Why It’s Important to Know How to Read Legislation
By Brian Keller
About the Author
Brian Keller is the public policy and voting attorney at Disability Rights Tennessee. He focuses on following legislation and regulation through the process and educating policy makers on the impact proposed legislation would have on Tennesseans with disabilities. He also works with state and county election officials to ensure the election process is accessible for all voters. Brian graduated from Belmont University College of Law in 2016 where he served as president of the health law society. A native of Fayetteville, AR, Brian lives in Nashville with his wife and puppy.
Our hope is that this weekly blog will offer information you want to know, so if you have a question you want answered about employment for people with disabilities or other mysteries of the world of work, please email me at firstname.lastname@example.org.
Tennessee’s legislative session is in full swing in Nashville. As we, in the disability community, keep up with what’s going on at the General Assembly and decide how to advocate for our community, we often have to develop new skills. As advocates we are always learning and adapting to new and changing scenarios.
Understanding how to read legislation is one such skill that is useful whether we’re trying to understand how a new budget may impact our schools and students with disabilities or how a proposed bill may affect our right to work. What our state representatives and state senators decide on Capitol Hill can often affect our daily lives. I want to highlight tips on how to read legislation with the hope that this information may provide you with another tool in your advocacy tool belt.
Keep a close eye on vocabulary
I know, learning vocabulary is probably everyone’s least favorite part of acquiring a new skill. I’m not going to bore you with any law Latin, but there are a couple of key words that will help you wade through complex material. First, you should know the difference between a statute and a bill. A statute is the existing law. A bill is a proposed law. It’s what legislators spend their time debating. A bill becomes a statute when it is passed and signed by the governor and codified. Statutes have the full force of the law, but bills are just ideas to discuss. Second, you should know the difference between mandatory and permissive. We’ll talk more about how to identify these later, but a mandatory element of a law is something that has to happen in order for the law to be satisfied. A permissive element of a law is something that is allowable, but not required. Finally, you should know the difference between conjunctive and disjunctive. These are the trickiest of the bunch. Both words are ways of describing a list. In a conjunctive list, everything in the list must be done before the requirement is satisfied, but in a disjunctive list, any of the things on the list could satisfy the list.
The most important thing you can do when you are reviewing a bill is to read it. I know that sounds simple, but it’s true. Don’t take someone else’s word for it, read the bill yourself. The best way to find a bill you are interested in is to go to the Legislation tab of the Tennessee General Assembly’s website. But don’t stop there. Most bills amend, or change, statutes, which makes it equally as important to read the statute that could be changed by the bill. You can find and read the section of the statute that’s being amended. Read Tennessee’s law, called Tennessee Code Annotated. Once you understand what the law is right now, and what it will be if the bill passes, then you can understand exactly what the bill will do, and how it will impact our community. As you read through statute you’ll find that the Tennessee Code (and the U.S. Code for that matter) is divided into Titles, Chapters, and then Sections. It’s usually helpful to read a few sections of the statute before or after the section that is being amended. Most of the sections in the chapter have to do with each other, so reading some of the other sections in the chapter will give you a pretty good understanding of exactly how the law is set up and will very often impact how you understand the bill.
Lawyer’s tip: Pay attention to definitions. Most chapters of the Tennessee Code start with a definitions section, and those definitions may have a particular meaning in that statute that could differ from the way you usually think of a particular word. Bills may use words that are defined in the statute even if they don’t define the word in the bill itself. It’s almost always worth looking through the definitions section to see if anything shows up in the bill you’re looking at.
Mandatory vs. Permissive
Often in committee hearings, a lawmaker will ask if a bill is mandatory or permissive. Usually a bill is mandatory if it uses the word shall, and it is permissive if it uses the word may. Let’s try an example. A bill is proposed that says, “Everyone shall wear a red shirt on Thursdays.” This bill is mandatory. In order to comply with it, you have to wear a red shirt on Thursday. If you wear a green shirt on Thursday, you’re breaking the law. But if the bill said, “Red shirts may be worn on Thursdays,” then the bill would be permissive. You can wear your red shirt on Thursday but you’re OK if you wear your green shirt, too. Permissive language is great if you want to make it clear that someone is allowed to do something, and mandatory language is great if you want to make sure someone is doing (or not doing) something very specific.
Lawyer’s tip: Be careful with permissive lists. If the bill says, “Red shirts may be worn on Thursdays,” can you wear a red shirt on Monday? The bill isn’t clear, right? It says you can wear them on Thursday, but it doesn’t specify about Monday. It’s possible that the permissive list actually means that you are only allowed to do the things on the list and no others. That’s why a lot of bills will say something like, “Notwithstanding any of the foregoing, nothing in this section shall be construed to limit the ability of an individual to wear red shirts on any day that is not a Thursday.” That’s just a legalese way of saying that you can wear a red shirt whenever you want.
Another tip: Sometimes another section in a chapter makes it clear that the statute is about a very specific situation. So, read around and make sure it’s not just talking about what clothes you can wear to a Vols pep rally.
Conjunctive and disjunctive lists
Here we go. The big kahuna. A lot of bills and statutes have lists. It might be a mandatory list of services that schools have to provide, or it could be a permissive list of employment accommodations that isn’t limited to the items on the list. All lists, though, are either conjunctive or disjunctive. The difference between the two types of lists can be found after the last semicolon in the list. If the list ends with an and,then it’s conjunctive. If it ends with an or, then it’s disjunctive. It’s a one-word difference, but it’s a big one. If the list uses an and,then to meet the requirements of the law, you have to meet every item on the list. If it’s an or, then you only have to meet one.
Let’s try another example. Imagine a bill that says, “All grocery stores shall sell: (1) grapes; (2) apples; and (3) oranges.” What happens if there aren’t any apples left? A grocery store may have to close until it gets more apples because it doesn’t have all three types of fruit. Now imagine the bill says, “Grocery stores shall sell: (1) grapes; (2) apples; or (3) oranges.” Now what if the store runs out of apples? Nothing! So long as the store has one of them, the store can stay open. Notice also that both of those were mandatory items because they used the term shall. How might things change if they were both permissive?
Lawyer’s tip: A lot of laws have a list of situations that would create an exception to the law. Pay attention to whether lists of exceptions are conjunctive or disjunctive. If they are disjunctive, then any of the listed situations could fall into the exception, but if it is conjunctive, then you probably have to have all of the situations to fall into the exception.
As we advocate for a brighter future for Tennesseans with disabilities, we often get outside of our comfort zones. I hope that you will use these tips as you read through any legislation that you are concerned about, that they will help you be a more informed advocate, and help you have meaningful conversations with policy makers about issues that impact you and your family.
My thanks to Brian for explaining some of the intricacies of legislation and for being willing to sit in legislative committee hearings day after day to follow the bills as they move through the process. If you would like to keep track of bills that are of interest to the disability community, Disability Rights Tennessee offers a Policy Watch newsletter, and you can subscribe here. If you have questions, please email me at email@example.com.