CHAPTER 3 – STATUTORY ANALYSIS required to engage in statutory analysis to determine whether and how a

statute applies in a specific fact situation.

Until recently, Cecil’s assignments at the law firm have been to prepare The focus of this chapter is the process of statutory analysis. It begins
deposition digests. He is good at what he does but wants to be involved in with a presentation of the anatomy of a statute, follows with a discussion
projects in the early stages of the litigation process. At his request, he has of the process of statutory analysis, and ends with general considerations
been assigned to work exclusively with Ms. Tilton. Ms. Tilton is a involving statutory construction and analysis
litigation attorney who specializes in corporation and contract law.
His first assignment from Ms. Tilton is to determine whether Mrs. statutory law
Jackson has a cause of action against Beauty Care beauty salon for breach The body of law composed of laws passed by legislative bodies. The term
of warranty under the sales provisions of the state’s commercial code. includes laws or ordinances passed by any legislative body.
Mrs. Jackson went to her hairdresser,
Beauty Care beauty salon, to get their “special long-term hold” statutory analysis
permanent. Once a year for the past three years she has asked for the The interpretation and application of statutory law.
“special” permanent. The process of determining whether a statute applies to a specific fact
Beauty Care made no warranties about the permanent. It did not provide situation, how it applies, and the effect of that application
Mrs. Jackson, either in writing or orally, any statements concerning the
quality of the permanent. The receipt she received for the permanent listed II. ANATOMY OF A STATUTE
a twenty-dollar charge for the permanent kit and other products and an Before you can analyze a statute, you must be familiar with the basic
eighty-dollar charge for the services of the beautician. structure of statutory law, the component parts. Assume, for the purposes
Three days after Mrs. Jackson was given the permanent, her hair, which of illustration, that you are interested in whether a contract for the sale of
had been blond, turned a light green. Five days later, it broke off goods must be in writing, and the governing law is the Indiana Code.
approximately one inch from the scalp—not a good result. Exhibit 3–1 shows selected portions of the Indiana
Cecil, based on his experience as a paralegal, is aware that Mrs. Jackson Code concerning commercial law. To the left of the sections of the code
has a possible tort negligence claim and other possible causes of action (in the margins) are terms that describe the components of the code. The
against Beauty Care. But his assignment is to determine whether there is following text discusses each descriptive term and that portion of the
also a possible breach of warranty claim under the state’s commercial statute referred to by the term.
code. Not all of the statutory components included in the discussion of the
Cecil’s research indicates that the Commercial Code Sales Act applies Indiana Code in Exhibit 3–1 are included in every statute. Some statutes,
only to the sale of goods and includes three warranties that may apply in for example, may not have a definition section. It is important, however,
Mrs. Jackson’s case. Cecil has not worked with statutes since he obtained to discuss the components here so you will be familiar with them if you
his associate’s degree in paralegal studies. Several questions occur to him: encounter them in other statutes.
Does the act apply? Is this a sale of goods within the meaning of the act?
If this is a sale of goods, which warranty applies? How do you analyze a A. Number
statute? Every statute has numbers assigned to each section of the statute. Each
legislative authority—local, state, and federal—follows a different
I. INTRODUCTION numbering system.
This chapter focuses on how to analyze enacted law. As discussed in Therefore, it is not practical to discuss separately each numbering system.
Chapter 1, enacted law includes constitutions (governing documents There are some general similarities, however, that can be addressed. Most
adopted by the people), laws passed by legislative bodies, and the rules laws are divided into broad categories, each of which is assigned a
and regulations adopted by administrative agencies. number. Those broad categories are divided into topics or smaller
Laws passed by Congress or state legislatures are generally called acts or categories that are also assigned numbers.
statutes. The topics are further divided into subtopics, each of which is assigned a
This body of law is commonly referred to as statutory law. Ordinances number, and so on. The number of categories and divisions depends on
are laws usually passed by local governing bodies, such as city councils the statutory scheme of the particular legislative authority.
and county commissions.
Administrative agencies, under the authority granted by legislative bodies, For example: The laws of Indiana are divided into broad categories called
adopt rules and regulations that have the force of law. Courts adopt rules titles. Commercial law is assigned the number 26. (See Number of Title at
that regulate the conduct of matters brought before the court. For the sake the top of the first page of Exhibit 3–1.) Each title is divided into areas
of clarity, throughout this chapter the discussion and examples focus on called articles. Commercial law in the Indiana Code is divided into three
laws passed by legislative bodies, statutory law. Note, however, that the articles, numbered 1, 2, and 3. The Uniform Commercial Code article,
principles presented in the chapter apply to the analysis of constitutions, which governs commercial transactions, is assigned the number 1. The
statutes, administrative law, and court rules. three articles are listed under COMMERCIAL LAW. (See
A paralegal must become familiar with statutory law to conduct legal Number of Article at the top of the first page of Exhibit 3–1.) Article 1,
research and analysis. Statutory law has assumed an ever-increasing role the Uniform Commercial Code, is divided into ten chapters. They are
in the United States. listed under UNIFORM COMMERCIAL CODE. (See Number of
With the passage of time, the body of law represented by statutory law has Chapter on the first page of Exhibit 3–1.) The chapter governing the sale
expanded greatly. Many matters once governed by case law are now of goods is Chapter 2 (Sales). Each chapter is divided into sections, and
governed by statutory law. each section is assigned a number. (See Number of Section in Exhibit
3–1.) Each section contains the actual law that governs a subject. The
For example: Criminal law was once exclusively established and section of Chapter 2 (Sales) that establishes when a contract must be in
regulated by case law. Today, however, most criminal law is governed by writing is assigned the number 201. This section is called Formal
statutory law. requirements—Statute of Frauds (see §
26-1-2-201 on the second page of Exhibit 3–1).
