– ANALYZING THE LAW
2
ANALYZING THE LAW
The second step in legal reasoning is to analyze the plausibly applicable statutes and cases to identify both the rules of law and the underlying policies contained therein. In this chapter, the techniques for analyzing statutes and cases are discussed. Enacted law, described generically here as statutory law, is discussed separately from case law.
I. ANALYZING STATUTES
The analysis of a statute for purposes of identifying the rule of law is simple because the statute itself is the rule of law. Thus, the process of identifying an applicable statute and the process of extracting the rule of law are the same.
Identifying the policies underlying the statute can be quite difficult, however. The policies underlying a statute are those that the legislature sought to promote when it enacted the law.
Lawyers use a variety of approaches to identify the policies underlying a statute, and they often disagree concerning which of these approaches is appropriate. In other words, statutory interpretation is an aspect of legal reasoning that can be controversial even among mainstream lawyers. All of the approaches, however, are sometimes relied upon by the courts.
One approach is to examine the statute itself. Occasionally, a legislature enacting a law, especially a comprehensive reform measure, includes a section that states explicitly at least some of the policies underlying the legislation. This section of the legislation often is described as “legislative findings.” All lawyers agree that it is appropriate to use these findings to identify the policies underlying a statute.
Another approach is to examine the history of the statute. Many courts have said that the best indication of legislative policy is the language of the statute itself, and, therefore, if the meaning of the language is clear on its face, a court should not delve into its history. In this view, only when there is some doubt about the meaning of the statute should a court look beyond the statutory language.1 Some lawyers argue that one should never consider more than the language of the statute because only the statute itself is the law, and, as discussed below, the history may be unreliable.
Courts nevertheless often do examine legislative history. They may choose to justify reference to legislative history by declaring the statutory meaning to be unclear, or they may simply cite the history as confirming the meaning that was evident on the fact of the statute.
As discussed in chapter 1, this history may include records of various committee hearings, the reports issued by the committees when they sent the bill to the full body, the debate on the floor of each body of the legislature prior to passage, and conference reports and statements made by the president or governor at the time the bill was signed or vetoed. This research, however, may also be inconclusive because, for reasons discussed in chapter 6, legislative history is often incomplete or misleading or allows more than one interpretation. In any event, suffice it to say that rarely would a competent lawyer deliberately omit an argument based on legislative history that was favorable to her client.
Researching the history of a statute may involve inquiry into events beyond the formal process by which the statute was enacted, such as investigating the social conditions that prompted its passage. For example, a lawyer may examine the circumstances prior to enactment of the statute; try to determine the nature of the problem, sometimes referred to as the “mischief,” that led to its enactment; and argue that the policy of the statute was to eliminate or diminish the mischief.
Identification of the mischief, however, does not necessarily reveal with sufficient clarity the policy underlying the statute. As explained in chapter 1, lawyers prefer to draft rules using general language, and thus the legislature very likely used language in the factual predicate that covered more than the exact situation that prompted the legislative enactment. An anti-corruption law enacted after revelations that a senator had accepted very large honoraria from special interest groups might not simply prohibit honoraria but is likely to be much broader, prohibiting, for example, the giving of “any thing of value.” Because the language is broader than the precise situation that the legislature had in mind, the lawyer must still decide what the legislature supposedly “intended” with respect to all of the situations that are arguably covered by the language but do not constitute the precise mischief consciously addressed. Does the statute, for example, prohibit giving a senator information that has no commercial value but that the senator may nevertheless find useful and thus valuable?
The indeterminacy of the investigation into the history of a statute provides the lawyer with the opportunity for advocacy on behalf of a client. The lawyer may argue successfully that a particular policy underlies a statute, even when no evidence exists that that policy was consciously in the minds of all those involved in the enactment of the statute or when evidence exists that some involved in the enactment opposed the policy.
The lawyer’s examination of the policies underlying a statute may also extend beyond the historical events that originally prompted its enactment to include an inquiry into contemporary notions of good public policy. Interpreting a statute according to current public policy, as opposed to the policy of the legislature that originally enacted the law, is controversial. Considering policies not embraced by the legislature may seem undemocratic. Further, as explained in chapter 1, the courts in theory are authorized only to apply the law enacted by the legislature, not to modify the law by using it to further policies not contemplated by the legislature. Most courts would agree, however, that no statute should be interpreted in a way that would lead to an “absurd” result. This position can be reconciled with the view that the intent of the drafters should prevail by assuming that the legislature would never have intended an absurd result.
As long as the result is not absurd, however, most courts would insist that the apparent intent or purpose of the legislature be followed. Thus, the lawyer’s examination of current notions of public policy is usually very limited.
The choice between interpreting a statute by reference to its language alone and interpreting it by reference to extrinsic sources, such as the legislative history or current notions of public policy, is a fundamental tension that pervades the legal reasoning process. This tension will be further discussed in chapters 5 and 6.
II. ANALYZING CASES
A. The Components of a Case
Analyzing case law is a much more complex undertaking than analyzing a statute. The discussion in this section covers the various components that may be found in a well-written judicial opinion, the significance of each, and how each should be analyzed. Because most published judicial opinions are appellate decisions, this discussion assumes that the case under analysis is an appellate decision.
1. FACTS
A judicial opinion usually begins with a description of the facts. This is a narrative of the events that gave rise to the dispute submitted to the court for decision.
Many of the facts in the opinion are of meager significance but are there merely to provide a context for the facts that do matter. Without them, the rest would not make sense. On a first reading, however, a lawyer generally does not know which of the facts are significant. As will be seen, determining which facts are significant requires first identifying the rules of law and the underlying policies that govern the case.
