Reading Statutes and Rules

We've been spending a good while talking about how to read cases, and that makes sense because reading cases is going to be the bulk of your work in law school, at least, in particular, the first year of law school. Your textbooks that you use in law school are called casebooks for a good reason. They're full of cases, but cases are not the only thing you're going to read. In a number of classes, you're also going to be asked to read something else, statutes.

Statutes and Rules

These are pieces of legislation that have been enacted by legislatures. Or rules, things like the Federal Rules of Civil Procedure or the Federal Rules of Criminal Procedure. These are rules that apply in courts that are typically written by courts, but they basically function in the same way as statutes.

There's other things, like there's regulatory rules that are passed by administrative agencies. Again, they function like statutes with some caveats that are not worth getting into here.

Depending on the class, you might have more or less of these. In a torts class, you might not have much in the way of statutory reading at all. In contracts class, you might have a little in that you might read some provisions of the Uniform Commercial Code, but most of your reading is going to be cases. A lot of the cases don't involve provisions of the Uniform Commercial Code at all, but in criminal law class, ostensibly, almost every case involves some criminal statute, and so you might have a statute you're presented with.

Many criminal law classes also assign supplemental reading where you read the text of the Model Penal Code, which is, we talked about it a little bit in Jewell. It's a draft set of criminal statutes that were written in order to influence the law. Many criminal law professors teach those alongside the cases you're reading. If you're taking civil procedure, you're going to read a bunch of cases, but you're also going to be reading the federal rules of civil procedure and that's going to be a big part of what you're learning and what you're tested on.

I want to impress upon you that reading these additional statutes, rules, et cetera, when they're assigned is really quite important, and everything that I've said about the importance of close and attentive reading when we're talking about cases, I think applies double, triple, quadruple to reading statutes and rules. The thing that's interesting, though, is that many law students don't really read the statutes or rules. They see it assigned in their reading and they spend all their time on their cases because they think, "Well, this is really just going to focus on the cases and the rules are an afterthought."

They just skim them. It's the thing that's treated as least important. I think part of that is because we have so many classes where rules and statutes don't play a big role, that when you pivot into a class where the statute is really, really important, it can be somewhat hard to adjust. My first year of law school, I took tax as my elective class, and tax is a heavily statutory class. It took me about half the semester to figure out, "Gosh, I really do need to be reading the statutes in the statutory supplement more carefully because it turns out they're actually doing a lot of the work in these cases." I thought I could just read these cases and figure everything out.

How to Read a Statute or Rule

Then, in terms of how you read them, you'll read them a little differently than you read a case in a casebook. They're going to be typically shorter. They might be harder to read. They certainly have often not been written in a way that makes them easy or fun to read. There's a reason that we often call statutes part of a code because they really are like a computer code, almost. Which is that when you're first reading them, read them the way a robot would. Like look at every single word, look at how every single word relates to every other word, and just try to figure it out.

Try to figure out how everything relates, diagram it if you have to. Many statutes are one long sentence, but the sentence is broken up into multiple paragraphs with parts and subparts and sub-sub-subparts. To really understand how the statute works, you're going to have to really break it apart. You notice that the statute has a sentence. Then it says this defense will be applicable if. Then it says A, B, C, or D. The fact that it says, "or," that's really important. You need to read that carefully because it means that there's four different ways you could, as a defendant, establish the defense is applicable.

If a statute lists six things and says, "and," that's a pretty significant difference. It means that all of those things need to be present. You really want to pretend you're almost like a computer program just executing the code. What that means is anytime you read it through and you don't quite understand how it works grammatically, "I don't understand how these two clauses work," try a little harder to make sure you at least have some working understanding.

Sometimes you'll encounter a statute that just doesn't make any sense. There's plenty of those, but you at least need to make an effort. If you encounter a phrase or a word that seems to have some meaning and you don't know what it is, look it up and try to figure it out. Look at other parts of the statute, maybe it will be defined elsewhere, but if you don't understand it, there's a good chance you might end up missing something important.

Breaking Down Model Penal Code Provision 2.02[7]

Let's practice this exercise of statutory interpretation a little bit with something we've already encountered. Let's look back at United States versus Jewell, the case that we've been working with. If we look at the Model Penal Code provision 2.02[7], which is laid out in its own paragraph. It's the fifth paragraph in Judge Kennedy's dissent. It's pretty short, so this one won't be super, super tricky. Here's what it says: "When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist".

