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Statutory Construction and Interpretation
General Principles and Recent Trends; Statutory Structure and Legislative Drafting Conventions; Drafting Federal Grants Statutes; and Tracking Current Federal Legislation and Regulations
Statutory Construction and Interpretation
General Principles and Recent Trends; Statutory Structure and Legislative Drafting Conventions; Drafting Federal Grants Statutes; and Tracking Current Federal Legislation and Regulations
Compiled by TheCapitol.Net
Authors: Larry M. Eig, Yule Kim, M. Douglass Bellis, Tobias Dorsey, Malcolm S. Mason, Pamela A. Hairston, and Judy Schneider
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.. . . .” by Larry M. .. .. .. . . .. . .. . .. ... . June 5. .... .. .. . . . .. Hairston. . 1 Chapter 2: “Statutory Structure and Legislative Drafting Conventions: A Primer for Judges.... ... .” by M. . . . . . . .. . .. from “Drafting Federal Grant Statutes: Studies in Administrative Law and Procedure 90-1. .... .... . . . .. .” Chapter 3 from Legislative Drafter’s Deskbook. Douglass Bellis... . .. .. .. . .. . . . . . .. .. . All Rights Reserved. . .. . .. CRS Report for Congress 97-589. . ... . .Summary Table of Contents Introduction . . . . . . . CRS Report for Congress RL33895... . . ... 301 Copyright ©2010 by TheCapitol. . 277 Chapter 6: “Legislative Planning: Considerations for Congressional Staff. October 14. . . .. . .. Mason... .. . .” by Judy Schneider. . . .. . .. . . . . . . 703-739-3790 TCNSI. . ... . . 55 Chapter 3: “Considering the Courts: Statutory Interpretation.. . .. . . . .. .. . .... . . . . . . ... .. . . . 2008 .. . . . .. . . .. . . . . . .... . .. ... . . ... .. . . . . . 2009 . .. ... . ... . .. . .com iii . . . . . .. . .. . . . .. . .... ..... . . .. . . March 11. .. . .. . . .. Federal Judicial Center.. ... . . . . .. . . . . . . .. . .. ... . .. . . .. .. . .. .. .... .. . .. .. . . .. . . . .. . . . .. . ... . . . .. . . ... . . by Malcolm S. . . .. . . ... . . . . . . . .. . . February 2008 .. CRS Report for Congress RS20991. 75 Chapter 4: A Guide to Federal Grant Statute Drafting. . . ... . .. . . . . . .. . . .. .. 291 Chapter 7: Resources from TheCapitol. .. 299 Chapter 8: Other Resources .. by Tobias Dorsey . . . . . . .. .. . . . . . . . .. .S. .” by Pamela A. . . . . . . . . .Net. .. . . .. . .. .. . ..Net .. . ... .. . . . . .. ... .. . . .. . 125 Chapter 5: “Tracking Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff. .... . . .. . . 2010 . No claim made to original U... . . . . . . . .... ... . . .. .. . .. . . . . government documents.. .. xiii Chapter 1: “Statutory Interpretation: General Principles and Recent Trends. . .” Administrative Conference of the United States (ACUS) .. Eig and Yule Kim.. . . . ...
Specific.. ..” by Larry M.. ...... . . ... . .... . . ... . .. .. . . . .. . xiii Chapter 1: “Statutory Interpretation: General Principles and Recent Trends... . ... .... ... . . Impinging on State Operations Abrogation of States‚ Eleventh Amendment Immunity Nationwide Application of Federal Law Waiver of Sovereign Immunity Non-retroactivity/Effective Date Avoidance of Constitutional Issues Extraterritorial Application Disfavored Judicial Review of Administrative Action Deference to Administrative Interpretation Repeals by Implication Laws of the Same Session Appropriations Laws Copyright ©2010 by TheCapitol. .... .. ... ... 2009 ... .. .. . . .. . .. .. .... . CRS Report for Congress 97-589..... . October 14... . .. . . . .. . . . All Rights Reserved... .Table of Contents Introduction . .. and Associated Words Grammatical Rules. No claim made to original U. Punctuation Statutory Language Not to be Construed as “Mere Surplusage” Same Phrasing in Same or Related Statutes Different Phrasings in Same Statute “Congress Knows How to Say . . 1 Introduction Statutory Text In General˜Statutory Context and Purpose “Language” Canons of Construction In General Ordinary and Specialized Meaning Terms of Art Ordinary Meaning and Dictionary Definitions And/Or Definite/Indefinite Article Shall/May Singular/Plural General. .S.com v ... Eig and Yule Kim. .... .. government documents. . . . ... .. ...Net..” Statutory Silence De Minimis Principle “Substantive” Canons of Construction Departure from Common Law or Established Interpretation Displacing State Law... .. .. . .... .. . .. 703-739-3790 TCNSI.. .. . . . .. . ... .. .
