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Legislative and Administrative Process
Southern Illinois University School of Law
Dawson, Edward C.

Statutory v. Common Law

Imagine parents making a rule about which movies children are allowed to watch.

Common law- series of “can I watch this?” decisions

Statute- one rule about what you can and cant watch

Regulation- statute gives some guidance on what can and can’t watch, then agency interprets the statute and issues more specific rules or rulings.

What things can you consider when interpreting a statute?

Usually the sources are documents or words, in some form

But not always, e.g., interpreting a statute to avoid unfairness to a party.

Three types of sources


1). Intrinsic sources

Things intrinsic to the statute itself, as enacted by the legislature
Part of the actual, enacted law


Most importantly, words of the statute
Statutory interpretation always begins w/ words of the statute

Other intrinsic sources

Syntax, punctuation, grammar
Statutory structure
(some) Bill components (Titles, preambles, heading, findings, definitions)

Intrinsic sources-Textual canons

=guideline or presumption about how to read statutory language
intrinsic b/c guides about how to make sense of words; but could argue extrinsic b/c not part of statute itself

Extrinsic sources

Sources beyond the enacted text
i.e., legislative history, subsequent legislative inaction, borrowed statutes, agency interpretations
sometimes controversial
some judges say no to certain kinds of extrinsic sources

Policy-based sources

Policy in law school means values or choices about what’s generally good (or bad)
Policy sources can include policies drawn from the constitution, or common law, or sometimes general equity (fairness)
Guidelines for interpretations rooted in policy
Contrast w/ textual canons- rules about the right way to read language/ words
Examples-constitutional avoidance, rule of lenity, strict construction of statutes contrary to common law, broad construction of remedial statutes

Three Main Theories


Everyone starts w/ text

All three theories start w/ statutory text

Text is the law
Interpretation is search or law’s meaning

Differ on when and how can look beyond text

Textualism: The approach that examines the fewest sources. They look to the text to find “a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law placed alongside the remainder of the corpus juris.”

Sometimes aka “plain meaning”
Text is law
Varieties of Textualism

Important point is understanding textualism as different from other theories

Textualism – Method

Look first to text
Include words, grammar, structure, intrinsic purpose statements
Use tools like dictionaries & textual canons
If intrinsic meaning is plain, STOP
Extrinsic sources only if ambiguity or error in the text
Some versions forbid some extrinsic evidence not matter what

Scalia and Legislative history

Textualism – Arguments for

Contains courts’ power in favor of legislatures’

Preserve constitutional separation of powers

Respect constitutional legislative process

Only the law is voted on and signed

Related: make legislature do its drafting job better
Intent “of legislature” is fiction

Large groups don’t have an intent, they have many different intents
Public choice theory (statutes are resul

Distinction isn’t always clear

Purposivism – Arguments for

Law only has meaning in context of purpose
More sources = better answer
More flexible than intentionalism to meet new issue
Allows justice in particular cases

Purposivism – Arguments against

Too much discretion to “do justice”
Allows “legislating from the bench”
Statutes have many purposes
“Purpose” can be manipulated using level of abstraction
Inappropriate in modern age of complex, detailed statutes

Using Purpose

To resolve ambiguity
To prevent absurdity
To defeat plain meaning

Intentionalism: intentionalists start with the statutory language but also seek to discern meaning from the author’s intent. They attempt to discern intent by perusing all available sources, including, principally, legislative history. They believe that in interpreting language it is imperative to be truthful to the intent of the author, and to do so, one must consult extrinsic sources.when a judge confronts a difficult issue of statutory interpretation (statute unclear or dictates a bad result) the judge should try to reconstruct the likely intent of the legis respecting the problem at hand. “Spirit of the Law”

Focuses on Legislature’s specific intent
Goal of interpretation is to effect intent of author
Courts are “agents of legislature”
Intentionalism – Method

Consider text but also other sources