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SECTION ONE: STATUTORY INTERPRETATION & STANDARDS STATUTORY INTERPRETATION When words in a statute are ambiguous, judges and agencies rely on canons of statutory construction to interpret the meaning of words. Each canon, however, has an "anti-canon," which would lead to an opposite conclusion. Judges are thus forced to choose between conflicting canons; these choices are informed by ideology (e.g. textualism v. purposivism) as well as judges' perspectives on institutional strengths (e.g. legislative history). I.
STATUTORY INTERPRETATION: THE BASIC ISSUES a.
Statutory Interpretation: Theory - there are three approaches to statutory interpretation: (1) intentionalism (determine intent of framers), (2) purposivism (determine reasonable goals of reasonable people acting in a reasonable manner, from perspective of then or today), and (3) textualism (determine only what text says); Tushnet likes (2). i. Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 VAND. L. REV. 395 (1950) - 319
1. Two ways to read any precedent. There is no "one way" to read precedent, since a judge may alternatively (1) "distinguish" a past case to minimize its holding or (2) "extend" a case's holding to apply to a broader set of rules. Both are correct, so an opinion essentially answers "why" (1) or (2) is preferable.
2. Extrajudicial reasons why judges pick one or two. (1) or (2) may not be available, psychologically, because of a. tradition (the court may be in the "Grand
[purposive] Style" of John Marshall or the "Formal [textual] Style" of Lochner) b. temper ("creative" personnel who orient law toward general welfare or "order" judges who want caution) c. situation as seen by court (general situation, e.g. labor unrest in 1890s, might influence decision, as might particular litigants).
3. Two ways to read any statute. Courts have similar choices with statutes---may freely interpret to effect purpose (purposivism) or literally interpret to limit meaning (textualism).
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Defense of purposivism. Llewellyn subscribes to purposivism since statute must be read in light of some purpose: (A) one based on legislative intent of what was before draftsmen, (B) one based on what may be "quarried" out of statute to fit present, or (C) court's unconscious assumptions.
5. Significantly, there are opposing canons for every point (p. 325): TEXTUALISM PURPOSIVISM A statute cannot go beyond its text. U.S. v. Marshall. A statute should be interpreted in light of other similar statutes (in pari materia). Brown &
Will.; Entergy Where design has been distinctly stated, no place is left for construction. Chevron Step 1. Definitions and rules of construction contained in an interpretation clause are part of the law and binding. A statutory provision requiring liberal construction does not mean disregard of unequivocal requirements of the statute.
Titles do not control meaning; preambles do not expand scope; section headings do not change language.
If language is plain and unambiguous it must be given effect. Les v. Reilly.
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Words and phrases which have received judicial construction before enactment are to be understood according to construction. Pierce v. Underwood. After enactment, judicial decision upon interpretation of particular terms and phrases controls.
Words are to be taken in their ordinary meaning unless they are technical terms or words of art. U.S. v. Marshall; Entergy.
Every word and clause must be given effect (avoid surplusage).
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The same language used repeatedly in the same connection is presumed to bear the same meaning throughout the statute. Chevron; Entergy. Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute. Exceptions not made can't be read. Chick. Nat.; Mass. v. EPA Expression of one thing excludes another (expressio unius est exclusio alteris). Whitman v. ATA. General terms construction.
To effect purpose may implem beyond text. Holy Trinity Not if scope and aim are distinct or wher legislative design is to depart from gen purpose. Brown (dissent). Courts have the power to inquire into real---
distinct from ostensible---purpose. Definitions and rules of construction in a sta will not be extended beyond their necess import.
Where a rule of construction is provided within statute itself the rule should be applied.
The title may be consulted as a guide when ther doubt or obscurity in the body; preambles may consulted to determine rationale; section head may be looked upon as part of the statute it Holy Trinity. Not when literal interp. would lead to abs conseqs. or thwart manifest purpose. Trin Deukmejian; Bock Laundry
Not if the statute clearly requires them to hav different meaning.
Practice construction by executive officers is str evidence of true meaning. Chevron Step 2.
Popular words may bear a technical meaning technical words may have a popular significa and they should be so construed as to agree the evident intention or to make the sta operative. Holy Trinity; Pierce v. Underwood If inadvertently inserted or repugnant to the res statute, may be rejected as surplusage. Chicks Nation.
This presumption will be disregarded where necessary to assign different meanings to make statute consistent.
Rules of grammar will be disregarded where s adherence would defeat purpose.
