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Legislation Major Outline

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I. Purpose vs. Text:

Legislative Intent/Purpose: 3 Main Sources of Disagreement o 1) What Type of Intent Matters?

Textualists: Communicative intent only—what meaning did legislature intend to communicate through the words in the statute?

Purposivists: Also motivations for passing statute and expected results o 2) What Rules About Consulting Intent Should Apply?

Textualists: Pre-existing rules and presumptions only

Purposivists: OK for court to make ad hoc rules as it goes along o 3) What Sources of Information Can Judges Use to ID Intent?

Textualists: only the text - ignore things like internal legislative history

Purposivists: while there must be some limits, look to any reliable sources such as committee reports and transcripts Implied Exceptions into seemingly general statutory language o RULE: three general ways to read implied exceptions into laws:

(1) Imaginative Reconstruction (Riggs, Church of the Holy Trinity): generally only to resolve ambiguity, unless ad hoc

Can be based largely on purposivism (Speluncean Explorers)

(2) Fundamental Maxims of the Common Law (Riggs relying on NY Mutual, contra Murchison, Easterbrook on Speluncean Explorers): debate over whether it resolves ambiguity, or can contradict clear language of statute

(3) Presumption Against Absurdity (Kirby): cannot read statute to reach absurd results (can be overcome by LH even per Scalia, Green v. Bock Laundry)

See also Avoidance Canon allowing exceptions to avoid constitutional questions o Riggs v. Palmer (NY 1889, p. 7) - imaginative reconstruction, fundamental maxims of common law

FACTS: grandpa gave willed most of his stuff to his grandson. Grandpa later talked about changing it, so grandson killed him.

STATUTE: wills stay in effect "except in the cases hereinafter mentioned" but statute did not mention slayer exception.

RULE (Majority, Judge Earl): reads implied exception for slayers in both the wills statute and afterward in the statute of dissent to disinherit the grandson.

(1) Imaginative reconstruction: reasons that legislature made a general policy for normal situations, and would have made a separate policy for murderers if they had anticipated this.

PRO: limits to human foresight; fundamental fairness and better results; maximizing social welfare; on the balance courts might be good figuring out intent; statutes don't just convey text, they convey policy and we must be sensitive to that policy interpreting the text; legislature can change or communicate if it doesn't want exceptions;

CON: lack of notice (see dissent); costly to litigate; separation of powers concern (court, not legislature); on the balance courts might be bad at figuring out intent; time makes it harder to put yourself in legislature's shoes; text enumerated exceptions; text is best indicator of intent

Today: courts are less likely to engage in ad hoc imaginative reconstruction, and more lifkely to use it only to resolve ambiguity of a statutory term

(2) Fundamental Maxim of Common Law: fundamental maxims of the common law can control the operation and effect of generally worded statutes that don't opt out of them. Thus the nullus commodum principle (no one should be able to profit from his own fraud) implies that this will can't be enforced

PRO: basing on pre-established principles, so not ad hoc like imaginative reconstruction;


CON: nullus commodum didn't apply in all situations at common law (e.g., murderers can retain profits from books about their killing)

E.g., Contra: federal statute 15 USC 1593 makes banks liable to consumers for violating duties established for electronic transfers. Statute did not speak to CL accord & satisfaction. Court could read CL into the statute, or it could read it out to protect against banks' bargaining power. (See also Easterbrook in speluncean explorers)

NY Mutual Life v. Armstrong (1886, p. 9) - no statute

FACTS: life insurance K; beneficiary kills the insured

RULE: CL of contracts leaves room for nullus commodum, but there's no statute speaking to enforceability of these Ks

NELSON: this is a court articulating the common law of contracts absent a statute, whereas in Riggs v. Palmer is a step further because you need to read it into a statute that already specifies exceptions

NELSON: Two arguments are related: while doing imaginative reconstruction, may assume that legislature did not want to depart from common law.

DISSENT: Legislature intentionally chose a general rule with a limited set of exceptions without an escape hatch, so the court can't change that. Lack of notice for implied exception. Actors plan their behavior on the text of the statute, not on what courts might do.

See Murchison v. Murchison (TX 1918, p. 22): defines the line between when common law can and cannot enter into interpretation. Court incorporated CL to prevent Life insurance K from benefitting slayer beneficiary, but when the payout goes to the estate (of which slayer was heir) via the statute of descent the court did not read statute to leave out the slayer from normal descent rules.

Occupation of the Field: Most states (inc. TX) read their descent statutes to occupy the field, i.e. no court-made exceptions. NY in Riggs was the exception.