With the growth of statutory law, more and more legal problems and Therefore, if you want to read the law in the Indiana Code governing
issues are governed by it. Since an increasing number of legal problems when a contract must be written, you refer to title 26 (Commercial Law),
and issues require the interpretation and application of statutory law, article 1 (Uniform Commercial Code), Chapter 2 (Sales), section 201
paralegals are more frequently called upon to engage in statutory analysis. (Statute of Frauds). This is usually referred to numerically as § 26-1-2-
Statutory analysis is the process of determining whether a statute 201, Statute of Frauds.
applies, how it applies, and the effect of that application. Because most
statutes are designed to cover a broad range of present and future B. Short Title
situations, they are written in general terms. As a result, a paralegal is The short title is the name by which the statute is known. It is a name that
is easy to use when referring to the statute. Included in Exhibit 3–1 are
examples of two shorttitles in the Indiana Code: the short title of article 1, Following each section of a statute, in small print, are references to
Uniform Commercial Code (§ 26-1-1-101), and the short title of Chapter various sources of information related to the section. These source notes
2, Uniform Commercial Code—Sales (§ 26-1-2-101). (See Short Title on are usually referred to as annotations. This include:
the first and second pages of Exhibit 3–1.) The history of the section, including dates of amendment. They may also
include summaries of the amendments and previous statutory numbers if
short title the section number has changed owing to a recodification.
The name by which a statute is known (e.g., Uniform Commercial Official comments on the section.
Code—Sales). Cross-references to related statutes. (See the last page of Exhibit 3–1.)
Library references/research guides—References to other sources that may
C. Purpose Clause be useful when analyzing the statute, such as books, digest key numbers
The purpose clause includes the purpose the legislative body intended to (see Chapter 5), law review and other articles, American Law Report
accomplish when drafting the statute. It is helpful in determining the (ALR) cites, and legal encyclopedia cites that discuss the section (Corpus
legislative intent. (See Purpose Clause in Exhibit 3–1, § 26-1-1-102.) Juris Secundum, American Jurisprudence Second, etc.). (See the last page
of Exhibit 3–1.)
purpose clause Notes to decisions—The name, citation, and summaries of key court
A statutory section that includes the purpose the legislative body intended decisions that have discussed, analyzed, or interpreted the statute. When a
to accomplish when drafting the statute. statute has been interpreted or referred to in a large number of cases, the
cases are indexed according to subject and each category is assigned a
D. Scope number. If you have a question concerning the interpretation of a statute,
Some statutes have sections that state specifically what is and is not by scanning the notes you may immediately locate a case on point. This
covered by the statute. These are called scope sections. A paralegal often saves time spent in locating a case through other means. (See the
should first review this section when analyzing a statute, because a review last pages of Exhibit 3–1.)
of this section may lead to a determination at the outset of whether the Annotations are sources of information and are not part of the statute.
statute applies. (See Scope in Exhibit 3–1.) They are not the law and do not have legal authority. (See Reference
Information in Exhibit 3–1.)
scope It is easier to work with statutes after establishing a familiarity with the
A statutory section that states what is covered and not covered by the component parts. The material presented here will help you gain that
statute. familiarity, but the greatest familiarity comes with practice. Choose a
subject you are interested in and read the statute in your jurisdiction that
For example: You are researching a question under Indiana law involving governs the area.
a contract that grants a security interest in goods that are being sold.
The scope section of the Uniform Commercial Code, § 26-1-2-102, III. STATUTORY ANALYSIS: THE PROCESS
provides that the section does not apply to such transactions. You know at The analysis of enacted law and court rules is a process of determining
the outset that the state Uniform Commercial Code does not apply and whether a law applies, how it applies, and the effect of that application to
that it need not be considered further. a specific fact situation.
When analyzing a legal problem or addressing an issue that is governed
E. Definitions by constitutional, statutory, or administrative law provision or a court
Some statutes have definitions sections that define terms used in the rule, it is helpful to have an approach, an analysis process. This process
statute. allows you to approach the matter in a way that efficiently solves the
The definitions are helpful in determining the parties and situations problem in the least amount of time, with the least confusion, and with the
covered by the provisions of the statute. (See Definitions in Exhibit 3–1, § greatest accuracy. For the sake of clarity, throughout this section the
26-1-1-301.) discussion and examples focus on laws passed by legislative bodies,
statutory law. Note, however, that the principles presented here apply to
F. Substantive Provisions the analysis of constitutions, statutes, administrative law, and court rules.
The substantive sections set forth the substance of the law. (See It is recommended that the three-step approach presented in Exhibit 3–2 is
Substantive Provisions in Exhibit 3–1.) They establish the rights and followed when addressing a legal problem or issue governed by statutory
duties of those governed by the statute: what is required, prohibited, or law. These steps may be summarized as follows:
allowed. A substantive section of the Indiana Step 1 Determine whether the statute applies in any way to the legal
Code addresses the question posed at the beginning of this chapter, problem or issue.
“When must a contract for the sale of goods be in writing?” (See § 26-1- Step 2 Carefully read the statute and identify the required elements.
2-201 in Exhibit 3–1.) Step 3 Compare or match the required elements to the facts of the
The substantive sections may include sections that provide remedies, such problem and determine how the statute applies.
as fines or imprisonment in criminal cases. There may be sections These steps are a helpful approach to statutory analysis, although in some
governing procedure, such as which court has jurisdiction over the matters instances a step may be unnecessary—for example, step 1 is unnecessary
covered by the statute. The substantive provisions are what you usually if you already know that the statute applies—and in other instances, a
refer to when addressing the client’s legal problem. different approach may be required. Each step in this recommended
approach is discussed separately in what follows.
G. Other Provisions
Not included in the example in Exhibit 3–1 are other types of statutory Exhibit 3–2
sections you may encounter. Statutory Analysis:
Three-Step Approach
For example: There may be statutory provisions that:
- State which administrative agency is responsible for administering the Step 1 Determine whether the statute applies.
act. Part 1. Locate all possible applicable statutes.
- Incorporate by reference sections of other statutes. Part 2. Determine which statutes apply.
- Limit the application of the statute through exceptions. Step 2 Analyze the statute.
