Theories of Statutory Interpretation

Question 1

Intentionalists: Legislative Intent

Answer 1

Intentionalists Ask: what was the legislator’s intent?

1. Specific intent - what was the intent of each specific legislator?
2. General intent - what was the intent of the legislature writ large?

Question 2

Intentionalists: Holy Trinity rule

Answer 2

Legislative intent can trump the plain meaning of the text of the bill.

Look to:

1. The bill’s manifest purpose. (and what is the evil to be corrected)
2. The bill’s amendment history
3. The country’s historical approach to these problems (meaning that it would be highly unlikely for Congress to go against the grain of a known historical tradition)
4. The expansiveness of the plain meaning of the word or phrase.

Is the conduct “within the letter of the law yet not within the statute, because it is not within its spirit nor within the intention of its makers?”

Question 3

Intentionalists: Radin’s perspective

Answer 3

What are the contents of the legislature’s mind? Congress has a collective intent, and therefore we cannot glean an intent from Congressional action.

Question 4

Purposivists: General/Speluncean

Answer 4

Purposivists look to the general purpose of the statute.

Speluncean explorers: why do we have murder statutes and what purpose do they serve? Are they applicable when they are not serving their purpose?

Question 5

Purposivists: Female Juror Cases/Matter of Jacob

Answer 5

Female Juror Cases: look to the purpose of the law (allow voters to do something) vs. the text of the law (to allow only men to do something because at the time of the bill’s passage only men could vote): downside of looking to the intent of the legislature at the time of the bill’s passage.

Matter of Jacob: the purpose of the bill is to encourage adoptions. Here, we should read the text of the bill so as to effectuate that purpose. Looking into the intent of the legislature is less important or useful.

Matter of Jacob: what is the purpose of the provision, vs. what is the purpose of the whole Act?

Question 6

Textualists: Textualism: TVA v. Hill rule

Answer 6

First, look to the plain meaning of a term or phrase. Use dictionaries contemporaneous with the passage of the statute - this dictionary definition likely provides the ordinary meaning.

The plain meaning, however, may differ from the ordinary meaning using in a technical context. Look to see:

1. Has Congress defined the term
2. Has the term been authoritatively construed by the court?
3. Has the term been authoritatively construed by experts in the field?

Question 7

Textualists: New Textualism: Green v. Bock Laundry

Answer 7

New Textualists look to the plain meaning of a term or phrase, and consider:

1. The meaning most in accord with the context and ordinary usage
2. The meaning most likely to be understood by the whole of Congress
3. The meaning most compatible with the surrounding body of law into which the provision must be integrated.
4. If applying these approaches would create an absurd result, then consider:
   a. Which result would do the “least violence” to the text?
   b. Which result would fit within the surrounding body of law?
5. And as a final, tertiary consideration, do the legislative history materials suggest that Congress intended a departure from the plain meaning? [possibly by adopting a more technical or specialized meaning?]

Question 8

Pragmatists: Pragmatic Approaches: U.S v. Marshall

Answer 8

Easterbrook, in U.S. Marshall considered:

1. The text
2. The ancillary resources (such as the sentencing guidelines and weight tables)
3. The constitutional implications of the ruling.
4. The sentencing implications for the defendant.
5. The statutory provisions for similar drugs.
   a. Whether Congress chose to be specific for certain drugs and not for other drugs.

Question 9

Pragmatists: Pragmatic Approaches: Posner

Answer 9

Posner, also in U.S. v. Marshall, considered:

1. Common sense
2. The most practical approach to the issue confronted, given the ambiguity.

Question 10

Pragmatists: Pragmatic approaches: Breyer

Answer 10

Breyer asks:

1. What is the purpose of the statue?
2. What is the institutional approach?

Question 11

Pragmatists: Eskridge

Answer 11

Consider: the funnel of abstraction (from most concrete to least concrete)

1. Plain Meaning of Text in Light of Whole Act (Casey; Locke; TVA; LSD Case)
2. Authoritative Precedent (Flood; Gilbert)
3. Legislative History (Holy Trinity; TVA; Bock Laundry)
4. Purpose (Holy Trinity; Bob Jones; Chisom; Jacob)
5. Evolution (FDA Tobacco; Chisom)
6. Norms (Bob Jones; Chisom; Jacob)

Question 12

Textualists: Original Public Meaning: Bostock approach

Answer 12

Justice Gorsuch in Bostock considered:

1. The dictionary definition for the term at the time of the time of the statute’s passage.
2. The social norms when the statute was passed vs. the social norms today.
3. The lower court’s precedent/approach.
4. Other, similar Federal code sections.
5. The consequences of the decision (pragmatic approach)
6. The weight of the plain text in comparison to Congressional intent.

Question 13

Overarching Purposes

Answer 13

1. Effectuate the will of Congress (as an agent or as a partner?)
2. Maintain separation of powers’ principles
3. Maintain democratic representational interests.
4. Have predictable, effective, and fair notice.
5. Maintain an objective, independent judicial ideology.
6. Do justice - promote objectives of the legal system