We have been retained to represent Mr. Tyler Sangman in his upcoming federal criminal trial in the Northern District of Ohio. Mr. Sangman, a professional lobbyist and environmental activist, stands charged with the federal crime of committing an “attack to plunder a vessel.” The vessel in question, the S.S. Umlaut, was carrying replacement parts across Lake Erie for a chemical plant operated in western New York by industrial giant BADCO, Inc. Mr. Sangman allegedly used an inflatable motorboat to intercept the Umlaut off the coast of Ohio in order to disable its propeller system with plastic explosives. Unfortunately, the explosives were more powerful than intended, and the Umlaut sank to the bottom of Lake Erie. Using the United States Code Annotated, I need you to find the following information:

 

Look up the federal code section criminalizing attacking vessels to plunder them under the piracy laws of the U.S. Would Sangman’s alleged actions qualify as a crime under the text of this code section?

Look at the annotations. Do any suggest a case that might answer whether it matters that Sangman didn’t intend to profit from his actions?

Do any annotations indicate whether we would be able to challenge federal jurisdiction over the crime, since the action occurred in waters adjoining Ohio?

I know you’ll need to read the cases from the annotations for a definitive answer, but just going from the statute and its annotations, do you think we’ll have good news or bad news for Mr. Sangman?

 

Thanks,

Mr. Partner


2.8 Recommended CALI Lessons for Further Practice

CALI hosts an impressive number of interactive lessons on its website. The following lessons on constitutions, statutes, and codes touch upon material covered in this chapter. They would be a great place to start for students looking for further practice on the concepts introduced in this chapter!

 

2.8.1 “How to Research American Constitutional Law” by Brian Huddleston

Summary: an overview of researching federal and state constitutional law; contains references to materials that we cover in Chapters 3, 5, and 6, as well as what we covered here in Chapter 2

Lesson ID: LR113

URL: http://www.cali.org/lesson/9024

 

2.8.2 “Introduction to State and Federal Statutes” by Mary Rumsey and Suzanne Thorpe

Summary: a review of the different forms of publication statutes take

Lesson ID: LWR15

URL: http://www.cali.org/lesson/576

 

2.8.3 “Forms of Federal Statutory Publication” by Elizabeth G. Adelman and Kristina L. Niedringhaus

Summary: a review of the four publication forms of federal statutes

Lesson ID: LWR30

URL: http://www.cali.org/lesson/589

 

2.8.4 “Codification” by Bill Taylor and Tina S. Ching

Summary: an in-depth look at the code form of publication of statutes

Lesson ID: LWR 16

URL: http://www.cali.org/lesson/577

2.8.5 “Finding Statutes” by Kit Kreilick

Summary: a review of the methods by which researchers find statutes; includes print methods covered in this chapter as well as electronic methods covered in Chapter 5

Lesson ID: LR23

URL: http://www.cali.org/lesson/857

 

2.8.6 “Updating Federal and State Statutes” by Rebecca S. Trammell and Ashley Krenelka Chase

Summary: an overview of the processes by which researchers ensure that discovered statutes are up to date and still valid; also discusses electronic methods of updating statutes discussed in Chapter 5

Lesson ID: LWR 24

URL: http://www.cali.org/lesson/584

 

2.8.7 “Researching Federal Legislative History” by Nancy P. Johnson

Summary: an introduction to the federal legislative process and the various congressional documents in a legislative history. Students will be introduced to free legislative databases on the Internet. Through various cases, students will see how the courts use congressional documents to interpret laws.

Lesson ID: LWR14

URL: http://www.cali.org/lesson/575

 

 

 

 

 

 

 

