Legislation and Statutory Interpretation Law 5745

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Legislation and Statutory InterpretationLaw 5745

• Professor Richard C. Reuben
• Class 11-2
• April 2, 2008

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Textual Canons

• Ordinary Meaning
• Noscitur a Sociis
• Esjudem Generis
• Expressio Unius Est Exclusio Alterius
• Punctuation Canon
• The Last Antecedent Rule
• Conjunctive vs. Disjunctive Connectors
• Mandatory vs. Discretionary Language
• Male/Female and Singular/Plural Forms
• The Golden Rule
• The Whole Act Rule

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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 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 and are read to have
  related and dependent significance
• Words connected with or are read to have
  different and independent 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
• Example Uniform Mediation Act provides
• (a) Before accepting a mediation, an
  individual who is requested to serve as a
  mediator shall
• (1) make an inquiry that is reasonable under
  the circumstances to determine whether there are
  any known facts that a reasonable individual
  would consider likely to affect the impartiality
  of the mediator
• (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 lay 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
• Holy Trinity
• Chief Justice Marshall allowed exception for
  vessel purchased at sea (Willing v. U.S.)

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Textual CanonsThe Whole Act Rule

• The Canon When interpreting a statute, a court
  should construe particular statutory provisions
  in light of the statute as a whole
• Assumes statute is internally coherent
• Corollary maxims
• Titles cannot control, but long titles may be
  used to resolve ambiguities
• Preambles and purpose clauses -- cannot control,
  but may be used to resolve ambiguities
• Have greater force with Legal Process analysis
• Provisos qualifiers that restrict scope of
  statute
• E.g. Liquor statute in Last Antecedent Rule slide
  (Except that)
• should be narrowly construed

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Whole Act RuleCorollary Maxims Continued

• Rule of consistent usage Words presumed to have
  same meaning throughout statute
• Principle can be extended to other statutes as
  well
• E.g. EAJA use of term justified defined by
  reference to how justified was used in other
  statutes, FRCP (p. 866)
• Corollary Change in terms implies change in
  meaning
• Less force when adopted at different times
• Rule to avoid redundancy (against surplusage)
  Every word in statute for a reason
• At odds with pragmatic realities of drafting
• Rule against derogation Provisions of statute
  should not be interpreted in a way that derogates
  -- or diminishes -- other provisions of same
  statute
• Operational derogation provisions cant be
  complied with at same time
• Philosophical derogation might suggest
  legislative compromise that would counsel in
  favor of a narrower reading of the provisions
• Structural derogation provision is at odds with
  overall structure of the Act

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Babbitt v. Sweet Home Chapter of Communities for
a Great Oregon (1995)

• Key Facts
• 9 of Endangered Species Act makes it unlawful
  for any person to take any endangered species.
• 3(19) defines take to mean harass, harm,
  pursue, hunt, shoot, wound, kill, trap, capture,
  or collect, or to attempt to engage in any such
  conduct.
• Interior Department regs
• further define harm to include
• significant modification or
• degradation of habitat
• Timber industry and farmers
• challenged validity of regulation,
• specifically as applied to protect
• the spotted owl and red-cockaded
• woodpecker
• Question How does majority,
• dissent analyze the statute?

Spotted Owl