A judicial philosophy that relies heavily on the text of a statute.

Judges/justices using this approach limit the sources they will use to interpret a statute. Believes that Congress values legislative compromise.

Does not believe that courts have the authority to look beyond the text.

Plain-meaning approach is first.

Begins with textualist approach,

but when ambiguity or apparent contradiction arises they will use

some purposavists approaches,

but in a much more limited way.

This is the modern trend.

ORDINARY MEANING v.

TECHNICAL MEANING

Ordinary meaning -

the meaning of a word as it would be understood to a typical speaker

of the words language.

(man on the street meaning).

Technical Meaning -

within many trades and professions, words are given an intrinsic or special meaning. This Technical Meaning is sometimes used in statutes.

Committee reports

conference committee reports

floor debates

Committee hearing notes

Amendments to the statute

prior drafts of bill (unpassed versions)

"rules of thumb" that judges will rely on to clarify the meaning of a statute.

Typically they are given Latin names, probably so that they will be more respected.

A theory that the law is moving in a specific way according to the changing values of society.

Under this theory a judge can rule in favor of where the law is evolving to.

1. Text and Title (of statute)

2. Other statutes

3. Dictionary

4. Legislative History

5. Committee hearing notes

6. Events in history around the

time of the bill passing

7. public opinion

8. legal coherence

9. scholarly writings

10. policy considerations

11. canons of construction

1. Text

2. dictionary

3. Other statutes

4. Canons of Construction

Standards:

more general and offer courts much liberty in interpreting

RULES:

Are very specific and limit a courts interpretation, however rules do tend to be both over and under inclusive.

COLLOQUIAL MEANING v.

DICTIONARY MEANING

most judges agree that a dictionary definition of a word in question is a good starting point; it is also argued that the most common or colloquial meaning would be more advisable.

It is commonly agreed that dictionaries have limitations for interpretation.

a well established principle of statutory interpretation that holds that a statute should not be construed to create an absurd result.

So a law that reads as absurd must be interpreted to mean something different.

A case commonly referred to when addressing the "absurdity" question.

Kirby was a sheriff charged with "interfering with the delivery of the U.S. Mail" because he arrested a mail carrier who was wanted for murder.

GENERAL DYNAMICS LAND

SYSTEMS, INC v. CLINE

A SCOTUS case dealing

with age discrimination.

Federal law protects elderly workers in Title 7, and it classifies this group as workers 40 and over. Here GE

eliminated retirement benefits for all employees age 49 and younger.

Lawsuit was brought on by employees age 40-49 claiming they were being discriminated against for their age.

SCOTUS determined that the term "age" within the law meant "old age." The company was able to keep its new policy.

A SCOTUS case concerning the ability to shift expert witness fees as a portion of "attorney fees."

The majority cited dozens of prior cases and ruled that expert fees are separate from attorney fees.

A principle of Common Law that holds that a word used in a statute would be used consistently, unless specifically stated otherwise.

The exception is that consistency is not applied if it would cause the purpose of the legislation to change.

There are many criticisms of legislative history, a few are:

1. it is often contradictory, and subjected to "cherry picking."

2. much of it is easily manipulated "after the fact" by members of congress wishing to influence the courts

3. Congress is a body people, not an individual - therefore it cannot have a single purpose.

4. Committee Reports are probably never read by the majority of congress.

5. Legislative History has not survived the bicameral and signature process.

Dictionaries cannot reflect the purpose that Congress intended for the statute.

Strict adherence to text and dictionaries is seen as making courts unnecessary - because no judgement is needed in this type of process.

TYPES OF LEGISLATIVE HISTORY

THAT COURTS MAY USE:

*The history of changes and amendments

*rejections to changes and amendments

*reports by committees stating the purpose of the bill

*Remarks made during the debates on the floor of congress

*Conference Committee reports

A Semantic Canon of Construction is used to determine the specific meaning intended for a word within a bill, these are neutral canons.

Substantive Canons of Construction are principle based canons that are explicitly not neutral.

1. it has convinced the courts to devote more of its time and energy to the analyzing of text.

2. it might inspire courts to avoid reliance on legislative history when the text is clear.

3. it might induce the courts to be "more critical" of the legislative history that it does use.

1. Ejusdem Generis -

"of the same type" this will limit the meaning of a "catch all" word or phrase that accompanies a list of like items.

2. EXPRESSIO UNIUS - "Inclusion/Exclusion rule" where a statute provides an enumerated list, and does not include a "catch all," the provided list of items is the complete list that will apply to the circumstance.