- Establish when the statute takes effect. Part 1. Read the statute.
- Repeal other statutes. Part 2. Identify the statutory elements—what does the statute specifically
- State that the statute is cumulative to the case law and other remedies declare, require, or prohibit.
still exist. Step 3 Apply the statute to the legal problem or issue.
Chart format
H. Reference Information Narrative format
A. Step 1: Determine Whether the Statute Applies If this occurs, steps 2 and 3 would be followed in regard to each statute.
The first step in the process is to determine which law, if any, covers the When determining whether a statute applies, always check the effective
legal issue raised by the client’s fact situation. The first task, then, is to date of the statute to be sure that the statute is in effect. This is usually
determine which statute or statutes govern the question. found in the statute itself or in the historical notes or comments in the
This step involves two parts: reference sections following the statute. Also, always check the
Part 1 Locate all applicable statutes supplements to the statute to make sure that the statute you are
Part 2 Determine which statutes apply researching is the latest version. Supplementary material published after
1. Part 1: Locate All Applicable Statutes the publication of the main text is often located immediately following the
Before you can determine if whether a particular statute applies, you first statute or in a separate section or pamphlet. The supplements include any
must locate all statutes that possibly apply. The location of one applicable changes in the statute or reference material that have occurred since the
statute does not mean you should stop your search. Make sure your publication of the book containing the statute.
research is thorough and complete.
Continue researching until you are confident that all areas of law that may B. Step 2: Analyze the Statute
govern the problem have been explored and all potential applicable After you determine that a statute applies, you must carefully read and
statutes located. analyze the statute to determine how it applies. Some statutes are lengthy
Some matters are covered by more than one statute. and difficult to understand. You may need to check the library references
to locate other library sources that explain and interpret the statute. It may
For example: The client’s case may involve the validity and enforceability be necessary to make a chart to assist you in understanding the specific
of a small loan contract. There may be several statutes that govern the provisions and operation of a statute.
enforcement of such contracts: the federal Truth-in-Lending Act, the state Step 2 involves two parts that are addressed in the text that follows:
Small Loan Act, and the state Usury Act. Part 1 General concerns when reading statutory law
Part 2 Statutory elements—What does the statute specifically declare,
2. Part 2: Determine Which Statutes Apply require, or prohibit?
Determine whether each statute applies by asking yourself, “Does the 1. Part 1: General Concerns
general area of law covered by this statute apply to the issue raised by the Several general concerns should be kept in mind when reading statutory
facts of my client’s case?” law:
You can usually answer this question by referring to the scope section of 1. Read the statute carefully several times.
the statute, the definitions section, or case law. 2. Does the statute set a standard or merely provide factors that must be
considered?
Reference to the scope section of the statute will often answer the 3. Does the statute provide more than one rule or test? Are other rules or
question of whether the statute applies. tests available? Are there exceptions to the rule or test?
4. All the words and punctuation have meaning. Always check the
For example: The problem involves the validity of a contract for the sale definitions section for the meaning of a term. If there is no definition,
of a security interest in a car. The scope section of the Commercial consult case law, a legal dictionary, or Words and Phrases. Do not
Code—Sales statute provides, “This chapter does not apply to any assume you know what a term means. Your assumption may be wrong. A
transaction which . . . is a sale of a security interest or intended to operate legal term may have several meanings, some of which may be unknown
only as a security transaction . . . .” Reference to this section clearly to you.
indicates that such transactions are not covered by this statute. If the facts
involved the sale of the car, rather than the sale of a security interest in the For example: The word publication in tort law means more than
car, the statute might apply. presentation in the print or visual media. It means communication to a
third party by any means. Under this definition, two neighbors gossiping
Often, reference to the definitions section of a statute will help you over a backyard fence can constitute publication.
determine whether a statute applies.
All punctuation counts. If you cannot understand how to read a statute,
For example: consult a secondary source, such as a treatise or legal encyclopedia.
The legal problem involves the sale of a farm. The question of whether 5. Review the entire statute (all sections) to determine whether other
this sale is governed by the provisions of the Commercial Code— sections in some way affect or relate to the section you are researching.
Sales statute is answered by reference to the definitions section of the
statute. In that section, goods are defined as “all things which are movable For example: Section 611-9 of a statute provides:
at the time of the contract for sale ...” The statute clearly does not apply to (a) A will that does not comply with Section 611-8 is valid as a
the sale of a farm. holographic will if the signature and the material provisions are in the
handwriting of the testator.
In some instances, reference to case law may be necessary to determine (b) If a holographic will does not contain a statement as to the date of its
whether a statute governs a situation. execution and it is established that the testator lacked testamentary
capacity at any time during which the will might have been executed, the
For example: Suppose the client’s case involves the lease of goods, and will is invalid unless it is established that it was executed at a time when
neither the scope nor definitions section of the Commercial Code—Sales the testator had testamentary capacity.
statute indicates whether the term sale includes a lease of goods. (c) Any statement of testamentary intent contained in a holographic will
Reference to case law may be necessary. Court decisions often define may be set forth either in the testator’s own handwriting or as part of a
terms not defined in a statute. commercially printed form will.
Note that a holographic will is a will written by the testator in his or her
Note that often the relevant case law may be located by looking to the own handwriting and not witnessed. Subsection (a) sets the standard for
reference information following the section of the statute. when a holographic will is valid. Subsection (b), however, addresses a
It may be that two laws govern a legal question. In this event, two causes situation that affects the validity of a holographic will even if the
of action may be available. requirements of subsection (a) are met.
Subsection (c) establishes how testamentary intent may be set forth.
