Legislation and Statutory Interpretation Outline

PART 1: STATUTORY INTERPRETATION
                                                                                                                 
I.      Steps to analyze a Statutory Interpretation Problem
a.       Find relevant language and put spotlight on it
b.      What type of statutory interpretation problem is it
                                            i.      Meaning?—plain meaning, dictionary, common usage, dictionary act
                                          ii.      Gap?—in pari material
1.      analogy
                                        iii.      Conflict?—later enacted/specific prevails over earlier/general, specific prevails over general, nondiscretionary prevail over discretionary
 
II.      Statutory Interpretation Arguments and Approaches
a.      Three families of statutory interpretation
                                            i.      Textual: follow what the text says
1.      R.W.: a judge who uses the plain meaning rule and thinks that they are only applying the law is still doing something “very substantial.”
                                          ii.      Intentional: find out generally what the legislative intent or purpose is
                                        iii.      Dynamic: permits courts to change their view of the statute over time
1.      Helped by cannon-based arguments—judges make up rules or choose rules to get a statute to say what they want
                                        iv.      R.W.: you can never have a single approach to statutory interp., so one needs a “contextual theory” of statutory interp.
b.      List of approaches for interpretation (Aristotle, p.458)
                                            i.      Text
1.      If the text goes for you, use it
2.      The words of the legislature (textual)
                                          ii.      Intent and Purpose
1.      If the text goes against you, insist on greater equity and justice
2.      What the legislature was trying to accomplish (intent)
                                        iii.      Canons
1.      Judge makes maxims of interpretations
2.      Can be split into text/purpose
                                        iv.      Institutional Competence
c.       Policy interpretation—MacMillan v. Director: cannot reach for principles of equity and common sense when it is obvious that a statute does not cover the litigants in this situation—the statute is not ambiguous. Judge cannot succumb to humanistic pressures—must follow legislative design.
d.      By analogy—can argue statutes by analogy if they are related.
                                            i.      Statutory analogy can provide a useful alternative to extensive interpretation by providing courts with a degree of flexibility in choosing the premises from which to reason.
 
III.      Statutory Interpretation Based on Text
a.       “Plain Meaning” Rule—where the language is clear and construction does not lead to an absurd or impracticable result, the words are to be taken as the final expression of the meaning intended.
                                            i.      Stop at Plain Meaning when text is clear— when words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to or subtracted from by other evidence such as legislative history.[1]                                           ii.      Do not Stop at Plain Meaning even when text is clear—see following sections
b.      Dictionary—dictionary can also show what the legislature meant because it is assumed they use terms in their ordinary usage in a statute.[2] An undefined word is determined by its common usage.[3] 
c.       Cross References— Often, the text of a statute (“referencing statute”) adopts the provisions of another statute (“referenced statute”). 
                                            i.      Amendment of the Referenced Statute— What happens when the referenced statute gets amended and codified (codification masks the original, un-amended text)?
1.      No Change—Specific reference: when a reference statute specifically designates the section or article of the statute of which it is made a part, such reference statute will not be changed or modified by any subsequent change in the statute to which it refers.[4] 2.      Change—General reference: when the reference statute pertains only to a method of procedure and refers generally to some statute which defines how certain things may be done, such referenced statute will be changed accordingly.
3.      No canon—some courts prefer to use the legislative intent.[5] d.      In Pari Materia— Rules or parts of rules are in pari materia when they relate to the same proceedings or class of proceedings and shall be construed together, if possible, as one rule or one chapter of rules.[6]                                             i.      The goal is to interpret statutes consistently as they appear on the legislative landscape.
e.       Analogy—can argue statutes by analogy if they are related.
                                            i.      Statutory analogy can provide a useful alternative to extensive interpretation by providing courts with a degree of flexibility in choosing the premises from which to reason.
f.       Statutory Conflict—when two or more statutes are in conflict.
                                            i.      STEP #1: Conflicted statutes should be construed to give effect to each. 
                                          ii.      STEP #2:
1.      If conflict irreconcilable:
a.      Later governs earlier
b.      Specific controls the general: “a specific statute will be given effect over a more general one applicable to the same situation.”
2.      Type of Amendment:
a.       Amend by implication—when a later specific statute takes the place of a provision in an earlier broader statute.[7] b.      Express repeal—when the newer statute expressly repeals the earlier one.
c.       “Repeal by implication”—a law is found by the courts to have been “repealed,” by the clear “implications” of a later law that renders the earlier law moot. Specifically, the two laws must be found to be incompatible to such an extent that they both cannot have legitimate application at the same time. Therefore, the courts presume that the most recent law is supposed to be paramount and repeals the older law.[8]                                                                                                                     i.      R.W.: Such cannons can give courts too much latitude in deciding which statutes take priority. See district court in Ely, in which it applied “the last enacted” cannon to one statute, but not to another statute.
g.      Legislation by Appropriation—(only good for 1 yr) occurs when Congress changes substantive law through passage of an appropriations bill, rather through the usual substantive enactment. In other words, congress makes substantive changes by embedding substantive law in an appropriations bill.
                                            i.      Repeal
1.      Appropriation Repeal—text in appropriation of a bill that speaks directly to the issue.[9] a.       Congress can even effect pending cases by legislation by appropriation. See Robertson.
2.      No Appropriation Repeal—no text in appropriation of a bill that speaks directly to the issue.[10] a.       State Legislatures—some states note that a substantive bill, that modifies or adds onto the provisions of the text in the body of the statute, cannot be attached to an appropriations bill. See Flanders v. Morris. Could there be just a provision saying we are not funding a project like in FOE?
                                          ii.      Federal—can attach riders onto appropriations bills\
                                        iii.      State—most state constitutions provide that riders cannot be attached.
 
