Rawr

Question 1

Describe the concept of Textualism.

Answer 1

The intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris

Question 2

Describe the concept of Intentionalism.

Answer 2

Discern intent by perusing all available sources, including, principally, legislative history; particularly answers the question of whether Congress addressed the specific issue addressed and intended to include it.

Question 3

Describe the concept of Puposivism.

Answer 3

Focuses on the broad goals of a statute, on the problem the legislatures meant to address by passing the statute; particularly answers the question of what the goal of Congress was and then answers whether the specific issue falls under that goal.

Question 4

Canon describing when Congress has not spoke to a common law ruling.

Answer 4

“The Dog didn’t bark” - if there was a common law rule before the statutory legislation, where the language seems to change that rule, there are courts that will say that since it was not expressed to change the common law rule.

Question 5

Describe the canon, “the dog didn’t bark.”

Answer 5

When a common law rule exists before statutory legislation and the statutory language does not seem to change that rule, courts will say that Congress did not express change in the common law.

Question 6

What distinguishes the “plain meaning rule” from others?

Answer 6

Use of ordinary meanings of terms; sometimes uses a dictionary. Generally, we read statutes according to their plain meaning, unless it leads to an absurd result.

Question 7

Describe Technical Meaning.

Answer 7

If words have a technical meaning in a particular trade, academic discipline or technical area, as well as an ordinary meaning that is different, courts will adopt the technical meaning of the term if the term is used in a statute that addresses the trade, discipline, or technical area.

Question 8

Describe the In Pari Materia textual canon and its two rules.

Answer 8

In Pari Materia is a canon where two statutes that share a purpose are construed together. The Whole Act Rule looks at language within a statute in context of the entire act. The Similar Statue Rule looks to similar language in similar statutes for context.

Question 9

Describe the Rule Against Surplusage.

Answer 9

a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. A statute should not be interpreted in a way that renders a word superfluous.

Question 10

Describe the concept of Noscitur a Sociis.

Answer 10

Literally, it “is known from its associates.” The meaning of words that are placed together in a statute should be determined in light of the words with which they are associated.

Question 11

Describe the concept of Ejusdem Generis

Answer 11

A type of noscitur a sochiis; taking a word that can have many meanings and narrowing it. Generally, catch-all phrases that merely have words in common to explain an idea.

Question 12

Describe the concept of Expressio Unis

Answer 12

Generally talking about lists; Congress must have acted intentionally and anything out of the list was intentionally left out

Question 13

How are Long/Short Titles and Preambles treated?

Answer 13

Only reach this if there is an ambiguity; much like legislative history.

Question 14

How do Stare Decisis and Legislative Inaction affect interpretation?

Answer 14

If a court decides on an interpretation and the legislature do nothing to remedy that interpretation, it is presumed that the court got it right.

Question 15

Describe Statutes in Derogation of Common Law.

Answer 15

States that statutes are to be read as congruent with common law unless specifically stated

Question 16

Describe the concept of Remedial Statutes.

Answer 16

Statutes that create rights or remedies that were unavailable at common law.

Question 17

Describe the concept of the Rule of Lenity.

Answer 17

Two conditions to use this rule - applies only when the statute has a penal component to it (implying even a civil statute with a penal aspect to it, like criminal implications; see Thompson pdf case); and the rule is not a catch-all maxim that resolves all dispute in the defendant’s favor - a sort of juridical “tie goes to the runner” - instead, many courts hold that the rule applies, not if the statutory text is ambiguous, but only if the ambiguity remains after the court has examined other sources of statutory interpretation, including legislative history

As to the second condition, the rule is reserved for those situations in which a reasonable doubt persists about intention after resort to the language and structure, leg hist, and motivating polices of the stat

Question 18

Describe the Constitutional Avoidance Doctrine.

Answer 18

Absent a clear expression of Congress, statutes should be interpreted in a manner that does not violate the constitution.

Don’t need to find that a statute is unconstitutional, just that a constitutional issue arises. After seeing that, you can use the Constitutional Avoidance Doctrine to find a reasonable alternate interpretation.

Question 19

Describe the New Federalism Canon.

Answer 19

InGregory,the Court created a two-tier inquiry [using the Plain Statement Rule]. First, Congress must clearly intend to extend a law to the states as states. Second, Congress must delineate which specific state governmental functions it wishes to include within the sweep of thefederallaw.

Question 20

Describe the differences between Borrowed, Similar, and Uniform Statutes

Answer 20

Borrowed - a special type of similar statute; some evidence of legislative history that another statute was used in its formation

Similar statute - similar language

Uniform - Ideally, courts will try to give weight to foreign courts as to the interpretation

Question 21

What are the two canons associated with Conflicting Statutes.

Answer 21

1) General v Specific: Sometimes there will be two statutes where one is specific on some topics and the other specific on other topics. The issue then becomes to find the exact issue being dealt with.
2) Later-Enacted Rule: Problem when you have a statute that is more specific but was enacted earlier.

Question 22

Describe the concept of Implied Repeal.

Answer 22

if there is evidence that the legislature was passing a comprehensive bill, that would be a point that can be used in favor that the later statute should repeal the earlier statute.

Morton Court - the courts are not at liberty to pick and choose among congressional enacments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” “When there are two acts upon the same subject, the rule is to give effect to both if possible… the intention of the legislature to repeal must be clear and manifest.” Without express intention to repeal, implied repeal cannot happen.

Question 23

What is the Chevron Test?

Answer 23

Whether Congress has unambiguously decided the issue; if not, whether the agency resolved the ambiguity. Congress explicitly leaves gaps for agencies to fill for regulation. Agencies are in the better position to proper regulate the area.