LEGISLATION OUTLINE- Howarth
University of Dayton School of Law Fall 2008
Keyed to: Cases and Materials on Legislation, Statutes and the Creation of Public Policy (2007)
PRESENT BOTH SIDES OF THE ARGUMENT IN THE EXAM. Start out with textualism (give both arguments), then go to intentionalism specific intent then imaginative reconstruction (give both sides for both pieces), then go to purpose approach (give both sides). Don’t repeat the rules of law in each section, just say it once. However, repeat it if it’s a different essay question.
– Substantive Provisions of a Statute (what a statute is made up of)
o Definitions of unfamiliar words and terms of art
o Substantive provisions setting forth rights and duties, together with defenses and exceptions
o Administrative and procedural provisions, including identification of agencies and departments charged with enforcing or creating rules under proposed statute
o Sanctions and enforcement provisions
o Miscellaneous provisions, such as those providing for transitional rules before the proposed legislation takes full effect, for rules of construction to guide courts, or for ongoing congressional oversight
o Effective date
– 5 kinds of legal proceedings in which statute interpretation problems arise:
o Courts hearing public law enforcement suits
o Courts hearing private law enforcement suits
o Administrative rule making proceedings (where regulations are made)
o Administrative adjudications (just like trials accept there is no jury)
o Court proceedings to review #3 and #4 (if you think they did something wrong in either of these you can take it to court)
We have a V that goes from narrow to broad in the context of interpreting a statute.
Bottom: Text; Next: Other Sections; Next: Canons; Next: Extrinsic Materials (Legislative History); Next: Purpose; Top: Social Values.
– We look at the text of the statute. (At the bottom of the V) – We look at the plain meaning of the statute.
– Then one takes into account the WHOLE statute, not just one section of it. (next part of the V)
– Canons of construction are rules of interpretation that the courts have made up that simply tell a court how to interpret written documents. They are rules that reflect common word usages, sentence construction, and ways of reading statutes (this is the next part of the V).
– Extrinsic Material (right above canons of construction in the V)
o Data or material outside of the statute to help understand the text of the statute.
o Legislative History is the biggest one of these. (Set of documents which present the history of the consideration of a bill).
– The purpose of the statute is the reason they wrote the statute in the first place. What was the UNDERLYING MOTIVE? What was the reason that you made this statute? (next and last part of the V for this class) Purpose is motive, reason.
PLAIN MEANING RULE- When interpreting a statute the courts should give the words their plain meaning UNLESS when interpreted and applied to the facts of the case in plain meaning produces an absurd result in the case.
A. What is the plain meaning? – The ordinary meaning. The meaning that the word has in ordinary and common English usage within the context that the word is used.
i. What would (objectively speaking) a reasonable person would take this to mean. What would the reasonable speaker of English take these words to mean? (then you ask which dictionary do you mean if a person is to look in it to figure out the plain meaning)
ii. This is some sort of generic meaning (not personal to a specific person’s situation)
B. How do you find a word’s plain meaning?
i. Dictionary – This is what a plain person who speaks the English language takes this word to mean. This is a good start because it shows how the word is used in sentences and grammar.
ii. You can also look at the definitional section of a statute (it will always trump the dictionary – who says so? – Article 1 Section 1). Frequently it is used for terms of art, normal English terms that they want to be narrowed in their definition. They do not do it a lot but they want to make sure that one would know what they are saying.
C. Look at canons of construction to figure out the plain meaning.
i. Provides the courts with clues as to the probable meaning of words. These canons are based upon logical inferences from the syntax of a sentence.
ii. Why use it? – Article 1 Section 1 (legislative supremacy)
The best and most legitimate evidence of intended meaning of the statute is THE PLAIN MEANING OF THE TEXT OF THE STATUTE ITSELF. Unless we are told differently, we the courts will assume that the legislature intended the words of the statute are to carry their plain meaning.
ii. You look at the structure and language of the statute.
iii. You want to make sure that the meaning that is found is the legislatively intended meaning and if it takes going outside of the statute then so be it.
iv. Historical Circumstances Surrounding the Passage of the Act
The events that precipitated the passage of the act. What was going on in the time of the passage of the act that made them do so? What were they attempting to exempt people from?
What are we looking for?
SPECIFIC INTENT: it is the meaning of the word in this factual context. Looking to see if the legislature said anything on point as to the type of case before me. How would they solve the case before me. – if we could find this then we would be the most faithful agent ever.
D. Imaginative Reconstruction:
i. Put yourself in the position of an acting legislature of the time and examine the statute as they would have interpreted it way back then. Try to solve the case as they would have WAY BACK THEN.
I want to solve the case the way they would have solved the case. It is their law. We are using their values, definitions and mindset to figure this out. (you look to the language, the structure, legislative history, values/attitudes of the time)
How to read a statute from Intentionalist view-
1. Plain Meaning- They don’t stop at the plain meaning because they don’t trust it.
2. Extrinsic Material- Canons, Historical Circumstances. Looking for specific intent. If you can’t find specific intent then go to step three.
3. Imaginative Reconstruction-
4. Spurious interpretation- Makes the law support a certain situation. Used when there doesn’t seem like there is any other way to go. If you can show that legislature gave the courts that interpretative freedom, then you have a case.
Absurd Results- Even if an interpretation will give an absurd result they will still apply the interpretation