Thought Provoking Law Quote: What is the Statutory Interpretation Process?

The quote below from respected legal commentators on procedure is somewhat disheartening to those who seek absolute predictability and objectivity in the legal system.  As we know, those qualities run only so deep.

“Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”

-          Professors Hart and Sacks writing in The Legal Process.

In the case below, the Rule of the Last Antecedent may resolve the dispute, "if the Supreme Court decides to apply it."  Or the court may apply the Series Qualifier Cannon, which requires exactly the opposite interpretation from the Rule of the Last Antecedent. Or perhaps after failing to find clarity in the plain meaning of the text, the legislative intent or the public policy, the Court will just say, "Oh, the hell with it!" and apply the Rule of Lenity.  Or, maybe they won't. 

What is the difference between a statue and a statute?

Street Level Legal Interpretation

Criminal law is statutory.  Sometimes circumstances requires street-level analysis and legal interpretation by the hard working public servants entrusted with the first line enforcement of these laws.  Thorny gray areas become evident, as this video suggests:

Good Samaritan Statute; Interpreted, Amended

The California Supreme Court has essentially written the script of your lecture on Good Samaritan Laws:

Under well-established common law principles, a person has no duty to come to the aid of another. If, however, a person elects to come to someone’s aid, he or she has a duty to exercise due care. Thus, a “Good Samaritan” who attempts to help someone might be liable if he or she does not exercise due care and ends up causing harm. The Legislature has enacted certain statutory exceptions to this due care requirement. (citations omitted).

However, the next line of your lecture may differ from the court's ruling in Van Horn v. Torti quoted above. Normally, as long as the Good Samaritan acts in "good faith," a Good Samaritan statute will insulate her from liability for simple negligence.  However, when dealing with state statutes, generalizations can be misleading.

On Halloween night on 2005, Lisa Torti, Alexandra Van Horn and other friends spent their time smoking pot and drinking. Around 1;30 AM, they headed home. Van Horn was a passenger in a car that was travelling ahead of the car in which Torti was a passenger. The lead car crashed into a pole. Torti testified that she saw smoke from the car and feared it would "blow up." her testimony was contradicted by witnesses. Nevertheless, motivated by a desire to help her friend, Torti pulled Van Horn from the car. the unfortunate result  of that action was that van Horn's vertebral injury was exacerbated resulting in paraplegia.

Van Horn sued the ironically named Torti. Torti claimed the protection of the California Good Samaritan statute, which reads as follows: 

 “No person who in good faith, and not for compensation,renders emergency care at the scene of an emergency shall be liable for any civildamages resulting from any act or omission. The scene of an emergency shall notinclude emergency departments and other places where medical care is usuallyoffered.”

The Supreme Court ruling?

We hold that the Legislature intended for section 1799.102 to immunize from liability for civil damages any person who renders emergency medical care. Torti does not contend that she rendered emergency medical care and she may not, therefore, claim the immunity in section 1799.102.

So, there is the lesson: The Common Law says rescuers are liable for negligence.  The legislatures step in to provide immunity.  But, if you don't fall squarely within the statute as interpreted by the court, then you fall back into the Common Law rule.

The final lesson may be that when a court interprets a statute based on the presumed intent of the legislature, the legislature is free to amend the law if the collective sense is that the court got it wrong.  That is just what the California legislature did with their Good Samaritan Statute, which now protects those "render[ing] emergency medical or nonmedical care." 

Is that the best decision, as a policy matter? Read here.

Here's a well-intentioned Good Samaritan making a situation worse:

Good Samaritan Song:



The unfortunate Seinfeld episode: What a Good Samaritan law is not.

Half as Much: Musical Analogy of Interpreting a Statute

In prior posts (see list below) I have suggested the process of musical interpretation is an apt analogy for the process of legal interpretation.  A musical composition is created and contains principles of melody, rhythm, tempo, and lyrics.  These principles represent the law of the song much the way the words and intent expressed by a legislature are the law of the statute.  But if the legislature is the composer, it can never be the performer.  That role is left to the courts to interpret the law of the statute - much as musical performers interpret the law of the musical composition in their own performances.

Below are several interpretations of the song Half as Much. The song was written by Curley Williams in 1951 and became a huge hit for country star Hank Williams, Sr. in 1952.  That same year it was recorded by Rosemary Clooney with an entirely different interpretation that was a hit with an entirely different audience. When judges consider public policy effects of their interpretations, one could say they are interpreting the law to appeal to different audiences. The versions recorded by Ray Charles and Sharon Redd are more different still. In law, fidelity to precedent is desirable, but strict adherence in all circumstances is not. Roscoe Pound's famously stated principle that the law must be stable but must not stand still is achieved through the talented interpretations of judicial performers.

Other posts incorporating music analogies:  
Judicial Interpretation Illustrated, 
This Land is Your Land: Judicial Interpretation Illustrated #2,
My Favorite Things: Judicial Interpretation Illustrated #3, 
Statutory Interpretation Illustrated,
Over the Rainbow.

