What if There’s No Precedent? How to Approach Issues of New Law

Wavebreak Media LTD

In law school, you spend your time poring through casebooks, reading opinion after opinion, trying to understand the nuances of the law. Studying precedent is the first step to learning about a legal issue. When entering the field of practice, a young lawyer’s first question is often, “Do you use Lexis or Westlaw?” Young lawyers often spend their formative years researching case law and writing memoranda outlining how courts have treated specific legal issues.

So what happens when there is an issue of new law?

The New Jersey Legislature has enacted several new statutes in the past year that impact numerous individuals and businesses. Specifically, New Jersey enacted a new paid sick leave law, considered one of the most stringent pay equity laws in the country, and recently broadened paid family leave. New Jersey’s new laws are not limited to the labor field. The legislature also enacted new laws governing sports betting, an entirely new industry in the state, and may soon be approving recreational marijuana, which will sanction another new industry and establish an entirely new regulatory regime of its own.

These new laws have a wide impact, and young lawyers may soon find themselves (if they have not already) in a position where they need to interpret them and provide legal advice, in the absence of any case law to guide them.

Here are a few helpful hints for young lawyers on what to do when confronted with new law:

(1) Read the newly enacted legislation. The first step in any interpretative process is to review the new legislation as a whole. Resist the urge to focus on one small section without considering the whole law. It may be advisable to download the Chapter Law from the legislature’s website, so you can review all of the statutory sections that were amended at once. It may be helpful to also review bill statements, as well as any amendments to the bills, to potentially glean legislative intent from how the bill made its way through the legislature.

(2) Determine whether the new law is an amendment to an existing statutory scheme, or is a new standalone statute. For example, the New Jersey Earned Sick Leave Act is a stand-alone statute. By contrast, New Jersey’s Pay Equity Law is an amendment to the New Jersey Law Against Discrimination. And the New Jersey Sports Wagering Law involves a new statutory scheme, as well as amendments to the Casino Control Act and other longstanding law. This will influence how you interpret the statute; amendments may provide an avenue for guidance by reviewing what the legislature sought to change.

(3) Keep track of any proposed regulations. Oftentimes, statutes allow for regulations to then be promulgated. Regulations follow a separate process for notice and approval and are not typically adopted until months or years after the new law is enacted. In some instances, such as with sports betting, the state regulatory body enacted emergency regulations while the formal rulemaking process proceeded. Reading through the proposed regulations and following up on any comments or changes are vital to understanding the new law. Make sure to follow up with your client if any guidance is no longer accurate, like when initial adoptions of regulations are later revised based upon comments.

(4) Read any public policy statements or directives issued by state officials. Public policy is a large part of statutory interpretation. When new law comes out, the state may provide guidance to affected parties through statements that offer insight into statutory interpretation issues that could arise. For example, the director of the Division of Local Government Services issues Local Finance Notices, which provide guidance to municipal practitioners on new laws governing municipalities.

(5) Attend seminars. Often times, when new law comes out, seminars are offered by state and local bar associations, chambers of commerce, or private firms to discuss the new law and its impact. These seminars are important to attend and will provide you with a framework for understanding the new law and a network of professionals who will also be encountering the new law in their practice.

(6) Reach out to your network. New law is a great opportunity to reconnect with your network and expand your network to include new professionals who are dealing with similar issues. Other lawyers can be a wonderful source of information and helpful in discussing interpretation questions. Reach out to these contacts for lunch or coffee and discuss the new law and their insights.

Approaching issues of new law can be daunting. But it can also be exciting. While you may not have lots of cases to read, delving into legislative history and rulemaking allows you to understand new law in its earliest development. You can then follow the law as it becomes applied, and who knows, you could be the attorney arguing that case of first impression. Enjoy the unique opportunity of working with new law.

 

The NJLJ Young Lawyers Advisory Board is a diverse group of young attorneys from around the state. Follow them on Twitter, @YoungLawyersNJL.