For example: A small loan may violate provisions of both the federal
Truthin-Lending Act and the state usury law. In this case, there may be a The preceding example illustrates a point that cannot be overemphasized:
cause of action under the federal law and a cause of action under the state Read and consider all parts of a statute. Suppose the legal question is,
law. “What is required for a holographic will to be valid?” If you stopped
reading the statute at subsection (a) because it appeared to answer your
question, you would miss the other provisions that also affect the answer How is the term goods defined? Assume the term is defined in the
to the question. Always read the entire statute. definitions section of the Commercial Code—Sales as “all things movable
6. Certain common terminology must be understood. Be aware of the at the time of sale.” The statute also requires the individual to be a
meaning of commonly used terms such as shall, may, and, and or. “seller.” How is seller defined in the definitions section of the act?
Shall makes the duty imposed mandatory. It must be done. May leaves the Assume the term is defined as “anyone who sells goods.”
duty optional. If and is used, all the conditions or listed items are required. 2. The seller has reason to know the purpose for which the goods are
If the term or is used, only one of the conditions or listed items is required. For the act to apply, the seller must have reason to know of the
required. purpose for which the buyer wants the goods. The statute does not require
actual knowledge on the part of the seller. It provides only that the seller
For example: Section 24-6-7-9 of a statute provides, “A person is must have “reason to know.” You may need to refer to case law to
concerned in the commission of a crime if he: determine what “reason to know” means or requires.
a. directly commits the crime; 3. The seller has reason to know the buyer is relying on the seller’s skill
b. intentionally causes some other person to commit the crime; or or judgment. This is usually established by the words or actions of the
c. intentionally aids or abets in the commission of the crime.” buyer that indicate to the seller the buyer’s reliance on the seller’s skill or
judgment.
The use of or in this example means that a person is covered by the statute 4. The buyer must actually rely on the seller’s skill or judgment in
if he or she does any one of the listed acts. furnishing suitable goods. This is required because the statute provides
“the seller ... has reason to know ... that the buyer is relying ....”
For example: Section 50-9-1 of a statute provides that holographic wills 5. The seller must have known of the purpose for which the goods were
are valid if they are: required and the buyer’s reliance on the seller’s skill or judgment in
a. entirely in the handwriting of the testator, and furnishing the goods at the time the sale was taking place, not later. This
b. signed by the testator. is required because the statute provides “the seller at the time of
contracting ... .” Be sure to complete both parts of step 2 before
The use of and in this statute means that both conditions must be met for proceeding to step 3.
the will to be valid.
7. Keep in mind the cannon of constructions when reading. These are C. Step 3: Apply the Statute to the Legal Problem or Issue
presented in the General Considerations section of this chapter. After you have identified the elements, which are the conditions necessary
for the statute to apply, apply the elements to the legal problem or issue
2. Part 2: Statutory Elements raised by the client’s fact situation. This entails applying or matching the
What does the statute specifically declare, require, or prohibit? Once you facts of the client’s case to the elements of the statute.
have carefully read the statute, analyze the section of the statute in This step may be accomplished in several ways. One way is to prepare a
question. How does the statute apply? Ask yourself, “What specific chart that lists the elements of the statute. Next to this, list the facts from
requirements must be met for the statute to apply? What are the the client’s case that match or establish each of the elements or
elements?” For a statute to apply, certain conditions established by the requirements of the statute. Another way is to prepare a narrative
statute must be met. These conditions or components of the statute are summary of the elements and how the facts of the case match or establish
called statutory elements. After the elements have been identified, you the elements. The following sections use examples to illustrate the
can determine how the statute applies. performance of step 3 in both chart and narrative summary format.
After you have a sufficient understanding of the statute, begin this part of 1. Chart Format
step 2 by breaking down the statute into its elements. Identify and list the In the following example, a chart format is used.
elements that must be met for the statute to apply. This is necessary
because you must know what the elements are before you can proceed to For example: Tom goes to the local hardware store and informs the
step 3 and apply them to the legal problem or issue raised by the client’s salesperson that he needs to grind metal with a power metal grinder. He
facts. tells the salesperson that he needs goggles to protect his eyes. The
Identify the elements or requirements of the statute by reading the entire salesperson, after looking through his stock, hands Tom a pair of goggles
statute, analyzing each sentence word by word, and listing everything that and tells him, “These are what you need.” Tom purchases the goggles,
is required. and when he uses them, a piece of metal pierces the lens of the goggle and
This includes listing all the various conditions and exceptions contained in damages Tom’s eye.
the subsections of the statute in question and the conditions and
exceptions included in other statutes that may affect the statute in Can Tom state a claim under the provisions of the implied warranty
question. statute, section 2-2-315, presented in the previous example? How does the
statute apply?
statutory elements Statutory Elements
The specific conditions of a statute that must be met for the statute to 1. Seller of goods
apply. 2. Has reason to know the purchasing the goods
3. Has reason to know of buyer’s reliance on seller’s judgment
For example: Consider section 2-2-315 of the Commercial Code—Sales 4. Reliance by buyer on seller’s skill or judgment
Act of state X: Where the seller at the time of contracting has reason to 5. At the time of contracting
know any particular purpose for which the goods are required and the Facts of Client’s Case
buyer is relying on the seller’s skill or judgment to select or furnish The seller was a salesperson at the local hardware store, a seller within the
suitable goods, there is an implied warranty that the goods shall be fit for meaning of the statute. The item sold, goggles, meets the definition of
such purpose. goods. (The goggles are “things movable at the time of sale.”) Tom
explicitly told the seller his purpose for buyer’s purpose in buying the
Read the statute in the preceding example sentence by sentence and goggles.
determine the elements. For the implied warranty of section 2-2-315 to This is implied from Tom’s conduct of allowing the seller to select the
apply, the following requirements must be met: goods without any input from Tom.
1. The person must be a seller of goods. How do you know “of goods” is Tom relied on the salesperson’s judgment.
required? He indicated the purpose and accepted, without independent judgment or
Section 2-2-315 quoted in the preceding example does not read “seller of act, what the seller selected.
goods” but refers only to “the seller.” You know “of goods” is required The seller knew at the time of the sale, not later, of Tom’s purpose and
because in step 1, in order to determine whether the statute applied to the reliance.
issue in the client’s case, you reviewed the scope section of the act. It
provides that the act applies only to the sale of goods.