Over the Rainbow - Statutory Interpretation

An earlier post suggested making analogy to popular music (First Cut is the Deepest) to illustrate the process and results of statutory interpretation.  Ken Schneyer has made the excellent suggestion to use the song Over the Rainbow as a better example.  

Over the Rainbow was composed by Harold Arlen with lyrics by E.Y Yarburg for the movie, The Wizard of Oz. Although composed by Arlen and Yarburg, they were not the song’s performers.  Like a legislature which must leave interpretation of its statutes up to the courts, the composers left interpretation of their creation to others. 

Judy Garland, of course, performed the song in the movie. In compiling the videos below, I was struck by the noticeable differences between her movie performance from1939 and a subsequent recording in 1955.  Garland’s voice and presence are more mature and confident in the later recording.  It is the same song, same melody, lyrics and tempo – it is even the same performer, but the interpretation is still different.  Analogy can be made to a single court’s interpretation of a statute over time. Eva Cassidy’s 1992 performance “modernizes” the song adding modern pop and jazz elements to the performance.  Katherine McPhee’s American Idol performance is interesting because she returns to the text of the original composition to perform the rarely heard opening lines of the composition which were cut from the movie performance and nearly lost to the public mind – all despite the fact that other verses of the song had to be left out to accommodate the limited TV time slot for the performance.  She had to make choices about what was important to be included in the performance.  Iz Kamakawiwo’ole’s delightful interpretation has been very popular even though his fidelity to the song’s lyrics is somewhat unpredictable. However, I found it interesting that in the Glee performance, the directors chose his interpretation as the “precedent” to follow for the arrangement of the performance, but maintaining truer fidelity to the original lyrics.  It is an interpretation that both returns to the text and incorporates innovative precedential interpretation. 

So is it also with the law. Judges “perform” the legislature’s composition by giving it voice. Legislatures know that when they compose a statute, the interpretation of performance is out of their hands and in the hands of the courts.

Other posts incorporating music analogies:  Judicial Interpretation Illustrated, This Land is Your Land: Judicial Interpretation Illustrated #2, My Favorite Things: Judicial Interpretation Illustrated #3, Statutory Interpretation Illustrated.

Featured Case: Pennsylvania v. Noel: Is a Horse a "Vehicle?"

Here are the facts from the majority opinion of the Pennsylvania Supreme Court in Commonwealth of Pennsylvania v. Noel:

On April 7, 2002, the Pennsylvania State Police stopped Appellees Richard Carroll Noel and Keith Douglas Travis while they were riding horses on a public highway in Springfield Township, Mercer County because they appeared to be intoxicated. Appellees were subsequently charged with Driving While Under the Influence of Alcohol ("DUI").

The relevant part of the Pennsylvania Motor Vehicle Code states as follows:

Every person riding an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this part, except those provisions of this part which by their very nature can have no application or where specifically provided otherwise.

The defense argued that "by their very nature" the DUI provisions did not apply to horseback riders.  The trial court stated that it could not clearly determine what provisions "by their very nature" did not apply to horseback riders and, therefore, the statute is unconstitutionally vague in violation of the due process clause.

I like this case for class for two reasons. First, it is a "two-fer."  The case is a natural to illustrate two legal principles. I use it to explain the requirement under substantive due process that a criminal statute must give unambiguous "fair warning" of the conduct that has been criminalized. I also use it to explain the need for statutory interpretation by courts.  As is often the case, a statute which seems reasonably clearly written when read in a vaccuum, becomes noticeably ambiguous when applied to a challenging set of facts. Therefore, the court's interpretation is necessary.

Second, there is an witty dissent in the case written by Mr. Justice Eakin. After opening his opinion by quoting the theme song to Mr. Ed, a 1960's sitcom about a talking horse, Justice Eakin summarizes his rationale by composing it to the Mr. Ed theme. (Here is another link to the dissent.)

Here is a short clip to illustrate to your students the premise of the show, Mr. Ed:


Here is the Mr. Ed theme song:
And here is the excerpt from Mr. Justice Eakin's dissent set to music:

My Favorite Things: Judicial Interpretation Illustrated #3

In an enlightening essay, Professor Desmond Manderson suggests that the process of statutory interpretation by courts may be illustrated by considering the song My Favorite Things as composed by Rodgers and Hammerstein compared to the performance by John Coltrane. I have added some additional examples below.

See also earlier posts: Judicial Interpretation Illustrated, Judicial Interpretation Illustrated #2, and Statutory Interpretation

Statutory Interpretation Illustrated

I frequently use music in class to illustrate a legal principle.  My theory is generally that students understand how music "works." Therefore, music can be used as a scaffold to assist understanding of more complex principles.