. . February 2008 . . . . . . . . . 55 Introduction Part I. . . . a work in progress F. First attempt at codification˜the Revised Statutes of the United States D. . . . . . . Federal Judicial Center. A second attempt: the U.S. What is the authoritative text of federal legislation? B. Naming Conventions A. . . . . .” by M. Sources of Statutory Law A. All Rights Reserved. Bottom line in dealing with “small divisions” vi Copyright ©2010 by TheCapitol. The varieties of legal effect of various parts of the U. . . . .S. Complications E. The bottom line on sources of federal statutory law Part II. . . . Sections B. . . . The problem of later amendments to earlier statutes in the “commonlaw” tradition C. . Code G. . . 703-739-3790 TCNSI.S. . . Code. Douglass Bellis. Clauses D. . No claim made to original U. . .Rule of Lenity Scienter Remedial Statutes Statutes Benefitting Indian Tribes Miscellany Titles of Acts or Sections Preambles (“Whereas Clauses”) Findings and Purposes Sections “Sense of Congress” Provisions Savings Clauses “Notwithstanding Any Other Provision of Law” Implied Private Right of Action Incorporation by Reference Severability Deadlines for Administrative Action Legislative History Plain Meaning Rule Uses of Legislative History Inferences Based on “Subsequent” Legislative History Subsequent Legislation Reenactment Acquiescence “Isolated Statements” Presidential Signing Statements Chapter 2: “Statutory Structure and Legislative Drafting Conventions: A Primer for Judges. . government documents. . . .Net. .com . . . Subsections and paragraphs C.
.13 Tensions between Courts and Congress over Interpretation 3.22 Three Common Theories (Intentionalism. Problems with “willful” Conclusion Chapter 3: “Considering the Courts: Statutory Interpretation.35 3. Textualism. The doctrine of functus officio as applied to amendatory Acts C. Titles...30 Reading the Text of the Statute 3.. Convention relating to cross references within a unit Part III.com vii . No claim made to original U... Not Rules of Law 3.38 Assume the Provisions Form a Coherent Whole Purposes.02 What Kind of Judge? . and Pragmatism) and Their Limitations 3...23 The Plain Meaning Rule 3..00 Introduction 3. Other Conventions That May Be Useful To Know A.26 When Plain Meaning Is Not Enforced 3.E. Use of title 5 conventions E.27 When There Is No Plain Meaning 3.20 The Overriding Goal: Determine the Intent of Congress 3.24 The Meaning of “Plain Meaning” 3. 75 3.. and Headings Grammar and Punctuation Placement in Code Copyright ©2010 by TheCapitol.31 The Whole Act Rule 3. Reliance on title 28 conventions F. 703-739-3790 TCNSI.S. “Including” means “not limited to” B. one nomenclature G. Titles. government documents. Findings.36 3.11 The Power to Interpret 3.32 Derive Meaning from Context 3. chapters.. Code D. and other divisions F. Various styles..34 Assume Each Word Is Used for a Reason 3..21 Rules of Thumb..12 Making Congress Follow the Techniques 3..10 Judicial Power and Legislative Supremacy 3. All Rights Reserved.01 Courts: The Most Important Audience 3.14 Efforts by Congress to Regulate Interpretation 3. by Tobias Dorsey 3. Criminal fine conventions G.Net...” Chapter 3 from Legislative Drafter’s Deskbook.25 The Consequences of Plain Meaning 3.37 3.33 Assume Words Are Used Consistently 3. State-of-mind convention for criminal cases H.. Definitions under title 1 of the U.S.