Now, if you just read this quickly, there's a lot to parse here. It's not totally clear what we're referring to and what some of the antecedents are. You're going to need to sit down with this. You're going to need to read this a few times, and so if you don't just instantly know what this means, don't feel like you're doing anything wrong, because statutory language, we do have to work at a little bit.

Let's try to break it down a little bit. Let's not just let the words pass over our eyes or just let us hear them. Let's actually try to work to understand it. It's got some different clauses.

First clause before the first comma, "When knowledge of the existence of a particular fact is an element of an offense." It starts off with "when."

It's telling us when this rule is going to come into play. It's going to come into play when you have an offense that has an element of knowledge of the existence of a particular fact.

Maybe a simpler way we could say this is, this is going to come into play only in statutes that have some knowledge requirement. A statute that has a knowledge requirement. What that means is one of the elements is proof that you know something. We know when this is going to come up. If it's a statute that involves a different kind of knowledge requirement, so it's a strict liability statute, or it's a statute that has a requirement that you intend something, this statute doesn't really come into play. It's about knowledge statutes.

Next clause, "Such knowledge is established if." What it's saying there is when you have a statute that has a knowledge requirement, it's enough. Basically, you can have knowledge if something. What's the if? If a person is aware of a high probability of its existence. What is the "it" here? Its existence. Well, it tracks back to the first clause, which is a particular fact. Such knowledge is established if a person is aware of a high probability of its existence.

Let's try to apply this before we even get to the final clause to a set of facts. Take the situation in Jewell. You have a statute, let's say, that makes it a crime to knowingly possess a drug. What's the fact that the statute makes an element? The fact that something is a drug. The statute says you have to possess something and you have to know that it's a drug. This Model Penal Code provision is saying, "Such knowledge is established if a person is aware of a high probability of its existence." Applying that would mean a high probability that something is a drug.

Let's imagine some fact patterns where defendant is a courier who's been paid to take a package across the border. He smells the package and it smells a lot like marijuana. Overwhelming, he knows what marijuana smells like. He can see inside and it looks like marijuana, but he's not sure. He's not going to open it because he doesn't want to know for certain. Under the Model Penal Code provision, I think we'd say it's pretty likely that the thing that you're holding is marijuana. You're aware of a high probability of its existence.

Then we also have this final clause, "unless he actually believes that it does not exist." That "unless" is what I call a caveat. It's a restriction on the previous clause. It's saying, "Such knowledge is established. It'll be enough for knowledge under some circumstances unless some other thing is true." That unless he actually believes that it does not exist. What's "it" again? It is the fact, the existence of which this criminal statute requires, going back to the example of a statute requiring knowing possession of drugs.

This wouldn't apply in a situation where you were aware of a high probability that you were carrying drugs, but you also actually believed you weren't carrying drugs. It's a little hard for me to imagine exactly what that hypo looks like, but I can come up with some where you're carrying a package and it smells a lot like drugs and there's a lot of telltale signs that make you think it could be drugs, but the person who asked you to take it said, "No, it's really not, I promise," and it's someone you really trust.

You're just being foolish, maybe, in that situation. Now, we've really broken this provision down and we understand, we think what the moving parts are. There might be some questions we're still left with about how it applies in particular situations, but we get the idea. That's going to be really helpful. It's also going to be really helpful for you to try to see, "Now that I understand this, let me try to apply this."

Which of these opinions, the Judge Kennedy dissent or the majority, seems more consistent with this provision? What kind of work is this provision doing? If you were assigned to read this statuary provision separately in your syllabus or if your syllabus said, "For tomorrow, read Jewell and read Model Penal Code 2.02[7]," you'd really want to make sure you did the work to really dig into the statute. Even if it weren't separately assigned, to be a really successful student, I would encourage you to really dig into any statutory language that comes up in a case you're reading.

Any criminal case you read is likely to have some statutory language, and if you can just take a minute and say, "What's the statute?" Maybe think of this as one of the first things we even think about. What's the statute involved here and how does this dispute relate to the statute? Sometimes it won't clearly relate. The judges are just dealing with doctrines that don't have a firm statutory foundation. Sometimes they really are arguing about specific statutory phrases and you're going to have a much deeper understanding of what's going on in a case if you understand how the legal dispute relates to the statute at issue.