Legislation and Statutory Interpretation Law 5745

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Legislation and Statutory InterpretationLaw 5745

• Professor Richard C. Reuben
• Class 11-1
• April 1, 2008

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Pragmatic Statutory Interpretation

• Rejects grand theories like legal process,
  textualism, economics
• Recognizes that judicial decisions based on web
  of beliefs, rather than single-minded point
• Recognizes there can be multiple approaches to
  legislation and multiple sources of interpretive
  guidance
• Urges concrete approach to each case
• Similar to eclecticism, but arguably more
  principled
• Goals of statutory interpretation

William Eskridge
Philip Frickey
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Eskridge FrickeysFunnel of Abstraction
Practical Reasoning

• Purpose To what courts are really doing
• They are consulting all available and relevant
  evidentiary sources, and then making a practical
  decision
• How it works
• Court conducts primary evidentiary inquiries
  before coming to a conclusion about meaning of a
  particular statutory word or phrase
• Looks for evidence in order of persuasiveness
• (1) words themselves
• (2) what legis would have said
• (3) contextual assumptions
• (4) evolution of the statute, and
• (5) best answer for legal
• system in general
• Greater weight given to more concrete inquiries
• Factors are dynamic
• Interpreters slide up, down funnel
• rethinking each factor in light of the other

Current policy
Inquiry concreteness
Stat evolution
Leg purpose
Leg history
Statutory text
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Canons of ConstructionGeneral Types of Canons

• Textual (intrinsic)
• Substantive
• Extrinsic
• All serve as aids to interpret plain language of
  the statute when it is ambiguous
• Are generally subject to higher forms of
  statutory interpretation

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Textual CanonsOrdinary Meaning

• The Canon Courts will generally assume that
  legislatures use words in their ordinary sense
• What do words convey to ordinary person?
• Methodology
• Consult dictionary from what time period?
• Focus on prototypical or core meaning
• Corollary maxim Where word has acquired meaning,
  courts assume that legislature intended acquired
  meaning unless statute otherwise dictates
• Nix Is a tomato a fruit or vegetable?

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Textual CanonsNoscitur a Sociis

• Translation is known from its associates
• The Canon When two or more words are grouped
  together, and ordinarily have a similar meaning,
  but are not equally comprehensive, the general
  word will be limited to and qualified by the
  specific word
• Example Jarecki v. G.D. Searle
• Tax statute permitted carry forwards from
  exploration, discovery, or prospecting
• Question Does discovery include sale of
  products patented by drug mfgr?

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Textual Canons Ejusdem Generis

• Translation of the same kind, class or nature
• The Canon When general words follow specific
  words in a statute, the general words are
  construed to embrace only objects similar in
  nature to objects stated in preceding specific
  words
• Corollary maxim Same result when specific word
  follows general word
• Key Concept Specific words dominate!

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Esjudem Generis An ExampleHeathman v. Giles
(Utah 1962)

• Key facts
• Plaintiff sued prosecutor for false arrest
• Trial court dismissed because plaintiff didnt
  file a bond
• Statute required bonds for actions against any
  sheriff, constable, peace officer, state road
  officer, or any other person charged with the
  duty of enforcement of the criminal laws of this
  state. . .
• Question Was the trial court correct under the
  principle of esjudem generis?

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Expressio Unius Est Exclusio Alterius

• Translation The inclusion of one thing indicates
  the exclusion of another.
• The Canon The enumeration of specific terms in a
  statute indicates it intended not to include
  other potentially includable terms.
• Example I tell my son, Patrick, that he can not
  hit or kick his brother, Daniel.
• But . . . Can Patrick bite Daniel?

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Textual Grammar CanonsPunctuation

• The Canon Punctuation generally is not part of
  the statute
• English Rule Commas dont count!
• American Rule Grammar may be used as aid to
  interpretation as last resort (still disfavored)
• Semi-colons vs. commas
• Example Tyrrell v. NY (NY 1899)
• Salaries for street cleaners shall not exceed
  the following of the section foremen, one
  thousand dollars of the hostlers, seven
  hundred and twenty dollars each, and extra pay
  for work on Sundays.
• Q Is a foreman entitled to extra pay for work on
  Sunday?

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Textual Grammar CanonsThe Last Antecedent Rule

• The Canon Qualifying words, phrases, clauses,
  and provisos are to be applied only to the
  immediately preceding antecedent unless the
  statute indicates a contrary intent
• Antecedent defined A word, phrase, or clause,
  usually a substantive, to which another word
  refers
• E.g. Jane lost a glove and she can't find it
• , Jane is the antecedent of she and glove is the
  antecedent of it.
• Example Statute prohibits sale of alcohol
  between 11 p.m. and six in the morning or
  during the Lords day, except that an inkeeper
  may supply such liquor to guests.
• Innkeeper wants to sell liquor to guests between
  11 p.m. and 6 am.
• Will the Last Antecedent Rule apply permit these
  sales?
• Proviso Rule sometimes relaxed if qualifier set
  off from a series of items by commas

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Textual Canons And and Or Conjunctive vs.
Disjunctive Connectors

• The Canon Words connected with an or are read
  to have different and independent significance.
  Words connected with an and are read to have
  related and dependent significance
• Example Garcia v. U.S. (P.827)
• 18 USC 2114 bars assault with intent to rob
  any person having lawful charge, control, or
  custody of any mail matter or of any money or of
  any other property of the United States.
• Question Does the robbery of an undercover
  Secret Service agents flash (spending) money
  fall within the statute?

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Textual Canons May and Shall Mandatory vs.
Discretionary Language

• The Canon The use of may indicates discretion
  while the use of shall does not permit
  discretion.
• Example Uniform Mediation Act provides the
  following privilege
• (b) (1) A mediation party may refuse to
  disclose, and may prevent any other person from
  disclosing, a mediation communication
• Troubling example Uniform Mediation Act provides
  
• (c) A mediator may not be compelled to provide
  evidence of a mediation communication referred to
  in subsection (a)(6) or (b)(2).

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Textual CanonsMale/Female and Singular/Plural
Forms

• Examples of ordinary rules of construction that
  are not followed
• The Female/Male Canon Male forms include the
  female, and visa versa, unless the intent of the
  statute indicates otherwise.
• Ordinarily would interpret female to mean female
• The Singular/Plural Canon Singular forms apply
  to plural situations, and visa versa, unless the
  intent of the statute indicates otherwise.
• Ordinarily would interpret singular as singular

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Textual CanonsThe Golden Rule

• The Canon Courts should adhere to the ordinary
  meaning of the words used, and to grammatical
  construction, unless that leads to manifest
  absurdity.
• However, such departure shall be narrowly
  tailored to correct the absurdity, and no more.
• Example Admiralty statute requires purchasers of
  vessels to register immediately
• Chief Justice Marshall allowed exception for
  vessel purchased at sea (Willing v. U.S.)