3. NOCSITUR A SOCIIS -

"a word is known by its associates" a word can be understood by words around it. (Use the context of the statute to understand the words within it).

4. PARI MATERIA -

"of the same subject" when two statutes address the same subject a word contained within both statutes can be used to explain the meaning from one to the other.

(i.e. We should use the word here,

like it was used there).

5. PRESUMPTION AGAINST

SUPERFLUOUS LANGUAGE -

every word in a statue should be necessary and have a purpose other than repetition.

6. LENITY DOCTRINE -

if a statute can be read in two separate ways, and it is a criminal law, the court should rule in favor of the defendant and not the government.

7. THE RULE OF THE

LAST ANTECEDENT -

unless clearly specified by the congress, a modifier will only apply to the last antecedent in a preceding list.

Enacting Clause

Purview

Long Title

Short Title

Preamble

Findings Clause

Purpose Clause

Section Titles

Definition Sections

"of the same type"

This canon is used to limit or restrict the meaning of a "catch all" word that is connected to a list of like items.

"Inclusion/Exclusion" rule

If a statute gives a list (of exceptions or affected items/parties) within a statute, it is considered to be a "complete list" unless otherwise stated.

"a word is known by its associates"

Using the words within the statute, or sentence of the statute, to determine the meaning of a word.

(Basically it implies the use

of context clues).

Many judges believe that inaction by congress is the same thing as approval.

This is a controversial theory, and does not account for the difficulty that legislative correction involves.

If the legislature uses the same language in a statute that has been used in prior statutes, it is likely evidence that congress is aware of the current interpretation of the language and intends it to be used in the same way it has already been used.

This is a stronger argument than acquiescence, but faces many of the same criticisms.

"an abundance of caution"

An assumption that congress was using

an extreme amount of caution in

writing a law

(in that they were considering

for many particular situations

that may arise).

A word or phrase should be given the same meaning throughout a statute unless expressly stated otherwise.

(this is similar to Pari Materia, but on a smaller scale).

PRESUMPTION AGAINST

SUPERFLUOUS LANGUAGE

A long and descriptive title that usually describes the bill's general purpose.

It tends to be just before

the enacting clause

Therefore it does not have

"the power of law".

Courts tend to treat long and short

titles with the same deference,

which is very little.

Titles are typically only considered if the statute is ambiguous.

GLOBAL DEFINITION v.

SPECIFIC DEFINITION

Global Definition -

"for the purpose of this Title, X means Y"

SPECIFIC DEFINITION -

"For the purpose of this

(section/sub-part/etc.) A means B."

EXECUTIVE AGENCY v.

INDEPENDENT AGENCY

Executive Agency is under the Executive branch of the government. President nominates the head of the agency.

Independent agencies are not responsible to executive branch, usually a board is established that will hire head of agency.

Article 1: Legislative Power - power to create laws

Article 2: Executive Power - power to enforce the laws.

Article 3: Judicial Power - power to resolve the disputes of the law.

AGENCY AND A NON-SEPARATED

POWER STRUCTURE

Many agencies:

1. write or create regulations,

2. enforce the regulations,and

3. resolve conflicts within the regulations

(although sometimes they are

subject to judicial review)

AGENCY REGULATIONS ARE

LOCATED WHERE?

C.F.R. -

Code of Federal Regulation

1. They are comprised of experts with technical expertise

2. They enforce their own regulations and can thus acquire information easily - and can fine tune the law quickly.

3. Agency is not bound to a cumbersome legislation process, and can dedicate more time to solving problems.

4. Few political pressures and restraints.

1. They can lead to proliferation

of bad laws

(laws are difficult to pass for a reason)

2. It is anti-democratic

3. Allows legislature to evade accountability in dealing

with unpopular laws.

4. A flood of over-burdensome laws is harmful to a free society.

1. Agencies are accountable to Congress because Congress can:

A) amend the authorizing statue

    (unlikely)

B) decrease or eliminate the agencies

    budget

C) Hold oversight activities such as an

    agency hearing

Agencies are accountable

to POTUS because:

A) POTUS appoints agency heads

    (congressional approval required)

B)Can remove the head of certain

    agencies

C)POTUS has O.I.R.A. office that does an

   annual review of all agencies to find

    out the agencies goals, and make sure

    the goals are distributed to all

    affected parties.

