Term
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Definition
| Always assume the ordinary meaning of the word, or if clear, the technical sense in which it is being used. BENEFIT: Gives notice/stable dependable laws. BE CAREFUL: Statute's preamble, provisos or title, definition sections or even legislative history may indicate a rare usage. Scalia: I'll pull whatever dictionary I want. |
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Term
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Definition
| "It is known from it's associates" - Determine meaning of ambiguous words (not just general terms at the end) by looking at what surrounds them. |
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Term
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Definition
| GENERAL WORDS at the end of lists of specific terms should be narrowly construed through reference to the prior specific terms. |
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Term
| Expresio Unius est exclusion alterius |
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Definition
| The inclusion of one thing indicates the EXCLUSION OF OTHERS. Lists without general terms are exhaustive. Negation of Checkerboard "in pari materia" cannon; more like the 1367 issue, where joinder for plaintiffs is allowed to the detriment of diversity, because of failure to include Rule 20. |
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Term
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Definition
| Antecedent that is NOT SEPARATED BY A COMMA applies only to the previous phrase. WHEN SET OFF BY A COMMA, it MAY MODIFY THE WHOLE PRIOR SENTENCE. |
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Term
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Definition
| AND: Conjunction, red apples AND balloons would mean all red apples, all red balloons. Or: DISJUNCTION, red apples or balloons, would mean ANY RED apples OR ANY RED balloons. MODIFIED BY DEMORGAN'S RULE. |
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Term
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Definition
| NEGATIONS apply differently to CONJUNCTIONS and DISJUNCTIONS. NOT (A and B) means either NOT A or NOT B. NOT (A or B) means NEITHER A nor B, read as NOT A and NOT B. |
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Term
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Definition
| MAY - CAN, some level of discretion. SHALL - MUST, no discretion of the court. |
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Term
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Definition
| ESCAPE HATCH - AVOID ABSURD RESULTS. Scalia would remind you that sometimes we must make Congress responsible for their actions and interpret even to the detriment of the legislative intent. |
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Term
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Definition
| READ THE STATUTE AS A WHOLE -> Presumption of COHERENCE. Look at TITLE, PROVISOS and PREAMBLE. |
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Term
| Rule to Avoid Surplusage/Redundancy |
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Definition
| Presumption that every word or phrase adds something to the command. Therefore, no two words should mean the exact same thing, where there would be no added content. |
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Term
| Presumption of CONSISTENT USAGE and MEANINGFUL VARIATION |
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Definition
| Different words or phrases are USED ON PURPOSE. LIKE WORDS have SAME MEANING THROUGHOUT the STATUTE (or even the whole code!) |
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Term
| Rule Against Interpreting a Provision in Derogation of Other Provisions |
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Definition
| Don't interpret an ambiguous line to conflict with other provisions of the statute |
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Term
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Definition
If a CRIMINAL (sometimes otherwise) statute is AMBIGUOUS then FAVOR THE DEFENDANT (baby kicking). Malum Prohibitum laws TEND TOWARDS LENIENT INTERPRETATION. Malum in Se laws TEND TOWARDS HARSH INTERPRETATION.
Muscarello -> Gun carrying in the car, constitutes satisfaction of statute - seemingly against Rule of Lenity - learn only to apply lenity in rare circumstances. |
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Term
| Constitutional Avoidance Doctrine |
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Definition
| If there is a possible constitutional question involved, avoid it unless EXPLICITLY CLEAR in the TEXT OF THE STATUTE THAT THE CONSTITUTIONAL ISSUE IS THERE AND UNAVOIDABLE. |
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Term
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Definition
| "On the same subject" SIMILAR STATUTES should be INTERPRETED SIMILARLY. Checkerboard Cases - ALL PROVISIONS said ALASKA except 1, so we assume Alaska in the one that is miswritten. HOWEVER - oddly we don't do this for 1367 which misstates what plaintiffs can be joined to the detriment of diversity. If USING THIS ARGUMENT, make sure to INDICATE REASON FOR RELATING THE TWO STATUTES. |
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Term
| Rule Against Implied Repeals |
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Definition
| If a Statute APPEARS to REPEAL or overturn prior law, it should be STATED EXPLICITLY, especially when the prior law is long standing. |
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Term
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Definition
| Look to the whole act and all other acts that are about the same topic (the Code they were set into) |
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Term
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Definition
| Where a statute is copied from another source, we assume the interpretation is the same. This is NOT ALWAYS TRUE, as SOVERIGNS CAN CHOOSE THEIR OWN INTERPRETATION. If the originating state has changed it's view on the law, consider this when interpreting the new state's law. |
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Term
| Law of Equilibrium (Continuity Cannon) |
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Definition
| Unless we see that the status quo interpretation should be changed, we can't change it. |
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Term
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Definition
Old cases and laws may be like a dictionary. Some statutes are meant to evolve like the common law, and fill in any gaps that were present at common law. Look for BROADLY WRITTEN STATUTES when considering this possibility.
