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Journal of Legislation

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Thinking Like A Lawyer About Legislation: Implementing Legislative Decision Theory Through Improved Citation, Hugh L. Brady Jan 2021

Thinking Like A Lawyer About Legislation: Implementing Legislative Decision Theory Through Improved Citation, Hugh L. Brady

Journal of Legislation

The Texas Supreme Court in the late 1990s, in two significant cases, arguably interpreted statutes to achieve a result directly opposite to the Texas Legislature’s decision to adopt a specific text. 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 a statute in light of the available legislative evidence. Wider implementation of her theory is hampered by current legal citation practices …