After the elements of the statute have been identified and the facts of the Step 3 Compare or match the required elements to the facts of the
client’s case compared and matched with the required elements of the problem and determine how the statute applies.
statute, you can determine how the statute applies. In this example, you In addition to this three-step approach, there are other general
can conclude that the conduct of the salesperson is covered by the statute considerations to keep in mind when analyzing statutory law. These
and that an implied warranty was created. All the required elements of the considerations are presented in the following section.
statute are established by the facts in IV. GENERAL CONSIDERATIONS
Tom’s case: Always keep in mind two major considerations and guidelines when
1. The salesperson was a seller within the meaning of the statute, and the engaged in statutory analysis:
items sold were goods. 1. Legislative history
2. At the time of the sale, the seller was informed by the buyer of the 2. Canons of construction
specific purpose for which the goods were being purchased. These considerations come into play, and are of the greatest importance,
3. The seller knew of the buyer’s reliance on his skill and judgment. when the meaning of the statute is unclear and the meaning has not been
4. The buyer relied on the expertise and judgment of the seller. determined by a court.
5. The seller knew at the time of the sale, not later. When required to interpret a statute, a court will first look to the plain
meaning of the language of the statute. This is called the Plain Meaning
2. Narrative Summary Rule. The rule mandates that a statute will be interpreted according to its
In the following example, a narrative summary is used rather than a plain meaning. Words will be interpreted according to their common
chart. meanings. The court will render an interpretation that reflects the plain
meaning of the language and is consistent with the meaning of all other
For example: Section 56-6-1 of the Open Meetings Act provides that “all sections of the act. If the meaning is clear on its face, no additional
meetings of two or more members of any board ... at which any public inquiries concerning the meaning of the statute are allowed. If there is
business is discussed or at which any action may be taken or is taken are ambiguity in the meaning of a statutory section, the court will look to the
declared to be public meetings open to the public.” The section further legislative history of the statute and apply canons of construction.
provides: When engaging in statutory analysis, you should be aware of and keep in
”a. Such meetings shall be held only after full and timely public notice.” mind the considerations that the court applies when interpreting the
”b. This section does not apply to chance meetings or social gatherings at meaning of a statute.
which discussion of public business is not the central purpose.” The reason for this is obvious: You want your interpretation of the
Ida and Dan are members of a three-person state board. They run into meaning of the statute and how it will be applied to coincide with that of
each other at a Christmas party and discuss board business. the court. Each of these considerations is addressed in this section.

Is this meeting an open meeting governed by section 56-6-1? The Plain Meaning Rule
application of step 2 reveals an open meeting is required by the statute A canon of construction that provides that if the meaning of a statute is
when the following elements are present: clear on its face, it will be interpreted according to its plain meaning and
1. Two or more board members the other canons of construction will not be applied by the court.
2. meet at other than a chance or social gathering where discussion of
public business is not the central purpose, and A. Legislative History
3. public business is discussed or action may be or is taken. To determine the meaning of a statute, a court may look to the legislative
A narrative summary of the elements and the application of the statute to history of the statute to discover what the legislature intended it to mean.
the facts illustrates step 3: Legislative history is the record of the legislation during the enactment
1. Two or more board members. This element is met. Both Dan and Ida process before it became law. It is composed of committee reports,
are board members. transcripts of hearings, statements of legislators concerning the
2. Meet at other than a chance or social gathering where discussion of legislation, and any other material published for legislative use in regard
public business is not the central purpose. It appears that this element is to the legislation.
not met by the facts. This was a social gathering and also possibly a Legislative history may be of assistance in several ways when interpreting
chance meeting. a statute. The history may identify why an ambiguous term was used and
The gathering was a Christmas party. It does not appear that the what meaning the legislature intended, what the legislature intended the
discussion of public business was the central purpose. If it is discovered statute to accomplish, the general purpose of the legislation, and so on.
that the sole reason they went to the party was to discuss public business,
the exclusion in subsection (b) of the statute probably does not apply and For example: Section A(9) of the Housing Discrimination Act provides
the meeting may be covered by the act. that no person shall deny an individual housing on the basis of gender
preference. The court is called upon to interpret the term person. Does it
3. Public business is discussed or action may be or is taken. This element include corporations and businesses such as partnerships?
is met. Public business was discussed. In the case before the court, a closely held corporation that owned an
After performing step 3, it appears that this was not a public meeting apartment complex refused to rent an apartment to a couple because of the
within the meaning of the act. Although the requirements of the first and gender preference of the corporation employee who managed the
third elements are met (two or more board members met and discussed complex. The corporation argued that a corporation is not a person within
public business), the requirements of the second element are not. the meaning of the statute. Included in the legislative history of the statute
When performing step 3, remember to match the client’s facts with the is a committee report recommending the passage of the legislation. The
required elements of the statute. When this is accomplished, you can report contains the following: “The intent of the legislation is to eliminate
determine how the statute applies. In the example concerning the purchase any and all forms of gender discrimination in housing. The term ‘person’
of goggles and the sale of goods, all the required statutory elements were is intended to include all individuals and business entities, including
met by the facts of the client’s case, and an implied warranty was created. corporations.” The legislative history in this example provides the court
In the public meetings example, the facts did not meet the requirements of guidance in interpreting the statute.
the second element of the statute, and therefore the meeting was not a
public meeting within the meaning of the statute. Note that for federal statutes there is usually a great deal of legislative
D. Summary of the Statutory Analysis Process history.
The three steps presented in this section are a useful approach to statutory This may be reviewed by consulting the congressional record. Legislative
analysis. history for state statutes may be very limited or nonexistent, depending on
These steps may be summarized as follows: the state.
Step 1 Determine whether the statute applies in any way to the legal Consult the appropriate state legislative records or service office for the
problem or issue. availability of legislative history.
Step 2 Carefully read the statute and identify the required elements.