2. PROCEDURAL HISTORY
Next, the procedural history is summarized. This portion of the opinion sets forth a description of the events that occurred in the trial or lower appellate court during the course of the litigation, beginning with the filing of a complaint, which is the first step in a litigation.
Like the factual recitation, much of the procedural history is of minimal importance in itself but provides context. The procedural history generally indicates one detail that is of fundamental importance: the precise nature of the decision in the lower court that has been appealed.
The nature of the decision from which the appeal is taken is critical because, as discussed in chapter 1, it determines the standard of review that the court of appeals applies to the trial court’s decision. The standard of review, in turn, determines what the appellate court must decide and the effect that the appellate court’s decision will have on future cases.
For example, if a physician is appealing a jury verdict that she was negligent in providing medical care, the appellate court reviews the verdict only to determine whether it was supported by substantial evidence. To affirm the judgment against the physician, the appellate court need not decide that the physician was negligent but only that there was substantial evidence to that effect, which is a much different determination. The appellate judges may believe that the physician in fact was not negligent. As long as there is substantial evidence that supports the verdict, however, the judgment will be affirmed.
Moreover, because the appellate court is not deciding whether the physician was negligent but only whether there was substantial evidence that she was, the appellate court’s opinion upholding the jury’s verdict against the physician cannot be cited by lawyers in future cases as deciding that such conduct by the physician was negligent. Rather, the appellate court’s opinion can be cited only as establishing that such conduct could be negligent. The use of a prior decision is discussed further in chapter 5.
3. QUESTIONS PRESENTED
At the end of the procedural history, the opinion states the questions presented. These are simply the questions that the appellant has asked the court to decide. In other words, they are the issues on appeal.
Each question asks, in effect, whether some decision made in the trial or lower appellate court was erroneous, requiring reversal of the judgment. The entire rest of the opinion is devoted to deciding the questions presented.
4. RULES OF LAW
To decide the questions presented, the opinion begins by announcing rules of law. These are general principles of law that state that, under a particular set of circumstances, a certain right or duty exists.
The court announces these rules because it believes they govern the questions that it must decide. In effect, the rules establish the parties’ rights and duties in this case as well as in all similar cases. Usually, most or all of the rules have been announced in prior cases, and the court cites the earlier cases from which each rule is taken.
The rules of law are of great importance. Much of the factual and procedural history is significant because it provides the context for some other part of the opinion, but the rules of law are important simply in themselves. Because they are thought to govern the reported case as well as similar cases, these rules may ultimately determine the results of the situation that the lawyer has been asked to review. The lawyer must carefully read and extract from the opinion each of the rules of law announced.
Identifying the rules of law can be difficult because they may not be stated in a clear, concise fashion. The elements may be scattered throughout a lengthy discussion, requiring the lawyer to construct the rules from a series of statements. The same rule may be stated more than once, in slightly different form, requiring the lawyer to choose the version that best explains the result reached.
As this suggests, extraction of the rule from a judicial opinion is not always a mechanical process. Two lawyers reading the same opinion may well disagree on the rule of the case. And because of the need at times to construct rules, the rule extracted by the lawyer may be phrased in the lawyer’s own words rather than in the words of the court.
A case law rule thus differs from an enacted rule. Less importance is attached to the literal language of a case law rule simply because often no single authoritative version of the case law rule exists. The indeterminacy of the language of a case law rule, of course, provides the lawyer with the opportunity to articulate the rule in the form most favorable to the client’s position.
5. APPLICATION OF LAW TO FACT
The next portion of the opinion applies the law to the facts. This is a discussion of how the court has decided whether each element of each rule was satisfied by the facts before it.
Recall from chapter 1 that the elements of a rule are typically phrased in very general terms. When writing an opinion, the court must decide whether the specific facts of the dispute before it fall within the meaning of the broad, generic facts set forth in the rule. In some cases, the court finds the language of the rule of law so clear that it believes only one result is possible. For example, a court would likely hold that a red Chevrolet is a motor vehicle.
In other cases, the court may decide that the language of the rule is too general to dictate a single result and that the policy behind the rule must be examined. The court will attempt to decide which result would best further the policies underlying the particular rule.
For example, if the rule to be applied prohibits the use of a “motor vehicle” in a park, the court may have to decide whether a remote-controlled toy operated by a child falls within the definition of a motor vehicle.2 The court may decide that the purposes underlying the rule are to promote the recreational use of the park and to ensure the safety of pedestrians. Because a remote-controlled toy presents relatively little danger to pedestrians, ensuring pedestrian safety probably does not require that the toy be considered a motor vehicle. Moreover, promoting the recreational use of the park would require that the toy not be considered a motor vehicle. Thus, the court would further the policies underlying the rule by deciding that the toy does not fall within the meaning of the term motor vehicle.
These discussions of policy are of considerable importance. They reveal the policies behind the rules, and, as will be shown in chapter 5, they provide a basis for deciding whether the elements of the rules are satisfied in future cases or even whether the rules should be changed.
Paradoxically, despite its importance, the policy discussion may be the portion of the opinion that is the least structured or methodical. The court may simply announce that public policy favors a particular result, without attempting to explain how the court knew such a policy existed.
Moreover, a judicial decision, rather than being based on a single policy, almost always reflects a balance between at least two competing policies, one of which supported creation of the right or duty and the other of which opposed it. In the example above, the motor vehicle rule was based on policies of promoting the recreational use of a park and protecting pedestrians. On the one hand, the policy of ensuring pedestrian safety, taken to extremes, would have required banning the toy, since a pedestrian could trip over it or be startled by it. On the other hand, promoting the recreational use of the park, as noted, required that the toy be allowed.
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