Chapter 2: Sources and Theories

Question 1

Intrinsic Sources (def)

Answer 1

Materials that are part of the official act being interpreted.

Question 2

Intrinsic Sources (ex)

Answer 2

Words, grammar, punctuation, components of the act (purpose, finding clauses, titles, and definition sections, and linguistic canons).

Question 3

Extrinsic Sources (def)

Answer 3

Materials outside of the official act but within the legislative process that created the act.

Question 4

Extrinsic Sources (ex)

Answer 4

Legislative history, legislative acquiescence, borrowed-statute rules. agency interpretations.

Question 5

Legislative History (def)

Answer 5

Statements made during the enactment process.

Question 6

Legislative Acquiescence (def)

Answer 6

Canon that leg silence in response to a judicial interpretation of a statute means leg agreement with that interpretation.

Question 7

Borrowed-Statutes Rules (def)

Answer 7

Presumption that the leg intended when it borrowed another state’s statute, to adopt the other statute’s judicial opinions regarding that statute in effect at the time.

Question 8

Agency Interpretations (def)

Answer 8

Presumption that the leg meant to defer to the meanings agencies give to ambiguous statutes.

Question 9

Policy-Based Sources (def)

Answer 9

Separate from the statutory act and leg process. Reflect important social and legal choices derived from the Constitution, common law, or prudence.

Question 10

Policy-Based Sources (ex)

Answer 10

Constitutional Avoidance Doctrine, Rule of Lenity, the Remedial and Derogation Canons, Clear Statement Rules.

Question 11

Constitutional Avoidance Doctrine (def)

Answer 11

If two reasonable or fair interpretations exist, one of which raises constitutional issues, the other interpretation should control.

Question 12

Rule of Lenity (def)

Answer 12

In a criminal case, the canon that if two reasonable interpretations exist, the court should adopt the less penal interpretation. (Rule of last resort now because of our focus on penalizing criminals.)

Question 13

The Remedial and Derogation Canons (def)*

Answer 13

That statutes in derogation of the common law should be strictly construed, while remedial statutes should be broadly construed.

Question 14

Clear Statement Rules (def)

Answer 14

Presumption that in some situations, such as ones raising federalism concerns, Congress would not intentionally alter the status quo absent a clear statement to that effect.

Question 15

Rule About Sources Used

Answer 15

1. there are many informational sources available to judges and 2. that some judges are more willing to look beyond intrinsic sources for meaning than others.

Question 16

Textualism (def)

Answer 16

Believe that the text of the statute is central. Hold Congress to the words used. Focuses primarily on intrinsic sources.

Question 17

Textualism (limits)

Answer 17

Look past intrinsic sources only if the words and dictionaries fail. Some are more strict, some are less.

Question 18

Soft Plaint Meaning Textualists

Answer 18

Text is primary but not exclusive.

Question 19

Moderate Textualists

Answer 19

Plain meaning controls but when ambiguous or absurd they will look to other sources.

Question 20

Strict or New Textualists

Answer 20

Refuse to look to non-textual sources like leg history or unexpressed purpose.

Question 21

Intentionalism (def)

Answer 21

Look to specific intent (originalists).

Question 22

Intent (types)

Answer 22

Specific: look to intended definitions of words (Intentionalism). General: overall purpose or goal (Purposivism).

Question 23

Intentionalism (Method)

Answer 23

Start with statutory language. Look to extrinsic sources even if no ambiguity or absurdity. Will also look to policy based sources.

Question 24

Intentionalism (belief)

Answer 24

Furthers separation of power.

Question 25

Intentionalism (flaws)

Answer 25

A whole leg cannot always have one unified intent.

Question 26

Purposivism (belief)

Answer 26

That every statute has a purpose or objective for its enactment.

Question 27

Purposivism (rule)

Answer 27

Judges should not give rules 1. a meaning those words cannot bear nor 2. a meaning that would violate generally prevailing policies of law unless including a clear statement.

Question 28

Purposivism (def)

Answer 28

Looks to general intent of leg.

Question 29

Purposivim (flaws)

Answer 29

Often leg do not say purpose, judges can overstep bounds by making policy decisions about the statute.

Question 30

Leg History (use)

Answer 30

To clarify or confirm.