42 For an account of how Henry VIII and his secretary Thomas Cromwell modernized English political and legal institutions, see generally G. R. Elton, The Tudor Revolution in Government; Administrative Changes in the Reign of Henry VIII (1953).
43 Ecclesiastical Appeals Act, 1532, 24 Henry 8, c. 12 (Eng.).
44 Legislative history refers to everything that happened to a statute in the legislature before it became a statute. See Black’s Law Dictionary 983 (9th ed. 2009).
45 Except, of course, in unicameral Nebraska.
46 For a complete list of what each state calls its statutes, see The Bluebook: A Uniform System of Citation 228-274 tbl.T.1.3 (Columbia Law review Ass’n et al. eds., 19th ed. 1st prtg. 2010).
47 For a complete list of what each state calls its session laws, see The Bluebook: A Uniform System of Citation 228-274 tbl.T.1.3 (Columbia Law review Ass’n et al. eds., 19th ed. 1st prtg. 2010).
48 Black’s Law Dictionary 294 (9th ed. 2009).
50 As with most authorities in a federal system, exact nomenclature may vary jurisdiction by jurisdiction.
51 18 U.S.C. §§ 175 – 178 (2012).
52 18 U.S.C. §178 (2012).
53 Sometimes codes also group related chapters into separate parts within a title. Note also that some jurisdictions, notably Texas and California, publish multiple topical codes instead of one unified code. To determine the publication format for a specific jurisdiction, see The Bluebook: A Uniform System of Citation 228-274 tbl.T.1.3 (Columbia Law review Ass’n et al. eds., 19th ed. 1st prtg. 2010).
54 Note that publishers usually provide an extremely large number of annotations for constitutional provisions. This makes sense as constitutional provisions tend to be broadly-written and open to much interpretation through caselaw. The result for the researcher, though, is that annotations for a particular constitutional provision may be extremely bulky and not as easy to use as those for statutes.
55 Also, because the different publishers employ different editors, it may sometimes be beneficial to check multiple versions of a code (if a researcher has cost-effective access to multiple versions) as the annotations may differ.
56 Note that for full, formal citation when producing legal writing, more information would be required. See The Bluebook: A Uniform System of Citation R. 12, 112-125 (Columbia Law review Ass’n et al. eds., 19th ed. 1st prtg. 2010).
57 The Bluebook: A Uniform System of Citation 228-274 tbl.T.1.3 (Columbia Law review Ass’n et al. eds., 19th ed. 1st prtg. 2010).
58 Often, the overall table of contents will be reproduced at the front of each individual volume of a code.
59 Municode and American Legal Publishing dominate the ordinance-publishing business such as it is. The codes of ordinances published by these two companies do not feature annotations, as both companies generally operate on a low-overhead model.
60 See Catherine Drinker Bowen, Miracle at PhiladeLphia: the Story of the Constitutional Convention, May to September, 1787 (1966).
61 Max Farrand, The Records of the Federal Convention of 1789 (1911).
62 Alexander Hamilton, James Madison, and John Jay.
63 The Federalist Nos. 1-85 (Alexander Hamilton, James Madison, and John Jay).
64 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention in Philadelphia in 1787 (1861).
65 Black’s Law Dictionary 983 (9th ed. 2009).
66 Note that legislative procedures vary and also tend to be flexible. For instance, sometimes different, or even identical, versions of a bill may be introduced simultaneously in both houses. If they both pass, the legislature then can combine them instead of starting the process anew.
67 Note that the executive possesses the options of not signing or vetoing the bill, in which case it would not become a statute, barring a veto override.
68 Note that intent-inferring value does vary document by document. A researcher may find a Conference Committee Report that offers little interpretive value for a particular statute, while a different legislative history document for the same bill contains an express statement of intent. Generally speaking, though, a Conference Committee Report containing evidence of intent would be more persuasive than other documents, since the Conference Committee will have dealt most closely with what became the final version of the statute.
69 See, e.g., Bernard D. Reams and Charles R. Haworth, Congress and the Courts: a Legislative History, 1787-1977: Documents and Materials Regarding the Creation, Structure, and Organization of Federal Courts and the Federal Judiciary (1978).
70 For a comprehensive bibliography of available compiled legislative histories, see Nancy P. Johnson, Sources of Compiled Legislative Histories: a Bibliography of Government Documents, Periodical Articles, and Books (2d ed. 2012).
71 Note that in addition to its print form, USCCAN is now also published electronically on WestlawNext. It remains a trusted and useful source for legislative history research in the computer era.
72 See The Bluebook: A Uniform System of Citation R. 13.4, at 129, R 12.6, at 118, (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).
73 In the event that students find themselves needing to consult microfiche or microfilm, just ask a reference librarian for help.
74 The GPO maintains a list of libraries participating in the Federal Depository Library Program at http://catalog.gpo.gov/fdlpdir/FDLPdir.jsp.
75 Congress.gov includes finding aids for legislative documents from 1973 onwards that would make finding them in a Federal Depository Library easier, but only contains the full-text of documents from 1993 onwards.
76 ProQuest’s subscription databases, such as Legislative Insight, are marketed mostly to research universities. The libraries of major public universities typically allow on-site use of subscription databases.

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