SMITH - ELECTORS evolved over time to include men and women, not just men. |
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Term
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Definition
| HEIRARCHY: Text, Conference/Committee Reports, All versions of the bill and any failed amendments, Floor Debate, Hearings, Committee Prints, Presidential Signing Statements. Used in BREYER'S PURPOSIVISM |
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Term
| Subsequent Legislative History |
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Definition
| AFTER INITIAL PASSING, look for CHANCES TO AMEND, LATER RULINGS, and CHANGED CIRCUMSTANCES that AFFECT INTERPRETATION. FDA says it can't regulate cigarettes -> Congress knows (presumably) and DOES NOT ACT -> Ergo, they don't want them to have that capacity. SILVER BLAZE - the dog that didn't bark, it must have known the criminal! |
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Term
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Definition
The court should treat prior decisions as PRESUMPTIVELY correct. PROS: People can rely on what they know and prior decisions; requires institutional competence in the congress, asks them to correct any issues they have. CONS: It's harder in reality for Congress to change the law than for the Court to re-interpret; Courts may be the first parties to identify changed circumstances that should affect interpretation of the law. TVA -> Building a dam, and Wildlife Protection Act would PREVENT BUILDING; Scalia approach, interpreted the law literally, required Congress to make the change. Weakest on Constitutional Issues, and can be overcome by constitutional amendment.
PRO:
1. Reliance
2. Economic
3. Settled Law
4. Retroactivity (Could result in individual owners being held liable).
Con:
1) BAD LAW isn't corrected
2) Legislative Process |
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Term
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Definition
| 1. Statutory Text; 2. Specific and General Legislative History; 3. Legislative Purpose; 4. Evolution of the Statute (Precedent -> court interpretation or amendments); 5. Current policy. |
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Term
| Process of Interpretation |
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Definition
| 1. TEXT - Textual Cannons and Theories of Textualism (NEW and SOFT); 2. Intentionalism - Purpose and Intent, Legislative History, Mischief to be fixed, Purposivism (spirit of the law); 3. Dynamic Theories - updating current values, changed circumstances; 4. Substantive Cannons (Constitutional avoidance, etc) |
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Term
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Definition
| Stare Decisis, Rule of Lenity, In Pari Materia, DISFAVOR REPEAL BY IMPLICATION, DOG THAT DIDN'T BARK, Re-enactment Rule, Use of Common Law as a DICTIONARY, Re-Enactment Rule |
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Term
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Definition
| BASICALLY the same as the borrowed statute rule. "Re-enactment by congress, without change, of a statute which had previously had a specific executive or judicial construction is an ADOPTION by Congress of that construction. |
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Term
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Definition
| Plain Meaning Rule, Noscitur a Sociis, Ejusdem Generis, Expressio Unius, Ordinary Usage Rule, Settled Meaning Rule, Expert Rule, Dictionary Rule, Cocktail Party Rule, Context Matters |
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Term
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Definition
| Punctuation Rules, Last Antecedent Rule, May v. Shall Rule, De Morgan's Rule, The Golden Rule |
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Term
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Definition
| Presumption of Coherence, Title Rule, Preamble Rule, Provisos Rule, Presumption Against Redundancy/Rule Against Surplusage, Presumption of Consistent Usage, Presumption of Meaningful Variation, Rule against interpreting a provision in derogation of other provisions |
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Term
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Definition
| Provisos that RESTRICT or NARROW the statute should be construed narrowly. |
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Term
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Definition
| The title of a statute can be considered to resolve uncertainty, help correct obvious errors |
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Term
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Definition
| Preamble helps discover legislative intent |
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Term
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Definition
| AID not IRON CLAD RULE, but Congress is ASSUMED to follow accepted punctuation standards so that placement of commas and other punctuation is assumed to be meaningful. |
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Term
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Definition
| Defer to experts, including agencies, regarding the meaning of technical terminology |
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Term
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Definition
| Just like rule against interpretation of a provision to the derogation of other provisions. |
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Term
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Definition
TWO STEP PROCESS TO DETERMINING WHETHER TO ALLOW AGENCY TO INTERPRET AMBIGUOUS STATUTE.
Step 1: Is there an ambiguity?
--Has congress directly spoken to the precise question at issue?
@If YES - END OF DISCUSSION, COURT MUST GIVE EFFECT to the UNAMBIGUOUSLY EXPRESSED INTENT OF CONGRESS.
@If NO - CONGRESS MAY HAVE GIVEN
Q2: Whether the Agency's interpretation is BASED ON PERMISSIBLE CONSTRUCTION OF THE STATUTE (is it reasonable?)
--CHEVRON says there can be MORE THAN ONE REASONABLE INTERPRETATION
What if INTERPRETATION CHANGES?
Concern: Predictability
Pro: Allow for changing circumstances, economic efficiency for leniency |
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