I assign the videos below, all of various versions of the song, The First Cut is the Deepest, to illustrate the concept of statutory interpretation. Start with the performance of the composer/lyricist, Cat Stevens (now Yusuf Islam).  He wrote "the law" as expressed in the melody, lyrics, tempo, arrangement and overall feeling of his performance. Next, PP Arnold interprets the law by adding an R&B tempo and arrangement. Linda Ronstadt’s version tracks close to Arnold’s precedent, but adds energy and richness. In the chorus of Ronstadt’s version, there is a slight but noticeable change in the lyrics of the chorus, transferring focus from the “other” in the story to the “self” and, thereby, altering the meaning. Rod Stewart’s performance slows the tempo, stylistically shifting the feel of the song to more of an acoustic rock ballad and makes two notable textual and substantive changes.  In the third line of the first verse Stewart changes the word “got” to “have.” The word change does not affect the meaning of the sentence and is arguably a grammatical improvement.  However, the change destroys the three-line rhyming scheme of the verse as composed and falls more clumsily on the ear of the audience.  Even more notably, Stewart truncates the chorus, bringing it to a close after only two lines of the original three-line rhyming scheme and abandoning the reiteration of the “first cut” reference.  Sheryl Crow’s popular version matches Stewart’s version, embracing and solidifying in audience memory both the clumsiness of the first verse and the truncated, unfinished sounding chorus over the composer’s own aesthetic.  Crow has confirmed in interviews that she did not return to the original text in arranging her version because she knew Stewart’s version as precedent and “heard” the song principally in that way. Ultimately, she recorded the song as it sounded right to her, regardless of the composer’s intent.  Finally, Papa Dee’s version bears the least resemblance to the Cat Steven’s original despite similarity in melody and lyrics.  Each interpretation of the original (the statute) results in different meaning while retaining some measure of fidelity to the original composition. 

A tip of the hat should go to Ken Schneyer from Johnson and Wales who has suggested that a better example may be found by using a song that was composed but never performed by the composer.  (More like a legislature which must leave "performance" of the staute to the courts.)  He has suggested using Over the Rainbow.  I think that is also an excellent example.

Judicial Interpretation Illustrated

I favor using popular music to illustrate legal principles.

Prof. David Skover of Seattle University Law School has been quoted as saying that "all law is interpretation."  I am in complete agreement.  The following exercise illustrates this principle.

Folk music is an apt analogy for Common Law principles. Consider the legal principle such as, "a person who is negligent is liable for the damages that proximately result." Like a folk song, this principle is well known and accepted, but its precise origin may not easily be determined. Also like a folk song, the principle has been repeated and passed down through the oral tradition. And, also like a folk song, each "performance" of the legal principle (judicial decision) is the result of the performer's own particular interpretation of the song. The ultimate performance of a folk song depends on a number of factors including the versions of the song with which the performer is familar, the performer's own talents and abilities, and the effect that the performer wishes to create for the audience.  I would argue that a judicial decision is like a folk song performance. It  is a product of, among other considerations, the judge's understanding of the legal principle, the judge's talents in seeing the implications of the ruling for society, the judge's ideology regarding the proper role of judges and the impact that the judge intends the ruling to have on society (the audience).

Consider the three following performances of the old Irish folksong, Whiskey in the Jar.  They all come from a common melody and common lyrics - constituting "the law" of the song, if you will. But the performances are significantly different in tone, feeling and impact on the audience. So it is also with the law.

When I use these videos in class, I play about a minute of each for comparison purposes.








This one is extra just for fun. Who can resist Ireland's self-professed #1 Elvis impersonator?

What a "Good Samaritan Law" is Not

Often, legal education involves busting myths and folklore that has crept into consciousness as "knowledge" through various popular culture mediums. Famously, the last Seinfeld episode saw the protagonists prosecuted for failing to help someone in danger.  The law was referred to as a "Good Samaritan Law."  Judging from the way the local sheriff character drawls out that title, it seems as if the Seinfeld writers believed that they cleverly thought that up on their own. Of course, there are "Good Samaritan Laws" that are statutes designed to address the common law principle that one who seeks to provide assistance to another, has a responsibility to do so with due care or risk liability for negligent rescue. The Good Samaritan statutes, though differing somewhat from state to state, have the principal purpose of insulating the would be rescuer from liability for regular negligence as long as the rescue attempt was undertaken in good faith. Individual state statutes should be consulted for specific requirements.

Because the protection is stautory, would be rescuers must fall within the statutory definition to gain the Good Samaritan protection. In Van Horn v. Watson, the California Supreme Court considered whether a woman who pulled a co-worker from a car wreck was protected by the provisions of the California Good Samaritan statute. The statute protects rescuers who are providing "emergency care." The court determined that the statutory language "emergency care" was more properly read as "emergency medical care." The rescuer in this case pulled the plaintiff from a car wreck fearing a fire. The court determined that act to be outside of the definition of "medical" care and therefore, the defendant could not avail herself of the statutory protection.

Seinfeld and friends committing the crime of "criminal indifference."



A suprisingly uninformative national news media report of the Van Horn v. Watson case from California:

Return of The Pink Panther - Interpretation of Statutes

This video clip from The Return of The Pink Panther shows Inspector Clousseau engaged in a battle of wits with a beggar over the interpretation of statutes. Law enforcement involves discretion; first at the street level, then later at the prosecutorial level.