. .82 Narrow Interpretations and Broad Interpretations 3.85 The Court’s Reluctance to Imply Additional Exceptions 3. . . government documents. 125 Preface Note on 1 U.72 Legislative History: Why It Is Problematic 3.81 Definitions and Terms of Art 3.52 When the Court Requires Clear Statements 3. Some expert assessments indicate that grant statutes are often not clear viii Copyright ©2010 by TheCapitol.43 Earlier Versions of the Same Statute 3.42 General Federal Laws 3. .83 Congress Does Not Mumble 3.S.C. . No claim made to original U.40 Considering Other Statutes 3.77 Hearing Testimony 3. All Rights Reserved.3. 1 Description of the Project Advisory Group Table of Contents I. . . .41 Related Statutes 3. . .71 Interpretation of Appropriations Acts 3. .80 Some Topics of Special Interest to Drafters 3. Are grant statutes generally well drafted? B. 703-739-3790 TCNSI. .60 Actions hy the President and Other Executive Officers 3. . . Mason. .51 Avoiding Serious Constitutional Problems 3.” Administrative Conference of the United States (ACUS) . .75 Report Language 3. . by Malcolm S.S.90 Conclusion Chapter 4: A Guide to Federal Grant Statute Drafting.74 Legislative History Compared with Subsequent Legislative History 3.76 Individual Statements 3.70 Actions by the Congress and Other Legislative Officers 3.53 When the Court Requires Specific Findings 3.Net.73 Legislative History Compared with Post-Enactment Statements 3. . .62 Agency Interpretation and Chevron Deference 3. .50 Considering Constitutional Issues 3. . from “Drafting Federal Grant Statutes: Studies in Administrative Law and Procedure 90-1.84 How the Court Interprets a List 3. .44 Resolving Conflicts between Statutes 3. .79 The Opinion of the Drafter 3. . .78 Amendatory History 3. . Introduction A.com .61 Presidential Signing Statements 3. .
Is the program to be a grant program as opposed to a direct federal operation 2.C. and should be encouraged to supply drive. Outline of a typical grant statute Sec. The constitutional basis for grants F. modification to local circumstances 3. If the program is to be assistance. Table of contents Sec.Should there be a requirement that federal funds not be used to supplant local efforts? III. The administering office 1. Choice of instrument 1. Why should it matter whether one instrument or the other is used? 5. Use a grant when two conditions are present a.com ix . Should the program instrument be a grant or a contract? 4. and adjusting the various elements to each other E.Net. 703-739-3790 TCNSI. grant authority should normally be conferred on agency heads with express or implied power of delegation rather than on specified subordinates H. Grants are a congressional monopoly G. Types of grants C. is the instrument to be a grant or cooperative agreement? B. What should be the funding mechanics of the program? J. It is recommended that absent clear reasons to the contrary. Should there be a requirement for local sharing in the costs? L. 2. No claim made to original U. A grant program need not and generally does not stand alone 2. Various programs in addition to grants have assistance elements D. Who should be interested in grant statute drafting problems? II. How much discretion should be left to the executive? I. There is an important federal purpose to be served b. Short title Sec. What is the intended class of recipients? K. Should there be a requirement for maintenance of local effort? M. creativity. government documents. Good grant statute drafting calls for at least consideration of setting the proposed grant statute in a context of such other activities. 3. Ambiguity is sometimes deliberate and sometimes justified but should be held to a reasonable minimum F. 1. All Rights Reserved. If a program is to be a grant program. Findings and purposes — State your sources of power explicitly — State your purposes explicitly Copyright ©2010 by TheCapitol. There are also local concerns that should share in shaping the remedy for the problem perceived. who should administer it? 2. Grants in context 1. Some examples confirm that view D. Planning a grant statute How should a grant statute be structured A. imagination. Planning an assistance program A.S. The Supreme Court repeatedly finds grant statutes not clear E.
All Rights Reserved. 17. 18. Allotment formula Sec. 14.)” — Standardization — Remember that your proposed statute is intended to affect live people Sec. Establishment of administering office — A trap: who’s the boss? — The problem of micro management — Over-demanding rules Sec. government documents. 6. Definitions [and herein other questions of language] — Anticipate litigation — Define your terms — Plain language can be a trap — Borrowed language and borrowed provisions — A danger in cut and paste — “The drafter should never mindlessly copy the model. 7. sunset and miscellaneous provisions — Check-up periodically on existing statutes Sec. Rulemaking power Sec. severability. 12. Provisions for relationship to allied programs Sec. State plan provisions Sec. 703-739-3790 TCNSI. 10. 11. Accountability. Report to Congress Sec. Authorization of assistance — Do not unnecessarily or inadvertently direct state or local governments or private bodies to act through structures or particular officers that the state (or local government or private body) would not choose for itself — Be explicit about eligibility — Be explicit about intended beneficiaries — Think about flow-through of grant rules to subgrantees and contractors under grants — Administrative discretion — Provide explicitly for discretion — Deal explicitly with questions of federal preemption — Be explicit about last dollar provisions — Autonomy Sec.S. monitoring provisions Sec. 8. 15. 5. 9. Repealers.Net. 13. The drafter should approach the model as if it were a first draft which needs revision.com . Sanctions and incentives Sec. 4. saving harmless. Conditions of assistance Sec. Authorization of appropriations Sec. No claim made to original U. Effective date x Copyright ©2010 by TheCapitol. Discretionary grant provisions Sec. (Usually it does. 19. Administrative and judicial review provisions — Administrative — Judicial — Disallowance and non-conformity Sec. audit.Sec. 16.