Remember, legislative history is considered only if the plain meaning of a 5. Intended Remedy. Statutes are to be interpreted in a manner that
statute is not clear or sections of a statute are internally inconsistent. If the furthers the intended legislative remedy.
meaning is clear, that meaning will be applied by the court even if the 6. Entire Context. The words, phrases, and subsections of a statute are to
legislative history indicates the legislature intended a different meaning. be interpreted in the context of the entire statute.
7. Constitutionality. Statutes are assumed to be constitutional and should
legislative history be construed in a manner that preserves their constitutionality, if possible.
The record of legislation during the enactment process. It is composed of 8. Criminal Statutes. Criminal statutes are to be narrowly interpreted.
committee reports, transcripts of hearings, statements of legislators It is important to remember that, as with all matters involving case law,
concerning the legislation, and any other material published for legislative when a court interprets a statute, the principle of stare decisis applies. A
use in regard to the legislation. court will follow the interpretation previously adopted unless the previous
interpretation is overruled and a new interpretation is adopted.
B. Canons of Construction
Canons of construction are rules and guidelines the courts use when V. Key Points Checklist: Working with Statutes
interpreting statutes. The Plain Meaning Rule governs when the canons of When reviewing a statute, do not limit your focus to a specific section.
construction apply. If the meaning of the statute is clear on its face, there Remember, a section is one part of an entire act that usually contains
is no room for interpretation and a court will not apply the canons of several statutory sections. Read a section in the context of the entire act.
construction. Be sure you are familiar with all the sections of the act, as there may be
The canons of construction are too numerous to be addressed individually another section, such as a definitions section, that affects the interpretation
in this text, but some of the better-known canons are presented here. of the statute you are reading.
1. Expressio Unius. The entire Latin phrase is expressio unius est exclusio When you find a statute that appears to apply, do not stop your research.
alterius, which translates as “the expression of one excludes all others.” If In many instances, more than one statute or legislative act applies to a
the statute contains a list of what is covered, everything else is excluded. specific question or fact situation. Read statutes carefully and slowly.
Several readings may be necessary. You may have to make a chart or
canons of construction diagram of the various sections and subsections of a statute to gain an
The rules and guidelines courts use when interpreting statutes. understanding of the operation of the statute.
All the words of a statute have meaning. If a word does not seem
For example: If a statute governing artists lists potters, glassblowers, necessary or appears repetitive, you may have misread the statute. Read it
painters, poets, writers, and sculptors but does not list weavers, weavers again. Consult a secondary source that contains a discussion or
are not covered by the statute. Only the occupations listed are covered. All interpretation of the statute.
other occupations are not covered. Do not assume a word means what you think it does. Many statutory
words are terms of art, loaded with meaning. Check the definitions section
Note, however, that statutes are often written to state that a list is not of the statute, case law, or a legal dictionary to ensure you give the correct
exclusive. meaning to a term.
When so written, this canon of construction does not apply, and the statute The plain meaning of a statute governs its statutory interpretation. If the
is not limited to the items listed. meaning is clear, it is not subject to interpretation.
If the statute is unclear or ambiguous, look to other sources for guidance,
For example: “A ‘Building’ as used in this statute means a structure on such as legislative history or applicable canons of constructions. Are there
private or commercial property and includes but is not limited to a court opinions that interpret the statute? Are there secondary sources, such
dwelling, an office of fixed location, ...” as law review articles or encyclopedia sections, that discuss the statute?

2. Ejusdem Generis. This term means of the same genus or class. As a VI. Application
canon of construction, it means that whenever a statute contains a specific The application of the principles of statutory analysis is illustrated in the
list followed by a general term, the general term is interpreted to be following examples.
limited to other things of the same class or kind as those in the list.
A. Chapter Hypothetical
For example: A statute regulating self-propelled vehicles lists “bicycles, In the hypothetical situation presented at the beginning of the chapter,
tricycles, unicycles, and other devices.” “Other devices” is limited to Cecil’s research turns up five sections of the state’s Commercial Code
mean devices of the same class or kind as bicycles, tricycles, and Sales Act that may apply:
unicycles. Motorized vehicles are not “other devices” within the meaning Section 29-2-102 provides that the act applies to the sale of goods only.
of the statute. Services are specifically excluded in the act.
Section 29-2-105 defines goods as “all things which are movable at the
3. Pari Materia. This Latin phrase translates as “on the same subject time of the contract for sale.”
matter.” Section 29-2-313 provides that an express warranty is created by a seller’s
As a canon, it means that statutes dealing with the same subject should be affirmation of fact or promise that relates to the quality of the goods.
interpreted consistently. Section 29-2-314 states that “a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a
For example: A state’s Fair Housing Act prohibits discrimination against merchant with respect to goods of that kind.”
an individual on the basis of “gender preference.” The state’s Fair Section 29-2-315 provides, “Where the seller at the time of contracting
Employment has reason to know any particular purpose of which the goods are required
Act also uses the term gender preference. The term should be interpreted and the buyer is relying on the seller’s skill or judgment to select or
consistently in both statutes unless the statutes have definitions sections furnish suitable goods there is a warranty that the goods shall be fit for
that give clearly different meanings. such purpose.”
After conducting research on how to analyze statutory law, Cecil applies
4. Last Antecedent Rule. Qualifying words and phrases apply to the words the steps recommended in this chapter.
or phrase immediately preceding and do not extend to other, more remote Step 1 Determine whether the statute applies. When reviewing the
words or phrases. statutes, Cecil notes that section 29-2-102 provides that the Commercial
Code Sales Act applies only to the sale of goods. If this transaction is not
For example: A DWI statute provides “‘driver’ means every person who a sale of goods, the statute does not apply and the warranty provisions of
drives or is in actual physical control of a motor vehicle upon a highway the act do not apply.
...” The phrase “upon a highway” modifies the term “motor vehicle.” It Section 29-2-105 defines goods as “all things which are movable ...” This
does not modify the term “drives.” definition is of no help. Is a permanent hair treatment movable within the
meaning of the act? In this case, both goods and services are involved.