Whatever is within the reason of the law is within law itself. Language may fairly comprehend many ca where some only are expressly mentioned by of example. Arnold Print. They may be limited by specific associated term by the scope and purpose of the stat Deukmejian; Falvey
2 2 2 3 2 5 2 6Where general words follow an enumeration they Ejusdem generis is only an aid in getting are to be held as applying only to persons and meaning and does not warrant confining things of the same kind/class specifically operations of a statute within narrower limits t mentioned (ejusdem generis). Chicksaw were intended. Mass. v. EPA. Nation; Mass. v. EPA (Scalia, diss.). Qualifying words/clauses are to be referred to the Not when evident sense and meaning requir next preceding antecedent. Indus. Union Dept. different construction. v. API Language has been chosen with due regard to "And" and "or" may be read interchange grammatical propriety and is not interchangeable whenever the change is necessary to give on mere conjecture. statute sense and effect. There is a distinction between words of Not when alternative construction is m permission and mandatory words. necessary by evident intention or by the right Brown&Will.;Mass.v.EPA.; Whitman the public. Noscitur a sociis: "a word is known by the company it keeps." Whitman v. ATA. Constitutionality Canon: reject construction that would make law unconstitutional; construe sta in way that avoids tough constitutional question. U.S. v. Marshall (Posner, diss.). Rule of Lenity: interpret ambiguous criminal statutes in favor of D. U.S. v. Marshall (Posner, diss Federalism Canon: presume that statutes were not intended to preempt state authority to act. Lo Div. 589. Indian Canon: ambiguous provisions should be interpreted for Indians' benefit. Chicksaw Nation. Big Deal Canon: if issue is a Big Deal, assume Congressional silence is purposeful. FDA v. Brow Williamson. Tax Canon: exemptions from taxes must be clearly expressed. Chicksaw Nation.
Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983) - 328
1. Defense of textualism. When a statute is not "on point," judge must "put it down," unless the statute says to court/agency "create and revise the common law to accomplish X goal." Statutes, as written, may be most desirable compromise, so "filling blanks" may not be legislature's goal.
2. Problems with legislative history. Four reasons why judges should not seek legislative "purpose": (1) no such thing as "original intent" since a legislature is a body of people without a mind of its own---only relevant outcome is statute; (2) legislatures expire, so courts should not give them life beyond what may be fairly vetoed by President; (3) "liberal" principles require respecting people, not governments; (4) no judge can place himself into minds of enacting legislators. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992) - 339
1. Defense of purposivism. Legislative history and purposivism is fine if judge accepts two assumptions: (1) appellate courts are administrative institutions that resolve disputes while clarifying law, and (2) law is human institution that serves human and social needs.
2. Five cases in which legislative history helps. a. Avoiding absurd results. When outcome is absurd, court may depart from words to find purpose of statute. Example: Green v. Bock Laundry Machine Co., (U.S. 1989), where
Fed. Rule of Evid. prohibited evidence with "prejudicial effect to the defendant" without distinguishing between criminal and civil cases. Leg. history did not show this was intentional (cn. 12). b. Identifying drafting error. Legislative history may clarify when something was intended to serve organizational, not substantive, objectives. Example: United States v. Falvey (1st Cir. 1982), where counterfeiting statute originally covered "any U.S." coin but was amended to "any" coin. Since legislative history said amendment was intended to make no substantive changes, court did not apply to Kugerrand (cn. 21). c. Identifying specialized meaning. Words like "substantial" may only have meaning in context of legislative history or background. Example: Pierce v. Underwood (U.S. 1988), where Court used legislative history of Admin. Pro. Act to show "substantial" referenced an earlier case, (cn. 13), defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" (cn. 15). d. Identifying a reasonable purpose. Legislative staffs may have intended meaning beyond the imagination of a judge, and court should not dismiss capabilities of legislative staffs just because their "reasonable expectations" are only available through histories. Example: In re Arnold Print Works, Inc. (1st Cir. 1987), where court interpreted whether unenumerated possibility belonged on 15-item list by reference to legislative history (cn. 20). e. Supporting compromise. Congress knows courts will look to legislative history, so staffs prepare documents according to institutionalized processes; may separate controversial aspects of statute from agreedupon provisions. Example: Local Div. 589 v. Mass. (1st Cir. 1981), where legislative history of controversial statute with respect to preemption was clear (federalism cn.) Analysis - textualism v. purposivism is an issue on many exams; this one from Fall 2008 is a good comparison of the two. i. Critique of purposivism. Purposivism is open to the critique that it invests too much discretion in judges, who, deciding what is reasonable, act more like
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