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Legislation and Statutory Interpretation
University of Dayton School of Law
Howarth, Cooley R.

Howarth_Legislation_Fall_2010 11/24/10 2:10 PM

1. Breaking a Statute Down Into Elements
a. An element is a portion of a rule, which you identify on your own, as one of the preconditions to the applicability of the entire rule, and which can be conveniently analyzed separately from the other elements of the rule.
i. Each sentence should be treated as a separate rule for purposes of the element breakdown.
b. There are three special problem areas that you should keep in mind when breaking rules into their elements.
i. Grammatical shorthand
1. When a statute contains a list, the drafter often uses grammatical shorthand to avoid repetition.
a. Example: The test of a petitioner’s knowledge of the history and form of government of the US must be given in the petitioner’s native language.
i. History and form of government form a list and “of the US” qualifies both. Same with the word “knowledge.”
2. When you are stating elements, be repetitive when it is needed to clarify what words, phrases, and clauses go together.
ii. And—express or implied
1. If a statute contains a list in which the last item is preceded by an “and,” there is an implied “and” b/w each of the other items in the list. The word “and” usually indicates additional requirements. Hence, each item before and after the “and” should go into its own separate element.
iii. Or—express or implied
1. The word “or” refers to alternatives rather than additional requirements, all of the alternatives should be expressed w/in the same element (using subsections).
2. Introduction To The Theories of Statutory Interpretation
a. Textualist
i. The interpreter follows the text of the statute. Textualists only take into account the canons, other sections, and the text of the statute.
b. Intentionalist
i. The interpreter indentifies and follows the intent of the statute’s drafters. Intentionalists also use extrinsic aids.
ii. The intent is was the drafters really meant for the words to mean; the conscience choice of meaning by the drafter.
c. Purpose Approach
i. The interpreter chooses the interpretation that best carries out the statute’s purpose. The purpose approach will look at extrinsic aids to interpretation.
ii. The purpose is the motive behind the statute; the evil the statute was designed to remedy.
3. The Theories of Statutory Interpretation: Intentionalism
a. Plain Meaning Rule: follow the plain meaning of the statutory text, unless when so interpreted and applied to the facts of the case, the plain meaning requires an absurd result.
i. American courts cannot allow for an absurd result b/c the Due Process Clause requires that all legislative enactments that affect our life, liberty, or property be rational.
ii. The plain meaning is an objective approach; we are not interested in a subjective sense.
iii. The plain meaning of a statute can be found in a dictionaries, statute definitions (trumps dictionaries), rules of grammar, context w/in a sentence, or the structure of the sentence itself.
iv. Unless the statute says otherwise, courts will assume the words were intended to carry their common and ordinary plain meaning.
1. If, in the definitional section, the statute explicitly adopts an unusual definition of a term, then the statute preempts any other interpretations.
2. The question is how would the average reasonable English speaking person interpret the words? (objective test)
v. Practical problems of plain meaning approach
1. Ambiguity: character

ime the statute was passed, to decide how the legislators would have solved the interpretative issue in this case had they thought about the issue.
iv. If the statute was drafted in a really ambiguous way, the interpreter must engage in spurious interpretation.
1. Spurious interpretation is not really interpretation; it is the court making law by imposing a meaning upon a statute. Judges are required to by explicit when they engage in this third step in an attempt to give this third step some legitimacy.
v. Criticisms of Intentionalism
1. Attribution: By invoking legislative conventions—for example, committee reports and statements of sponsors—Intentionalists sacrifice some of the normative appeal of the theory’s goal, which is to implement the actual intent of the enacting Congress. And it may place too much weight on reports subject to manipulation and statements made in the course of heated, phony, or strategic debate.
a. A collective body cannot easily be charged w/ having and intent; legislatures have outcomes not intents.
2. Legislative history is not law.
3. Intentionalism is trapped in the past
4. Theories of Statutory Interpretation: Purpose Approach
a. For the purpose approach, in the case of competing interpretations of a statute, the preferred interpretation is that interpretation that best effectuates the purpose of the statute in the current social and legal context.