Statutory analysis.
Jurisdiction | United States |
Section 56. Statutory analysis.—Sometimes the answer to a given problem is found, not in judicial decisions, but in painstaking analysis of the controlling statute. In such a situation, a lawyer's normal reaction is to look to see how the statute has been construed, to analyze the decisions construing it, and then to write his brief accordingly. That is always, quite properly, the first approach, but too often the tendency is to stop there and to rely solely on the decided cases.
The difficulty with not going further is that all too frequently the court which first construed the statute did not have all the relevant statutory materials before it; that it proceeded to determine the legislative intent without examining the expressions and materials from which that intent could be ascertained; and that subsequent decisions merely interpreted the first case and ceased to attempt to interpret the statute. The consequence of this technique is a stab at statutory analysis that did not analyze the statute but only undertook to reconcile decisions that had similarly failed to analyze it. Accordingly, the ultimate result has frequently been very far from what Congress really had in mind when it passed the act.
So—when you deal with a problem of statutory analysis, start by analyzing the statute, and by studying your particular provision in its setting. In this connection, it is well to bear in mind that annotated codes may be somewhat of a hindrance in this endeavor, for by their very wealth of annotation they render more difficult your bird's-eye survey of the underlying provisions. Therefore it is often helpful to get the feel of the related sections as they appear consecutively in the official edition of the U. S. Code, in such a way as to understand the statute as a whole, before turning to the annotations to the separate sections in the USCA or in similar compilations.
Remember that you are not bound by your provision's present position, either in the U. S. Code or in the earlier Revised Statutes. The Nye127 and Williams128 cases hold that it is proper to go back to the law as originally enacted to ascertain the congressional intent.
The Supreme Court years ago said that "The re-enacted sections are to be given the same meaning they had in the original statute, unless a contrary intention is plainly manifested."129 But that is a general rule only, and then so sapped of vitality by the qualification as to be virtually meaningless. When is a contrary intent...
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- Introductory.
- The basic precepts.
- Write the Statement of Facts first.
- How to go about writing the Statement of Facts.
- Steps after completing the index of testimony.
- Final revision of
- Think before you write the argument.
- Never let the other side write your brief.
- Research; some general considerations.
- Evaluation of decided cases.
- The case in point.
- When there is no case in point.
- Use of analogies.
- Handling authorities apparently against you.
- Use of dissenting and concurring opinions.
- Briefs filed in earlier cases involving the same or related questions.
- Statutory analysis.
- Legislative history.
- Administrative materials.
- Use of essentially historical materials.
- Use of noncase materials.
- Encyclopedias; collections of annotated cases.
- Use of law review materials.
- The next step in brief-writing.
- Write consecutively.
- Write the Summary of Argument last of all.
- Finally, check!
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