See also notes on interpreting slayer statutes at the end of 1/24/17 and beginning of 1/25 Church of the Holy Trinity v. U.S. (1892, p. 27) - Purposivism, Imaginative Reconstruction, Presumption Against Superfluity

FACTS: Church contracts with British pastor to pay his moving fees to preach in the US.

STATUTE: Section 1 prohibits paying in advance the transportation fees of an alien coming to the US to "labor" or "service." Section 5 exempts professional artists, actors, lecturers, and singers.

RULE (Brewer): Purpose of "labor" in statute is to address cheap unskilled manual labor (Purposivism) and Congress could not have intended to cover churches paying for ministers or even harming religion (Imaginative Reconstruction). Considers legislative history as evidence of purpose and Congress's intent (one of the first cases to do so). Though letter of the statute includes ministers, there's an implied exception.

CON: if you read Section 1 that narrowly, then Section 5 is Superfluous, and thus Section 5 says that Congress had a broader intent in Section 1 than just manual labor

Presumption against Superfluity: If 2 plausible readings and one would render other language in the statute superfluous, choose the other.

NELSON: purposivism can't be wholesale ignored, but you must balance matching intended meaning with other things like notice, judicial economy, etc.

NELSON: Legislative intent can be partially determinative. If legislature may have intended to accomplish either A or B, C can be ruled out as the correct reading of the statute.

HYPO: statute passed banning cars on cinder blocks in front of homes for stated and enacted purpose of preventing decreasing property values. Does a lamborghini count as a car if it would increase them?
U.S. v. Kirby (1869, p. 29) Absurd Consequences, fundamental maxims of common law

FACTS: Sheriff attempted to arrest mailman on a state law murder charge. Arrest was made while mailman was on the job.




STATUTE: Unlawful to interfere knowingly/willfully with the carrying of the mail. RULE: Although letter of the law protects mailman, would be absurd to extend the law to prevent mailman from being arrested for a felony. Generally worded laws should be sensibly construed to avoid absurd or unjust application.

Vs. Trinity: here we have a law stating policy against murder; different from Trinity where it's just a general policy. Thus Trinity may be more ad hoc

Common Law: There could be CL defense of state authorization for arresting officer

See middle of 1/26/17 for civil war background Speluncean Explorers: 5 amateur spelunkers get trapped in a cave. To survive for rescue they pick one explorer, kill, and eat him. Murder statute says "whoever shall willfully take the life of another shall be punished by death"

FOSTER (purposivist):

(1) Statute does not reach people who are separated from civilized society (outside of our legal order).

(2) (more controversial) Statute does reach these people, but we should read in an implied exception. Purpose of murder law is deterrence, and exceptions should apply if punishment will not deter things we think are crimes (e.g., self defense, based on morality/deterrence)

NELSON: other criminal law purposes include retribution, morality, etc.

Intelligent Fidelity: Court is an agent of legislature, using its judgment to carry out commands as it best sees fit. Generally means following text, but can sometimes deviate in order to follow the principles.

See, e.g., yelling "drop everything and come here" to maid not knowing that she's holding the baby over the rain barrel

KEANE (textualist): Statute reflects human conviction that murder is wrong and murderers should be punished. Plain meaning says as much. Let judge give clemency after conviction if he wants.

KOZINSKI (real judge): Judges don't get to decide that deterrence is all that makes murder a crime. Let the legislature decide when murder statutes will apply.

CON: has the legislature really considered and decided this?

EASTERBROOK (real judge): Purposivist approach is too ad hoc, but generally worded criminal statutes should accommodate a justification defense (e.g., hangman, necessity).

NELSON: agrees

See also accord & satisfaction in electronic transfer of funds case under fundamental maxims of CL

Prosecutorial Discretion: Common-law safety valve for difficult cases. Exists unless the statute clearly opts out of it. Scrivener's Errors vs. Idiosyncratic Usage Key Questions

1) How should courts ID such errors?

NELSON: Is the plain language sufficiently odd that reading the words to have their ordinary meaning would be idiosyncratic, absurd, or nonsensical?

Locke: Start with presumption that words used in ordinary meaning, disagreement of what burden to overcome. Marshall majority thought a 12/30 deadline was not "demonstrably at odds with the intentions of the statute's drafters" (Clear and Convincing Evidence); Stevens dissent thought it was (uses lower preponderance standard); Nelson thinks any strange result is enough for Stevens to change the statute, but most would agree w/
M or require beyond a reasonable doubt.

Green v. Bakk Laundry (1989, p. 235): Scalia corrected "defendants" to "criminal defendants" in an FRE because the totality of the text gets priority over the single provision. Only way to make this rule make sense is to add the word "criminal."

