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Using and Understanding Legislative History in Interpreting Ambiguous Statutes

Courts use a lot of different methods to interpret ambiguous statutes in a given case. One method that can be particularly difficult to navigate, and one I really struggled with until I went back and read the below-cited casebook long after law school, is proper use of legislative history.

To really understand legislative history, and then to use it to marshal part of your legal argument, you need to know the basic process of how a bill becomes a law, and what paper trail that bill leaves behind once passed.

The paper trail left behind has ‘an informal hierarchy of importance.’* That hierarchy is listed below. For reference, ‘1’ has the highest persuasive value (informally) to a judge rendering a decision on how an ambiguous statute is to be interpreted, and ‘6’ has the lowest persuasive value on how an ambiguous statute is to be interpreted.

  1. Conference Committee Reports (from the House, from the Senate, Joint Committees- if the Senate and the House pass bill proposals in different forms)
  2. Subcommittee Reports
  3. Committee Hearings
  4. Draft Versions of the bill
  5. Oral debate on the bill that arises on the House or Senate Floor (debates are recorded in the Congressional Record).
  6. Individual Statements of Legislators, Presidential signing statements

*See Lawson, Gary Federal Administrative Law, 8th Ed. 42-44, (2019).

DISCLAIMER – not legal advice All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.

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Avoiding ethos in a short story (or trying to)

Aristotle’s pillars of argument include ethos, pathos and logos. Ethos has to do with the credibility of the narrator. Basically if you trust what the narrator is saying, if you think the narrator matches certain ideals like honest and integrity, the narrator has a better chance of persuading you.

I thought it would be fun to apply this to fiction. In Pectoral Claspers, a Month 2 of 12 Transient Visitors Very Tiny Tale, I created a narrator with an unclear ethos. At least in this story, what seems to happen when I employed that technique, is that the other two modes of persuasion- pathos and logos- take over. The reader is forced (or at least I hope they are forced, as that is what is intended) to decide how they feel about the story as a whole without reliance on the credibility of the speaker i.e., without ethos.

I take some issue with what I set out to do because of a potentially flawed premise. That is to say, the ethos of a work of fiction cannot entirely detach itself from the writer writing the story, regardless of the credibility/lack of credibility of its fictional narrator(s). Ultimately the actual author’s ethos, whatever it may be, seems inextricably linked to the story. So maybe ethos wasn’t entirely taken over by logos and pathos after all.

Enjoy!

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Reaching for increased readability in fiction writing.

transient visitors logo

I wrote this month’s Transient Visitor’s teaser tale with an eye on the science behind readability. Based on the research by Shane Snow, many great fiction writers have great scores. In my short story, Chute the Virus, I sought similar scores.

My results: very good grade-level readability – about sixth grade. Note that according to the Literacy Project, the average American reads at the 7th to 8th grade reading level. So at a sixth grade (5.9 Flesch-Kinkaid reading ease) I am solid there. Put into perspective of the masters, that is .3 points off from F. Scott Fitzgerald’s The Great Gatsby (5.6). Ernest Hemingway’s Pulitzer prize-winning The Old Man and the Sea is at a grade 4 reading level. Harper Lee’s To Kill a Mockingbird is between a grade 4 and 5 reading level.

To be fair, some masters write at a higher level. For example, George Orwell’s 1984 is an 8.9 on the reading ease scale, making it about a 9th grade reading level (8.9). I know from reading that book, as interesting as it was, that certain parts were hard to get through.

All in all, I’d like to bring reading level down a point or so for future work, but I can live with that in Chute the Virus.

Interestingly, while I am at a good grade-level reading ease, Chute the Virus is still outside of striking distance of the great fiction writers when it comes to readability. Snow defines this score as ‘how fast a piece of writing is to get through.’ This is measured by the Flesch readability score. The Flesch readability score is scored out of 100. The higher the score the better.

How does Chute the Virus compare here? Well, Chute the Virus has a Flesch readability score. Hemingway’s bestselling books score about 95. The bestsellers of Cormac McCarthy, Stephn King, and Tolkien are at least 80. See Snow’s research cited above. These seem like clear numerical gaps between Chute the Virus and the masters. According to Wikipedia, “Polysyllabic words affect this score significantly more than they do the grade-level score.” With that in mind, my guess is that for a better score I could have edited out certain words and replaced them with plainer English. If I revisit this text, words like ‘counterclockwise’, ‘blunderbuss’, ‘undeterred’, ‘lifelessness’ and ‘centrifugal’ would be on the chopping block.

Lesson learned. Maybe next time.

Interestingly, according to Wikipedia, “The average Flesch score for Harry Potter was 72.83, with the highest score (81.32) for Harry Potter and the Philosopher’s Stone.” The lowest score for Harry Potter was Harry Potter and the Order of the Phoenix at 65.88. So in terms of readability, I fared better than Rowling in Order of the Phoenix. My guess is that statistics hit a glitch when measuring magic. Rowling writes with a wand, not a pen. When it comes to writing, us mortals are all her subjects.

Enjoy Chute the Virus.

Chute the Virus: A Transient Visitors Very Tiny Tale (davidoboyles.com)

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Orchardkeeper: Take a Pick, I mean click.

Over the years I’ve written various iterations of Orchardkeeper. The more I rewrote and revised, the less philosophical and the more Michael Bay it became. Maybe I am getting simpler in my thirties. Nowadays all I need is some lava and some giants and I’m satisfied. Hopefully you are too. If not, you can still enjoy Gene Ellerby’s illustration of Transient Visitors Month 2 of 12 Teaser Tale #7 (see below). Gene’s work is always worth a click.

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hungry? Have some troll food.

Check out my newest Transient Visitors, Month 2 of 12, Teaser Tale, “Troll Food“. I wrote this during the winter months of Covid after quite a bit of time jogging on long country roads during dry January, trying to rid myself of a craft beer belly. Disclaimer: No aliens or trolls were hurt in the production of this story.

-DOB

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A Transient Visitors teaser tale on football to get you ready for football Sunday

Odd as it may appear, I’ve been working on this story for a few years now. Little brains take a long time to produce things, even if they are only a few pages. I wanted to publish it at the right time, so I asked myself, when would the world be most receptive to “The Arro”. The answer: before kickoff on Sunday morning. If anyone is interested to know, this will be one in a series of more targeted posts (a story about football posted on Sunday morning before football) to see if I generate more traffic. Maybe that’s a no brainer. But again, see above…little brain. Link to “The Arro” here: https://davidoboyles.com/the-arro/

Teaser Tale Number 3, “Death by Relaxation” now available. Intended readership live life by anxiety.

A little something to indulge alongside your Friday morning coffee and (hopefully) donut. Even though it’s short and sweet, as a matter of principle, take your time reading this one. For many of you it’s the last Summer Friday of the year. By this time next week it will be a lot harder to fake what you are working on. Enjoy for the time being. Winter is coming.