Final Flashcards
Textualism
(LETTER of the law) strive to determine how “reasonable” people would understand the semantic meaning of the statute
Applies to Constitution and what text of law meant when it was written
Rationales to stay away from Textualism
- Ambiguity (May use legislative history narrowly)
* Absurdity doctrine (see below)
New Textualism
(Scalia) apply meaning of terms from when statutes written; need to step away from legislative history but can use statutes written contemporaneously
Canons of Construction
interpretive principles or presumptions that judges use to discern or construct statutory meaning.
Expressio Unius
Rule: the expression of one thing implies the exclusion of another. If certain items are listed, while another one is not, it was intended to be excluded. Textualists <3
Ejusdem generis
(of the same type) Rule: a way to narrow the meaning of a residual term. Usually a list of specific terms followed by a residual term with a broad meaning – A, B, or any other X
Noscitur a sociis
(known by its associates) Rule: a word’s meaning can be clarified - and often narrowed – by the words around it. (use when word’s meaning uncertain) – Similar to Ejusdem Generis but broader. (This applies to A, B, and C – what does C mean based on A&B)
Dictionary Interpretation
Rule: When a word’s meaning in a statute is ambiguous, a contemporaneous dictionary can be used to clarify the meaning.
Ordinary Meaning
Rule: When a word’s meaning in a statute is ambiguous, one should use the ordinary meaning as generally understood by the average person, as opposed to a technical or scientific meaning.
Scientific/Technical Meaning
When a word or phrase’s meaning in a statute is ambiguous, other resources, such as legislative history, can help determine if a scientific or technical meaning was intended.
Definition Section of Statute
When at all possible, look for a definition section in the statute to resolve statutory ambiguities before looking to resources outside statute.
Intentionalism
Judge should try to reconstruct the LIKELY intent of the legislature, i.e. what would have been legislature’s specific intent for specific interpretive question before court.
Absurdity Doctrine
Statutes should not be construed to create absurd results
Legislative History
Legislative history should be used to resolve ambiguity in statutes based on the strength of the available resources.
Originating Committee Report
Considered most reliable way to resolve statutory ambiguity, includes House & Senate committee reports that accompany bills & conference committee reports
• Explains why the committee framed the bill a certain way, what they sought to achieve, & sometimes their definitions of words/phrases
Statements by Bill Sponsors
Considered reliable way to resolve statutory ambiguity, although attention must be paid to the timing of statements, i.e. not made after legislation passed!
Floor statements of individual legislators
NOT RELIABLE
Statements during hearings
Generally not reliable
The dog that didn’t bark
Rule GENERALLY NOT RELIABLE: Absence of discussion in legislative history, especially when differences in statutory interpretation could result in major and controversial change to prior law
Purposivism
(SPIRIT of the law) Tries to determine general, broad goal of the statutes being interpreted; Concept of “Equity” – court’s role to shape statutes to promote fairness.
Substantive Canons
Clearly favor a policy worth protection or disfavor specific result. While not textualist on its face, difficult to fit into clear doctrinal category.
Rule of Lenity
If a criminal statute is ambiguous, resolve it in favor of the accused. (PURPOSIVIST)
Avoidance
Presumption is in favor of legislation being constitutional. Could require “clear statement” from Congress to interpret legislation in constitutionally questionable way.
Protecting State Sovereignty & Autonomy (pro-federalism):
Construe federal statutes narrowly to avoid excessive encroachment on critical state prerogatives. Could require “clear statement” that federal statute overrides state authority.
Presumption against Preemption:
Narrowly interprets federal statutes to argue they do not apply to state law. If ambiguous, err against preemption.
Presumption against applying U.S. law outside of U.S.:
Need “clear statement” from Congress if U.S. law intended to apply outside U.S. jurisdiction.
Clear Statements Overview – Courts have deemed them to be required in:
Avoidance Canon
State Sovereignty
Presumption against Preemption (Express)
Presumption against laws applying outside U.S.
Constitutional position of Administrative Agencies:
Constitution gives Congress powersCongress enacts authorizing statutes that delegates powers to executive agencies agencies create rules and continue to interpret those rules based on their authorizing statutes (now governed by APA)
o Vesting Clause: Article 1, §1: “all legislative Powers herein granted shall be vested in a Congress of the United States.”
Formalists:
Sharp lines of demarcation between powers and responsibilities assigned to respective branches (NO delegation)
• Originalism: Constitution’s meaning fixed by understanding of what prevailed at the time of adoption
Functionalists
Purposive approach: Constitution more flexible, left a great deal undecided, much left unsaid, must allow government to adapt to changing society
Nondelegation Doctrine
Theory that an executive agency can only exercise power that is legislative in nature if a statute has delegated such power to that agency or actor.
Construing Statutes Narrowly
to avoid serious delegation problem/similar to avoidance doctrine
