In Praise of Statutes (and Statues)

Today is the first day of winter quarter (or Winter Quarter, depending on how you feel about it) here at the University of Washington School of Law. For my 1L Legal Analysis, Research, and Writing class, that means we turn from common law (which we covered in the fall) to statutes. I really like this quarter, and I start the class with a general lecture on how to think about statutes. I figured some of that might be interesting to y’all out there on the interwebs, so here goes….

I think it’s easy to underestimate the difference between (1) reading and understanding case law and (2) reading and understanding statutes, especially for first-year students. During the entire fall quarter, my class discusses common law doctrines, reads cases, argues about holdings, makes predictions based on dicta, etc. When reading a case, determining the holding is partially based on what the court says, but much of it is based on the reader’s own reading between the lines. Sure, the court said any family member could recover, but that case involved a biological father-daughter relationship. Same result for a great-grandmother? What if they lived together? What about a step-father? What if they are estranged? You know the game. Testing a holding—narrowing it down to the relevant facts—is a huge part of the first quarter. And it takes a long time for many students to get into that mode of thinking.

And then—record scratch—we introduce statutes. The familiar “Okay, but what does that really mean?” method of analysis doesn’t quite work on statutes. Students comfortable divining and then applying abstract principles from a series of cases are in for a rude awakening when attempting to apply that divination skill to a statute. “Yes, the statute says ‘prevailing party,’ but what that really means is….” Nope. It means “prevailing party.” Words matter for statutes in a way they don’t for cases.

I like to illustrate the point with two different statues (yes, statues, not statutes). Here’s a familiar one:

Fontaine de la Justice via Wikimedia Commons

There’s Justice, blindfolded, holding the scales in her hand. The scales, of course, signify how she balances the issues or arguments to reach her decision. Most students have seen this image or something like it.

And then there’s this:

Tim Evanson via Flickr (CC BY-SA 2.0)

This might be a new one for you. It’s certainly new to most of my students. The picture (from Tim Evanson on Flickr) is of a statue outside the Albert V. Bryan United States Courthouse in Alexandria, Virginia. There’s a similar (same?) statue in the lobby of the Daniel Patrick Moynihan Courthouse in Manhattan, which is where I first saw it. Anyway, I love this statue, because Justice isn’t using a balance. Instead, she’s weighing the arguments herself; her own sense of weight determines the outcome—what is just. (I also like that she’s balancing on one foot, which seems a bit showy, but who am I to criticize.)

This statue—Justice Delayed, Justice Denied by Raymond Kaskey—depicts a profoundly different conception of justice (and Justice) when compared to the more traditional, balance-holding depiction. I use this distinction to explain the difference between the common law judge of fall quarter and the statute-applying judge of winter quarter.

The common law judge is depicted by Kaskey’s Justice, which holds the scales in separate hands. In this depiction, Justice herself determines which side is heavier. That determination depends on Justice’s own somewhat subjective sense of what “feels” just in a particular situation. Of course, Justice can’t just do whatever she wants; but she can distinguish and narrow previous pronouncements if, when a new dispute arises, the new dispute brings up certain issues that she didn’t fully consider before.

The traditional Justice holding the balance is, at least in my telling, the statute-applying Justice. Consider the balance. This machine, which Justice holds in her left hand, does all the work of determining which side prevails. Holding the balance by the center bar, Justice would not even be able to feel which side pulled down more heavily; the weight down the bar would remain constant. (Pretend I inserted a schematic here with vectors and whatnot.) In fact, Justice herself is doing quite little work. All the important work is done by whoever built and calibrated the scales. It doesn’t even make much sense for Justice to be blindfolded in this depiction. Once she puts the arguments on the scales, the balance provides the result. There’s nothing for her to do other than to make sure the machine is working properly. She can’t change the result.

And that’s my segue into statutes and winter quarter. Obviously, there is work for judges to do in the interpretation and application of statutes. But the key point I press again and again is that, unlike common law cases, the legislature has provided a “balance” when it enacts a statute. The court’s job—and the students’ job in predicting what a court might do—is therefore to ensure that the balance is faithfully and meticulously used to reach the proper result. That can be a difficult adjustment for students to make. But I hope the two statues about statutes get them started on the right foot.


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