IV.      Legislative Intent, Purpose, Context and History
a.      Purpose, Intent, and Context
                                            i.      Purpose—the statute is interpreted to give effect to its purpose.[11] 1.      Where the language is susceptible of more than one meaning, it is the duty of the courts to accept that intended by the framers.
                                          ii.      Intent—a court will peel back the layers of a statute to see which direction the amendments point in order to determine what the legislature intended.[12]                                         iii.      Context—court determines what the legislature intended by looking at the rest of the statute.[13] b.      Legislative History—the evidence the legislature leaves behind, besides the text, which may reveal its intent. Congressional legislative history is the most complete of all the legislatures in the country.
                                            i.      Hierarchy of Sources—in ascribing weight to the materials, give greater weight to materials that are shown by the record to have been considered by the legislature or the administrative agency. The Court has ranked these sources:
1.      Committee Reports [most authoritative] 2.      Sponsor statements
3.      Rejected proposals
4.      Floor & hearing colloquy
5.      Views of Nonlegislator drafters
6.      Legislative inaction
7.      Subsequent Legislative History [least authoritative]                                           ii.      Two views when the language is clear—the legislative history cannot rebut the text if it is clear. If the text points in one direction and the history points in another, always choose text.
1.      Use Legislative History—sometimes congress does not foresee all instances before the court so it is up to the court to determine the spirit of the law and help perpetuate legislative intent.[14] 2.      Don’t Use Legislative History—“New Textualism”—look only at the text when the statute is unambiguous and clear. Scalia prefers “tools of statutory interpretation” like canons.
a.       Errors in interpreting legislative history—criticisms:[15]                                                                                                                     i.      “Congress conveys its directions in the Statutes at Large, not in excerpts from the Congressional Record, much less in excerpts from the Congressional record that do not clarify the text of any legislative proposal.” Begier Case.
                                                                                                                  ii.      “Use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” J. Leventhal.
                                                                                                                iii.      Vermule Article: “interaction between distinctive feature of legislative history and structural constraints of the adjudicative process may indeed cause legislative history to reduce rather than increase judicial accuracy.”
1.      Errors of information—when the court lacks, or fails to seek full information about the materials in the legislative history.
2.      Errors of evaluation—when the court has all the material but mistakes the significance of material in the legislative history due to constraints of time, background expertise, or other processes.
                                        iii.      State Legislative History
1.      State materials are often much more difficult to obtain than federal
2.      Legislative Journals (not law journals)
a.       Very bare bones; very boring
b.      Contains legislative history of the state legislature
c.       Can contain certain reports, such as conference committee reports
d.      Often contain other relevant materials to the statutes such as voting results
3.      Hatter v. Landsberg (p.689)—PA Sup Ct case says that you cannot rely on what is said on the floor for formulating legislative intent (n.4, p.692)
                                        iv.      Post-Enactment Legislative History—subsequent legislative history; events occurring after a statute’s enactment is part of the legislative history used to interpret a statute.
1.       
 
V.      Judicially Created Canons, and Assumptions
a.       Canons—involve assumptions of a legislative approach in drafting legislation rather than assumptions of legislative consideration. They are least convincing of all statutory arguments.
                                            i.      Criticisms—There are at least two competing canons on almost every point. Llewellyn.
                                          ii.      Types—there are two types of canons. Alinikoff. Probably accounts for Llewellyn’s criticism.
1.       “Plain meaning”
a.       e.g.: A statute cannot be read beyond its text
b.      e.g.: If the language is plain and unambiguous it must be given effect.
2.       “Purpose”
a.       e.g.: To effect its purpose a statute must be read beyond its text
b.      e.g.: Not when a literal interpretation would lead to absurd or mischievous consequences or thwart its manifest purpose.
                                        iii.      Textual Canons
1.      Expressio Unius—the expression of specific terms implies exclusion of all others. Assumption that the legislature considered all options and chose not to include them
a.       Approved[16] b.      Rejected[17] c.       USRCA—canon is of little practical use and can only be used if the list seems exhaustive.
2.      Ejusdem Generis—when specific words follow the general words, the general words must be of same type as the specific words.
a.       Approved[18] 
b.      Exceptions