NELSON: mere congressional silence on, e.g., a background CL principle or a canon of construction does not mean it is an error








NELSON: would read CAFA as deadline, but wouldn't change "prior to"

2) What should Courts do about them?

a) Should you carry idiosyncratic usage forward throughout statute to diagnose additional idiosyncratic usages, and thus create consistency?

b) Should you change it even if you're sure or close to sure it's an error? (Easterbrook in Spivey; sort of Bybee in Algamated Transit) U.S. v. Locke (1985, p. 39) Plain Language

FACTS: Locke filed required mining documents on 12/31/80.

STATUTE: statute required anybody with claims to search for and mine deposits of minerals on federal land to file prior to December 31st of previous year

RULE (Marshall): "Prior to 12/31" means "on or before 12/30." Court can fill gaps, but not contradict the plain language when it is clear.

Marshall approach to textualism: Less judicial discretion means less opportunity for judges to discriminate against minorities.

DISSENT: diagnosed a Scrivener's Error by saying that Congress meant by 12/31, not before 12/31. There was a clear mistake elsewhere in the statute "either...on" instead of "either...or" that needed to be corrected; why not this too? Also statute discussed claims "prior to" and "after" date of the Act but not on date of Act. Class Action Fairness Act of 2005

STATUTE: Requires that appeals of decisions about remand of removed class actions be filed "not less than 7 days after" decision is rendered. Establishes a waiting period of 7 days, but Congress meant "more" and wanted to establish a deadline. Separate provision established a general 30-day deadline for appeals of CAFA issues.

Spivey v. Vertrue, Inc. (7th Cir. 2008, p. 57) - Notice

MAJORITY (Easterbrook): assumes it's a mistake, but must follow text for notice reasons - if you read it literally and wait 7 days to follow that meaning, you're screwed. Another provision provides deadline of 30 days, so it's okay.

Amalgamated Transit Union v. Laidlaw Transit (9th Cir. 2006)

MAJORITY: Read "less" as a scrivener's error and substituted "more" because there was "no plausible reason" why Congress would establish a waiting period.

DISSENT (Bybee): Requires high level of certainty to correct drafting errors. "Less" is grammatically correct and it's not court's job to decide whether what Congress did was logical. Go by the letter of the text because we're not 100% certain—there have been examples of Congress making waiting periods before (not like "either . . . on"). Rules vs. Standards: spectrum Ruleness Definition (Schauer): the more a legal directive invites judges to make direct references to purposes of the law and draw conclusions therefrom, the less rule-like something is. Conversely, the more the legal directive reflects advanced judgments on those topics or narrows the range of factors to consider for underlying policy goals, the more rule-like it is. (E.g., 65mph speed limit vs. no unsafe driving)


Maintain control over implementation of statute

Improve accuracy, consistency, and economy of judicial decisions



Over and underinclusive

Arbitrary line-drawing


Unforeseen circumstances Jaskolski v. Daniels (7th Cir. 2005, p. 71)


Easterbrook: Legislature decides whether to make a rule or a standard. Courts should not change that decision. (But see Riggs and Trinity as exceptions to general rules) (but see Easterbrook in Spelunkean Explorers - reads in background principles to make a rule a standard)

APPLICATION: statutory text was ambiguous, and thus can look to purpose (through appropriate sources) to pick among permissible interpretations. Can do this to chose between rule/standard. Background Principles vs. Purposivism: Background principles of common law are rooted in the legal tradition, with broad consensus on them. Does not favor either rules or standards. Purposivism does not have the history or consensus of a limited background principle (their principles are statute specific and often inferred), and has the goal of making statutes more-standard like. That background principles make it less rule-like is merely incidental.



NELSON cares about three key things here: o (1) normative vs. descriptive o (2) When they apply

Always: descriptive canons

Resolving linguistic indeterminacy: some normative canons

When triggered: Implied limitation rules (no indeterminacy required) o (3) How much evidence is necessary to overcome, e.g., a clear statement, legislative history, etc. Descriptive Canons: Canons that Formalize Common Principles of English Usage o Ordinary Meaning Principle (p. 83): Words in a statute are to be given their ordinary meaning absent "persuasive reasons to the contrary."

Ordinary meaning is the common use of the term in American English at the time of enactment.

Ways to find:

Dictionary: First entry is usually oldest, not necessarily best

Corpus Analysis: Analysis of usage of term in media. May not be relevant to specialized uses. o Terms of Art (p. 84):

Terms with technical meaning in a field: use context to determine whether term carries ordinary or specialized meaning.