The service portion, the beautician applying the permanent, does not The act defines merchant as a person who deals in goods of the kind sold.
appear to be goods within the meaning of the statute but is clearly a If the beauty salon and the beautician routinely sell perm kits, then the
service. The invoice, however, shows that Mrs. Jackson paid twenty seller is a “merchant.”
dollars for a perm kit. The perm kit is clearly goods under the act. The Here, the salon routinely sells perm kits when it charges for them as a part
transaction is a mixed transaction involving both services and goods. of a permanent. Therefore, the seller is a “merchant.”
Cecil’s review of the statute indicates that there is no section that After performing this step, Cecil can reach a conclusion on whether the
addresses mixed transactions. statute applies and whether Mrs. Jackson would have a cause of action for
Since the statute does not give guidance concerning mixed transactions, breach of warranty under section 29-2-314. Assuming that the transaction
Cecil must refer to case law. In the case of Elie v. American Saloon, the is a sale of goods, which is doubtful in light of the conclusion reached
court provides guidance for determining when a mixed transaction is a in step 1, it appears that the statute would apply: there would be a
sale of goods covered by the Commercial Code Sales Act. contract for the sale of goods by a merchant of those goods.
The court adopted what it called the predominant factor test. Under this Under section 29-2-314, the seller warrants that the goods are
test, the nature of the contract will be determined by what predominates. merchantable, which is defined in case law as meaning “fit for the
If the transaction involves primarily a service, it is a service contract and ordinary purposes for which such goods are used.” In Mrs. Jackson’s case,
is not covered by the act. If the transaction involves primarily the sale of the goods obviously were not fit for their ordinary purpose. Her hair
goods, it is a sale of goods and is covered by the act. In its discussion of changed color and broke. If section 29-2-314 applies, Mrs.
the application of the test, the court stated that the bill or receipt should be Jackson clearly has a claim for breach of warranty. Remember, however,
examined. If the largest portion of the bill applies to the cost of the goods the conclusion in step 1 was that section 29-2-314 does not apply because
sold, the transaction is predominately a sale of goods and the act applies. the transaction is probably a sale of a service not goods.
If the majority of the bill applies to the services provided, the transaction B. Will Revocation Statute
is a service transaction, not covered by the act. Section 50-5 of a state statute is the applicable statute in this example. It
Applying this test to Mrs. Jackson’s facts, the bill clearly indicates that the provides as follows:
largest portion of the transaction applied to the service of giving the No will in writing, nor any part thereof, shall be revoked unless, with the
permanent. Twenty dollars was charged for the perm kit (goods) and intent to revoke, the testator:
eighty dollars for giving the permanent (services). Cecil concludes that a. executes a subsequent will or codicil,
under the predominant factor test, the service predominates the b. prepares a writing declaring an intention to revoke the same which is
transaction, and it appears to be a service contract not covered by the act. executed in a manner in which a will is required to be executed, or
After performing step 1, Cecil concludes that there is no warranty relief c. the testator or some person in the testator’s presence and by the
available against Beauty Care beauty salon because the Commercial Code testator’s direction ... cancels, or destroys the same, with the intent to
Sales Act does not apply to the transaction. revoke.
Cecil’s conclusion is based on his interpretation of the law. Since he is The following facts apply in this example. Before Mary Glenn died, she
new at statutory analysis, he knows his analysis could be wrong. To be on directed her brother, Tom Glenn, to cancel her will. Because she was too
the safe side, he continues his analysis in order to provide his supervisory weak to write, she directed her brother to cancel the will by writing across
attorney a complete review of the law. He proceeds to steps 2 and 3. the first page,
Step 2 Analyze the statute. If the act does apply, that is, if it were “I hereby revoke this will. It is my intent that this will be no longer valid.
concluded that the transaction was a sale of goods rather than a service, I direct my brother to do this because I can no longer write.” Tom took the
which of the warranty remedies, if any, would be available to Mrs. will to Mary’s kitchen, a room adjacent to her bedroom, and wrote what
Jackson? Cecil carefully reads the statute and determines that the three Mary had requested on the first page of the will and added, “This was
warranties included in sections 29-2-313, 29-2-314, and 29-2-315 are the done at the request of Mary Glenn by me, Tom Glenn.”
only possible warranties available in the act. Which of these would apply? Was the will validly revoked under the terms of the statute?
Clearly, sections 29-2-313 and 29-2-315 would not apply. Section 29-2- Step 1 Determine whether the statute applies. The statute appears on its
313 requires some affirmation or promise by the seller relating to the face to apply to this fact situation. The statute governs will revocations
quality of the goods. and this is an attempted revocation.
In Mrs. Jackson’s case, there was no statement by the beautician, either Step 2 Analyze the statute. After a careful reading, the statute can be
oral or written, concerning the quality of the permanent. Section 29-2-315 analyzed and the required elements identified. The statute provides three
also would not apply, as Mrs. Jackson did not communicate any particular ways in which a written will can be revoked:
purpose for which the goods were required. Also, there are no facts to 1. by a subsequent will or codicil executed by the testator, with the intent
indicate that she in any way relied on the beautician’s expertise in to revoke
selecting the permanent, although it could be argued that this is implicit in 2. by a writing intended to revoke the will, executed in the same manner
getting a permanent. as a will is required to be executed
To be on the safe side, Cecil reviews the courts’ interpretation of the term 3. by the testator or some person in the testator’s presence and by the
particular purpose. The case law indicates that the term refers to a unique testator’s direction canceling or destroying the will with the intent to
and specific purpose for which the goods are required that is clearly and revoke
specifically communicated by the buyer to the seller. The facts in Mrs.
