Waldo Jaquith

Waldo:

I am by no means an expert on the Code, but I think that what you have between 1-401 and 1-402 is this — 1-401 has no text before its first paragraph, and it launches into paragraph A, B, etc. The Code is supposed to start with letters (A, B, etc.) rather than numbers, so it does — there is 1-401(A), 1-401(B), etc.

On the other hand, 1-402 does have text before its first numbered or lettered paragraph, and that text would ordinarily be 1-402(A), with subparts 1-402(A)(1) and 1-402(A)(2) etc. But because there is no paragraph B here, it would be confusing to have a paragraph A with no paragraph B — it would look as though something had been omitted. So they launched straight into 1-402(1), etc. It is as though the paragraph designation of (A) was there in the first draft, but omitted at the end to avoid confusing readers.

I have not done an exhaustive search of the rest of the Code to see if that is in fact their MO.

Posted by cvllelaw on 28 November 2010 @ 9pm

I thought you might be onto something there, but after reading around a bit, I don’t think so. For instance, § 18.2-9 uses numbers as its top-level hierarchical structure, despite not having any sort of a preamble. Mysteriously, all of the numbers are in parentheses. Then we have § 18.2-10, which has lowercase letters as its top-level hierarchical structure. Ditto for § 18.2-22. But the very next section—§ 18.2-23—is back to capital letters.

Unfortunately, I can’t find any instance of a section of the code that opens with a preamble and then uses capital letters (not set in parentheses) as its top-level hierarchical structure, which I think would be a pretty useful illustration.

You may be right, though—there may actually be some logic to this. But I sure can’t figure it out.

Posted by Waldo Jaquith on 28 November 2010 @ 10pm

So — the proper answer is, “Hell if I know.”

Actually, the Code Commission has nothing to do with it. Look at the statutes as they come out of committee. What this proves is that the General Assembly is not rigorous in how they number things. And when you read United States Supreme Court cases that construe statutes based on whether the statutes have separate paragraphs or use semi-colons, you realize that a lot of legislative interpretation is just whipped cream.

Posted by cvllelaw on 29 November 2010 @ 5pm

Well, actually the division of legislative services is probably more to blame than the committees. They actually draft all the bills.

Posted by Steve Vaughan on 30 November 2010 @ 4pm

The Internal Revenue Code has a few places where the same thing happens, with a preamble for numbered subdivisions, and letters for subdivisions that don’t have it.

Compare 26 U.S.C. sec. 107 with 26 U.S.C. sec. 119.

Posted by Scott on 2 December 2010 @ 12am

Some additional clues, at least from a Congressional document on statutory drafting:

A section in turn is normally divided into subsections. These are designated by lowercase letters: “(a),” “(b),” etc. Each subsection is a complete sentence and idea within itself.
But sometimes the section is one complete idea, with several subdivisions, none of which is itself a full sentence. The subdivisions are meant to separate out partial sentence elements. These subdivisions of a section are called paragraphs—not subsections—even though they generally are not technically paragraphs, but are instead phrases or clauses. They are designated (usually) with Arabic numerals: “(1),” “(2),” etc.

Pg. 8 of Statutory Structure and Legislative Drafting [PDF], by M. Douglass Bellis (Deputy Legislative Counsel, U.S. House of Representatives), published by the Federal Judicial Center, February 2008.
Conventions: A Primer for Judges

Posted by Scott on 2 December 2010 @ 12am

Very interesting, Scott! When reading it, maybe I should stop thinking structurally, and start thinking like a human. :) I mean, that wouldn’t do any good for writing a parser for the state code, but at least I’d be able to understand what their deal is.

Posted by Waldo Jaquith on 2 December 2010 @ 8am