Terms that have acquired prior meaning in the law: E.g. "seaman" carries its common law meaning, not its dictionary definition.

But see all the employer/employee cases under Chevron

See also familiar terms in state law option 3 o Noscitur a Sociis

A word is known by its companions (interpret words in lists based on what they all had in common; note that finding the scope is contentious). This is about a specific, listed term. Ejusdem generis is for a catch-all term.

NELSON: first identify the pattern that links the other words

Jarecki v. G.D. Searle & Co. (1961, CB Day 8)

STATUTE: "[i]ncome resulting from exploration, discovery, or prospecting, or any combination of the foregoing, extending over a period of more than 12 months"

APPLICATION: Discovery only interpreted to be discovery of mineral resources

Maracich v. Spears (2013, CB Day 8)

STATUTE: allowed for disclosure of personal information gathered by DMV "For use in connection with any civil, criminal, administrative, or arbitral proceeding . . . including . . . investigation in anticipation of litigation."

APPLICATION: "civil . . . proceeding" not interpreted to include lawyers seeking those who bought a model of a car who wanted to gather possible πs for class action suit because the statute only covered attorney conduct when acting as an officer of the court o Ejusdem Generis

When a statute includes a list of items in a class followed by a generic catch-all word that is arguably broader, the word should be read to be limited to items in the class (i.e., narrower reading)

E.g., "all pants, skirts, shirts, dresses, and other articles of clothing" may be read not to include undergarments under last list element

1st Circuit: this canon is weaker and dubiously applicable when the general comes first (Nelson disagrees)

Christopher v. SmithKline Beecham Corp. (2012, Syllabus): when Congress enacts "a list of specific items" followed by a "catchall phrase," courts should not read the catchall phrase so narrowly that it adds nothing to what the list of specific items already covers.

Circuit City Stores, Inc. v. Adams (2001 p. 87)


STATUTE: "seamen, railroad employees, and any other class of workers engaged in foreign or interstate commerce."

APPLICATION: "Any other class" covers only employees in transportation industries. Presumption of Consistent Usage: Legislatures will use words in the same way throughout a statute unless context suggests otherwise.

See also what to do with drafting errors: what to do in later uses in the statute?
Presumption Against Superfluity: If two readings are possible and one would make another term superfluous, choose the other reading.

Not an absolute bar on superfluity. Must be ambiguity to trigger the canon.

Presumption against superfluity does not give one interpretation an edge over another interpretation if both interpretations would create superfluity (SCOTUS)

Marx v. General Revenue Corp. (2013): "a phrase is not superfluous if used to 'remove . . . doubt' about an issue," even if the Court would have ended up resolving the doubt in the same way absent the phrase Expressio Unius: Expressing one is excluding the other. If a statute creates a general rule and makes an exception for one category, assume no exceptions for other categories.

NELSON: this is a weak canon

E.g. State makes "theft, forgery, and murder" crimes and gives justification defenses for theft and forgery. This canon suggests there is no justification defense for murder.

Counter-arguments: Maybe it was broadly assumed common-law defenses were available for murder, but statute was needed to make them available for theft and forgery.

Marx v. General Revenue Corp. (2013): expressio unius canon does not apply unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it. Canon can be overcome by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion Illustrations of the Canons:

Gustafson v. Alloyd Co. (1995, p. 94)

FACTS: shareholders of a company enter into K to sell shares to another company, but made warranties and representations that were false and material. Buyer wanted to rescind, but they could only do so under Securities Act section 12(2) if the K was a prospectus as defined in section 2(10). Only communications were private, not public.


Section 12(2): Establishes COA for rescission against anyone who sells securities by a "prospectus or oral communication" that includes a false or misleading statement.

Section 2(10): Defines prospectus as "prospectus, notice, circular, advertisement, letter, or other communication, written or by radio or TV, which offers any security for sale or confirms the sale of any security"

Section 10: lists what documents (including registration statements) a "prospectus" must have, but does not include reference to "communications." Only governs public transactions within the meaning of section 5.

MAJORITY (Kennedy): "Prospectus" doesn't include Ks for sale because...

Noscitur A Sociis: "Communication" should be limited to publicly disseminated documents, like "notice, circular, or advertisement"

Consistent Usage: this would not qualify as a prospectus under Section 10, and thus the meaning under 12(2) must be the same

NELSON/KITCH: Section 10 only applies to certain public transactions under section 5 that cannot be, e.g., mailed, so they must be different (there's inconsistencies regardless of whether it is or isn't in accordance with Section 10), or this is only a subset of communication in 2(10). Also would create a big problem for how Section 5 operates

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