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Statutory Interpretation
St. Johns University School of Law
Krishnakumar, Anita S.

Statutory Interpretation – Krishnakumar – Spring 2014
I. Textualism
A. Textualism
Text is law, ordinary meaning of words applies
1.    Rules
a.     Ordinary meaning of text (connotation over denotation) vs. literal meaning or terms of art
b.    In statutory context look at other sections and other statutes vs. legislative history
c.     Argument about what type of context should be examined, not whether or not to use context
2.    Main types of meaning/Use of dictionaries
a.     Ordinary or colloquial meaning ( Nix–tomato)
b.    Presumption ordinary meaning applies unless reason to think otherwise
c.     Literal meaning or denotation (Smith—“use a gun”)
d.    Specialized or “term of art” (Moskal—falsely made)
3.    Rationales for textualism
a.     Article I section 7—constitutionally specified procedures for lawmaking
b.    Text is the law—that’s what the legislature has voted on, the vote is legally effective regardless of legislative intent
c.     Text is the best evidence of purpose/intent (it doesn’t mean only)
d.    Multiple purposes/compromise
e.     No purposes—statutes emerge from intersection aims of multiple actors, could be the case that the statute that emerges isn’t what any part would have unilaterally chosen so there is no collective purpose behind the legislation.
4.    Judicial Role
a.     Legislature has power to change laws, judges don’t
b.    Ex ante incentives
B. Textual Canons
1. Plain Meaning
a. follow the plain meaning of the statutory text, except when textual plain meaning requires an absurd result or suggests a scrivener’s error.
2. Linguistic Inferences
a. Expressio (or inclusio) unius
expression of one thing suggests the exclusion of others. Inapplicable if context suggests listing is not comprehensive. [Useful with lists]  
b. Noscitur a sociis
interpret a general term to be similar to more specific terms in a series. Often not helpful when applied to a technical statute whose details were hammered out through a complex process.
c. Ejusdem generis
interpret a general term to reflect the class of objects reflected in more specific terms accompanying it. Ejusdem might be trumped by other canons, such as the rule against redundancy.
d. Other rules
1. Plain/Ordinary Meaning:
a. Follow ordinary usage of terms, unless Congress gives them a specified or technical meaning.
b. Where Congress uses terms that have settled meaning, either by common usage or through the common law, interpreters should apply that settled meaning.
c. A statute has a plain meaning if you’d use its terminology at a cocktail party and “no one would look at you funny.”
3. Technical Terminology:
a. Defer to experts, including agencies, regarding the meaning of technical terminology.
4. Dictionary Definitions:
a. Follow dictionary definitions of terms, unless Congress has provided a specific definition.
b. Consider dictionaries of the era in which the statute was enacted. For Technical terms, consult specialized dictionaries. Do not credit nonstandard, “idiosyncratic” dictionary definitions.
5. Rules of Construction Act, 1 U.S.C. § et seq., contains default definitions that apply if Congress fails to define a particular term.
3. Grammar & Syntax
            a. Punctuation:
1. Congress is presumed to follow accepted punctuation standards, so that placements of commas and other punctuation are assumed to be meaningful.
            b. Grammar:
                        1. Congress is presumed to follow accepted standards of grammar.
            c. Last Antecedent Rule:
1. Antecedent: a word or phrase that is represented by another word (such as pronoun).
2. Referential and qualifying words or phrases refer only to the last antecedent, unless contrary to the apparent legislative intent derived from the sense of the entire enactment. Do not have to apply this rule if not practical.
            d. “May” vs. “Shall”:
1. “May” is usually precatory (expressing wish or request) and connotes decision-making discretion, while “shall” is usually mandatory and suggests less discretion.
            e. “Or”:
                        1. “Or” means in the alternative.
4. Whole Act Rule (Textual Integrity)
            a. Basics:
1. Each statutory provision should be read by reference to the whole act. Statutory interpretation is a holistic endeavor.
                        2. The statute’s preamble may provide clues to statutory meaning, as may the title.
            b. Consistency:
1. There is a presumption of statutory consistency. Interpret the same or similar terms in a statute the same way. Presumption rebutted when other evidence suggests Congress was using the same term in different ways.
2. Avoid interpreting a provision in a way that is inconsistent with:
i. the overall structure of the statute, or
ii. with another provision, or
iii. with a subsequent amendment to the statute, or
iv. with another statute enacted by a Congress relying on a particular interpretation.
            c. Redundancy:

n is at its height when the agency decides not to enforce a statute.
                       v.          For Chevron Purposes, whether Congress has delegated the agency lawmaking authority is itself a matter of statutory interpretation. Presumption against congressional delegation of authority for agency to make fundamental changes in the statute. The Court demands a clear statement authorizing agency constructions that press the envelope of constitutional validity.
                     vi.          Where Supreme Court decision follows an agency interpretation filling a gap in the law left by Congress (Chevron), a revised agency interpretation through rulemaking is not barred by stare decisis.
c.     Step Zero—question of whether we’re in the Chevron framework at all.
                         i.          Type of statute—agencies only get deference on their own organic statute
                       ii.          Mead—decides whether to apply Chevron or Skidmore
1.    In Skidmore deference unless affirmative showing of congressional intent to delegate power to make rules with force and effect of law
2.    “spongy” totality of circumstances test
a.    Heightened procedure proxy for congressional intent but neither necessary nor sufficient
b.    Also look at organic statute, level of decision-maker in agency
d.    Step One -Has Congress has spoken to the precise question at issue? Gap or ambiguity
                         i.          Use traditional tools of statutory interpretation (Cardoza Fonseca)
                       ii.          Breyer view—look at whether Congress would have wanted to delegate to agency (Sweet Home footnote)
                     iii.          Major Questions Canon– Congress assumed not to have delegated to agencies questions of far reaching economic and political significance unless specifically state it (MCI & Brown)
1.    Non-delegation canon can work for or against Chevron (Mass v. EPA)
2.    Scope of agency action can help determine whether a “major question” (Mass v. EPA)