Thinking Like a Lawyer About Legislation: Implementing Legislative Decision Theory Through Improved Citation

Abstract

The Texas Supreme Court in the late 1990s, in two significant cases, arguably interpreted statutes to achieve a result directly opposite to the Legislature’s decision. Why do lawyers and judges struggle when reading and applying legislation, especially when using enactment history? Under Professor Victoria Nourse’s legislative decision theory, the struggle is attributable to the fact that lawyers do not consider the legislature’s institutional rules and procedures to find the proper text to interpret in light of the available legislative evidence. Wider implementation of her theory is hampered by current legal citation practices that mistreat legislative evidence and legislation itself and inhibit legal reasoning when using these authorities. The Bluebook and other citation manuals are designed primarily to enable sophisticated reasoning with case law. This bias is demonstrated by the ways in which the Bluebook has radically altered how lawyers and judges think about Federal law with little notice. Legislative decision theory shows show how accepted legislative procedures indicate the Texas Supreme Court reached the opposite result decided by the Legislature in each case. Because current legal citation practice did not provide a method for citing the proper legislative action, the court was unable to read the pertinent statutes in light of the relevant legislative evidence. Using Texas as a case study, a detailed review of the legislative process and the legislative evidence it produces demonstrates the need for comprehensive and workable citation practices for legislation, which should be met in each state by a specialized citation manual, such as a proposed Orange-book, to prevent recurring, substantial errors made by lawyers and courts in interpreting statutes.