Agencies are accountable to

the Judiciary because of:

A) Judicial review

B)Administrative procedures

The mandatory processes of Agencies benefits public by:

1. making agency somewhat

accountable to the public,

2. giving proper notice to

public of agency actions,

3. requires at least some justification

for agency decisions.

Procedures are bad because:

1. the ossification of the agency, or the slowing down of their ability to make regulations.

1. Formal Rule Making - the formal process requires an adversarial hearing before agency judge. This is a difficult and cumbersome process, and is very rarely used.

2. Informal Rule Making- there are 3 requirements (1) Notice, (2) Comment, and (3) Statement of Basis and Purpose. This is a common process.

3. Interpretive rules

(or policy statements)

these lack the force of law.

*Good Cause exemption also exists, but a court may review these regulations for proper application.

SCOPE OF JUDICIAL REVIEW

(OVER AGENCY REGULATIONS)

1. strike down unconstitutional laws

2. strike down laws that are contrary to authorization statute

3. Strike down procedurally defective regulations, and

4. strike down arbitrary and capricious regulations.

Court may find a regulation arbitrary and capricious if:

1. Agency entirely failed to consider an

    important aspect of the problem.

     A) They need not respond to every

         comment or alternative that is

         brought, but they must respond to

         all serious ones.

     B) the responses must be substantive.

2. Agency has relied on factors which congress has not intended it to consider.

3. The agency has "offered an explanation for its decision that runs counter to the evidence before the agency, OR is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

Because the "Hard Look" or "Paper Hearings" that notice and comment cause is difficult and time-consuming, the agencies have tended to use alternatives to this process:

1. good cause exemption

- for emergency regulation making

2. Policy Statements

3. Interpretive rules

This is a public declaration by agency announcing its agenda, priorities, or plans of enforcement.

*It offers the public a benefit of notice as to agencies probably future behavior,

*But it does not have the force of law.

FORCE OF LAW TEST

(FOR POLICY DECISIONS)

Policy statements must be "enforced" without the force of law -

thus the subsequent decisions must be made as if the statement had not ever been made.

*Also the policy statements must be flexible by using words like "prefers," "proposes," or offering exceptions.

When reviewing a policy statement for the purpose of evaluating if it has the "force of law" one factor is whether or not the regulation has a "binding effect."

If regulation has a binding effect on the agency, or on the regulated parties, then it is considered to have "force of law" and must go through Notice and Comment.

DEFERENCE TO AGENCIES

(THE SKIDMORE APPROACH)

Historically courts have used the multi-factor approach.

1. Power to persuade standard

(as long as the agency's

reasoning is persuasive and

consistent, it is accepted)

2. Court could not reasonably

interpret statute using its standard

tools of interpretation,

3 Agency had long interpreted

the statute consistently

4. Highly Technical subject matter.

5. Issue being determined is not substantial

Chevron established a two step process for reviewing agency rules.

Step 1: does the statute speak to the precise question at issue? If so then statute is law. But if not,

STEP 2: is agency's interpretation reasonable? If so it gets deference.

*Largely if court gets past step one, then the agency will be given deference.

SKIDMORE (Hard Look)

addresses questions of fact.

So any regulation passed by N&C that are challenged as to their reasonableness.

CHEVRON

addresses questions of Law.

As a matter of law,

does the agency have the authority

to make the rule?

According to Lucas (in class)

10 m/c questions and 1 essay.

1. Write the issues as you see them

2. Order the issues

3. Fill in the gaps.

Consider:

absurdity doctrine

nocitur a soccii

edjusem generis

lenity doctrine

in parri materia

plain meaning rule

rule of surplusage

terms of art

policy issues

( unless specific asked about,

just touch and go on these)

ESSAY STRUCTURE

(if asked to review a fact

pattern to a statute).

Overall Issue: is x guilty of Y. . . X's

argument:

1. relying on the text . . .

2. is the text is ambiguous . . .

3. Is the statute absurd. . .

4. Legislative History. . .

5. If all else fails, rule of lenity

STATE'S ARGUMENT:

1. Text is clear. . .

2. The defendant's reading is inappropriate because of

(canon, leg hist, whatever)

3. Absurdity Docrine

4. Purpose of the statute.

Conclusion

(Case is a slam dunk/or a close call, because. . .)

Congress must delegate authority in order to consider Chevron.

Notice and Comment is a sign of delegated authority, but without N&C SKIDMORE is probably necessary.

*But is said that it is not always necessary, it just doesn't explain when.