Online Companion: Legal Research, Analysis, and Writing



CHAPTER 3 SUMMARY

This chapter focuses on how to research and analyze enacted law and court rules. The term enacted law includes constitutions (governing documents adopted by the people), laws passed by legislative bodies (statutory law), and the rules and regulations adopted by administrative agencies (administrative law). The principles presented in the chapter apply to the research and analysis of constitutions, statutory law, administrative law, and court rules. For the sake of clarity, the chapter discussion and examples focus on statutory law.

An increasingly expanding source of law in the United States is statutory law. This body of law assumes a greater role because many matters once covered by the case law are now addressed by state and federal legislative bodies. As a result of this growth, researchers are more frequently engaged in analyzing legal problems and issues governed by statutory law. This requires the ability to conduct statutory research and analysis.

Statutory research is the process of finding the statutory law that applies to a problem. Most federal and state laws are organized according to topic (codified) and published with annotations. Federal and state codifications share similar features and the process for locating and researching federal and state constitutional, statutory, and administrative law and court rules is essentially the same. The beginning step of all research, including statutory research, is to identify what you are looking for as precisely and narrowly as possible. Most statutes can be located by using the general index, although they also may be found by using the table of contents or the popular name table.

Administrative law is the body of law that results from the rules and regulations of administrative agencies and the court opinions interpreting them. The main research source for locating federal administrative law is the Code of Federal Regulations. Court rules regulate the conduct of matters brought before the court. The federal rules are included in the United States Code Annotated and the United States Code Service, and most state rules are located with the state statutes.

The analysis of enacted law and court rules is the process of determining if a law applies, how it applies, and the effect of that application. For the sake of clarity, the chapter discussion and examples focus on the analysis of laws passed by legislative bodies, or statutory law. A prerequisite to analyzing a law is a familiarity with the parts or components of the law. 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 a process for or 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 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 carefully read the statute 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 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. These sources should not be used if the meaning of the statute is clear on its face.

The ease with which you are able to locate and analyze statutes increases with practice. The more you read and analyze statutes, the easier it becomes. The exercises at the end of this chapter may prove helpful in this regard.

ASSIGNMENTS

ASSIGNMENT 1

Larry is a shareholder in a small corporation. He cannot attend the annual shareholders’ meeting. He wants to know whether he can vote at the meeting by proxy. Locate your state statute that answers Larry’s question.

ASSIGNMENT 2

Refer to either the USCA or the USCS and identify the federal law that requires the disclosure of the annual percentage rate charged for a loan.

ASSIGNMENT 3

Use the USCA. Cite the title and section addresses of the Robert C. Byrd Honors Scholarship Program for colleges/universities.

ASSIGNMENT 4

The client is awaiting sentencing on two federal felony convictions. One conviction is for attempted bank robbery and the other is for assault on a federal officer. Refer to the USCA and determine if there is any limitation on consecutive sentences for these offenses.

ASSIGNMENT 5

Statute: Colorado Revised Statute § 15-11-502 provides:

(1) Except as provided in subsection (2) of this section . . . a will shall be:

(a) In writing;

(b) Signed by the testator, or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and

(c) Signed by at least two individuals either prior to or after the testator’s death, each of whom signed within a reasonable time after he or she witnessed, in the conscious presence of the testator, either the signing of the will as described in paragraph (b) of this subsection (1) or the testator’s acknowledgment of that signature or acknowledgment of the will.

(2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

Questions

A. To what type of wills does this statute apply?

B. What is required for the witnessing of a will?

C. What is required for a holographic will to be valid?

D. Two days before she died, Joan wrote and signed her will. The next day she had two of her neighbors witness it.

1. Is the will a valid will under subsection (1) of the statute? Why or why not? What additional information may be necessary?

2. Is the will a valid will under subsection (2) of the statute? Why or why not? What additional information may be necessary?

ASSIGNMENT 6

Perform assignment 3 using your state statute governing wills.

ASSIGNMENT 7

Statutes:

Criminal Code Section 18-732, Burglary. A person commits burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime against another person or property.

Criminal Code Section 18-760, Robbery. A person who knowingly takes anything of value from the person or presence of another by use of force, threats, or intimidation commits robbery.

Criminal Code Section 18-773, Larceny. Any person who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind, with intent permanently to deprive another person of the use and benefit of property is guilty of larceny.

Questions

A. What are the required elements of each of the statutes?

B. Denise asks Larry to hold her shopping bag for a minute while she makes a phone call. When she looks away, Larry absconds with the shopping bag. Which, if any, of the statutes has Larry violated? Why?

C. Larry attempts to steal a lady’s handbag. He grabs it as he runs by. She refuses to let go and a brief struggle ensues. Finally she lets go of the bag and Larry escapes with the bag. Which, if any, of the statutes has Larry violated? Why?

D. Mike has several drinks and runs up a tab at a local bar. At the end of the evening the bartender asks him to pay up. Mike refuses, threatens the bartender, and leaves. Which, if any, of the statutes has Mike violated? Why?

E. A family lives in an old school bus. Don, searching for something to eat, enters the bus while the family is away. He takes several cans of soup and two loaves of bread and leaves. Which, if any, of the statutes has Don violated? Why?

INTERNET RESOURCES

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