Jackson’s case show there was no specific communication. Step 3 Apply the statute to the legal problem or issue. When the statute is
Cecil’s last hope is section 29-2-314. He reads the statute and identifies applied to the fact situation, it appears that subsections (a) and (b) clearly
the following as the elements of an implied warranty of merchantability: do not apply. Subsection
1. The transaction must be a contract for the sale of goods. (a) requires a subsequent will or codicil, neither of which is present in
2. The seller must be a merchant of those goods. Mary Glenn’s case. Subsection (b) requires a writing revoking the will,
On the face of it, it appears that this statute would apply. Cecil proceeds to executed in a manner in which a will must be executed. Assume that
step 3. research reveals that the state statutes require a will to be witnessed by
Step 3 Apply the statute to the legal problem or issue. Cecil applies the two witnesses. There were no witnesses in this case. The requirements of
statute to the problem through the use of a chart. this subsection are not met because the writing by Tom was not executed
Statutory Elements in the required manner.
1. Contract for sale of goods If there is a valid revocation under the statute, it can only have occurred
2. Seller is a merchant of those goods under the cancellation provisions of subsection (c). For a revocation to
Facts of Client’s Case occur under subsection (c), the following elements must be met:
Assuming that the predominant factor test did lead to the conclusion that 1. The testator or some person
this transaction is a sale of goods, not services, then this is a sale-of-goods a. in the presence of the testator, and
transaction. b. by the testator’s direction
2. Cancels or destroys the will
3. With the intent to revoke.
In this example, the required elements of the statute will be applied to the These sources should not be used if the meaning of the statute is clear on
facts of the case in a different way than in the previous example. In the its face.
previous example, a chart was used. Here, a narrative summary is used. The ease with which you are able to analyze a statute increases with
1. Testator or some person. The requirements of this element are met. The practice.
testator did not cancel the will but “some person,” her brother, did. The more you read and analyze statutes, the easier it becomes. The
a. In the presence of the testator. It is questionable whether this element is exercises at the end of this chapter may prove helpful in this regard.
met. Does “in the testator’s presence” mean actual physical presence in
the same room? If the person canceling the will is in an adjacent room, is Exercises
that “in the testator’s presence?” If the statute does not define the term Additional assignments are located on the Online Companion and the
presence, case law must be consulted. If the courts have not interpreted Student CD-ROM accompanying the text
the term, the legislative history of the act may shed some light. ASSIGNMENT 1
b. By the direction of the testator. This element is met. Mary Glenn Describe in detail the components of a statute.
directed her brother to revoke the will. ASSIGNMENT 2
2. Cancels or destroys the will. This element appears to be met. The Look up a statute in your state and identify its component parts. You may
language clearly revokes the will and appears on the will itself. The find a statute on the Web through http://www.findlaw.com/ or look one up
statute does not require that the revocation language appear on a specific at a local law or public library (most public libraries have the state
page of the will such as the signature page. Case law should be consulted statutes).
to see whether the courts have established where the revocation language In the following exercises, a statute is presented, followed by questions
must be placed. concerning the statute.
3. With the intent to revoke. This element is met. The intent to revoke is ASSIGNMENT 3
clearly indicated in the language Mary Glenn chose. Statute: Criminal code section 20-4-102, Arson.
The conclusion is that the statute applies and the will has been revoked if A person who knowingly sets fire to, burns, causes to be burned, or by use
the presence requirement is met and if cancellation language is effective of any explosive, damages or destroys, or causes to be damaged or
when placed on the first page of a will. By following the three destroyed, any property of another without his consent commits arson.
recommended steps, subsections (a) and (b) of the statute were eliminated Questions
from consideration, and the subsection that could apply was identified A. What are the required elements of arson?
(subsection (c)). The application analysis helps focus the attention on B. Tom breaks into a neighbor’s barn, sets off twenty sticks of dynamite,
what research is needed to reach a final conclusion. Note that the final and blows up the barn. The barn does not catch fire but it is blown to
conclusion cannot be reached in step 3 until research is conducted to small bits and completely destroyed.
determine what “in the testator’s presence” requires under the statute. Has Tom committed arson? Why?
C. Lois breaks into a house intending to steal cash and jewelry. She lights
Summary a match to locate a safe. She drops the match; it falls in a trashcan and the
An expanding source of law in the United States is the law passed by house catches fire. Has Lois committed arson? Why?
legislative bodies. D. Dai’s Diner is losing money and about to go out of business. Dai and
This body of law, commonly called statutory law, assumes a greater role Steve own the building where the diner is located. One evening Dai sets
because many matters once covered by case law are now addressed by the building on fire in order to collect the insurance on the building. Has
state and federal legislative bodies. As a result of this growth, paralegals Dai committed arson? Why?
are more frequently engaged in analyzing legal problems and issues
governed by statutory law, which means they must have the ability to
conduct statutory analysis.
Statutory analysis is the process of determining whether a statute applies,
how it applies, and the effect of that application. A prerequisite to
analyzing a statute is a familiarity with the parts of a statute. While these
may vary in different jurisdictions, it is helpful to have an understanding
of the basic framework commonly used.
The most efficient way to address a problem involving a statute is to have
an approach to statutory analysis. This chapter presents a three-step
approach.
The first step is the determination of whether the statute governs the
situation in any way. This step involves locating all the possible statutes
that may apply, then deciding which ones apply to the facts raised by the
legal problem. If the problem involves the sale of land, for example,
statutes governing the sale of goods do not apply.
The second step is to read the statute carefully and identify what is
required for the statute to apply. These requirements are usually referred
to as the elements of the statute. A careful analysis may require several
readings of the statute and reference to interpretative sources, such as
court opinions, or secondary sources, such as treatises and law review
articles.
The third step is the application of the elements to the facts of the legal
problem.
This step involves matching the elements of the statute to the facts of the
case and determining how the statute applies.
When engaging in statutory analysis, there are considerations and
guidelines that should be kept in mind. Most of these come into play
when the meaning of a statute is unclear or ambiguous. In addition to
court opinions, which give guidance to the interpretation of a statute,
legislative history and canons of construction may be consulted.
Legislative history is composed of all the legislative material and records
concerning a statute before it became law. Canons of construction are
guidelines developed by courts for use in interpreting ambiguous statutes.