. . . . .” by Pamela A. . . . All Rights Reserved. . government documents. . .com xi . . . . . CRS Report for Congress RS20991. . . . Reference materials A. . . . . . Bibliography 1. Overview and brief preliminary suggestions B. . . . . Other material related to grants 3. . . No claim made to original U. . . . . . . . . . . 2008 . . . March 11. Hairston. . . . . . . . . .S. . . . . . . . . . . . . . . . 2010 . .” by Judy Schneider. . . . . . . . . . .B. . CRS Report for Congress RL33895. . . . . . 291 Overview Define the Problem and Determine the Solution Research the Problem Determine Strategy Outline for Project Goal Description of Project Copyright ©2010 by TheCapitol. . . . . . . Related to drafting C. . . . . . . . . . . June 5. . . .Net. Comparison of LIS and THOMAS Appendix. . Some suggestions for general grant statutes IV. . . 703-739-3790 TCNSI. . 277 Introduction Tracking Current Federal Legislation Official Government Sources Non-Government Sources Tracking Current Federal Regulations Official Government Sources Non-Government Sources Media Sources CRS Resources Classes at CRS Selected CRS Reports Table A-1. . . . . . . Acronyms and other abbreviations Chapter 5: “Tracking Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff. . . . . ACIR and ACUS studies 2. . . . . . . . . . Special considerations in drafting amendatory grant statutes — Leave a track — Is redesignation necessary? — An amending statute may need a different approach than an original statute — “Consult an experienced program attorney” C. . . . . . . A Comparison of LIS and THOMAS Chapter 6: “Legislative Planning: Considerations for Congressional Staff.
. . ... ... . 299 Publications Live Training Capitol Learning Audio CoursesTM Chapter 8: Other Resources Books .. ... .. . . .. .. ... 301 Internet Resources xii Copyright ©2010 by TheCapitol. . . . . .... All Rights Reserved.. . ... .. . government documents.... .. .. . .. .. .. .Legislative Strategy Other than Legislative Strategy Outside Groups Strategy Press and Communications Strategy Time Line Political Opportunity Sample Action Plan for Legislative Project Chapter 7: Resources from TheCapitol. .. ..S....Net .. .... ... . ... . .. .... . 703-739-3790 TCNSI. ... . . ......com . . .. . .. . .. .. ........ . . ... . .Net. . No claim made to original U........ ....
collectively. some are traps for the unwary.com xiii . All Rights Reserved. some are subtle.Introduction Statutory Construction and Interpretation General Principles and Recent Trends. The courts always have the last word. it is not difficult to get inside the mind of the Court and understand how it thinks.Net. Also included is a chapter on drafting federal grants statutes. While schools of statutory interpretation may vary on what factors should be considered. Copyright ©2010 by TheCapitol. in particular. In some ways these audiences are very different. To help clarify uncertainty. legislators.) There are other audiences. the Supreme Court of the United States. but in two ways they are all alike: Each wants to know the effect of the draft. Beyond this. 703-739-3790 TCNSI. the meaning of statutory language is not always evident. The draft will be read and interpreted by legislators. government documents. and those are set forth with a discussion of the special problems facing drafters of grants laws. Still. private individuals. Statutory Structure and Legislative Drafting Conventions. industry leaders. journalists.S. and scholars. No claim made to original U. the process is known as statutory interpretation. all approaches start (if not necessarily end) with the language and structure of the statute itself. and private parties. of course. the most important audience is the federal courts—and. When drafting federal law. each matter of interpretation before a court presents its own challenges. judges have developed various interpretive tools in the form of canons of construction. the methodologies and approaches taken by the courts in discerning meaning can help guide legislative drafters. public officials. and each recognizes that the effect is ultimately determined by the courts. lobbyists. Judicial interpretation of the meaning of a statute is authoritative in the matter before the court. However. (It is also known as statutory construction. Some are obvious. and there is no unified. and Tracking Current Federal Legislation and Regulations The exercise of the judicial power of the United States often requires that courts construe statutes in applying them in particular cases and controversies. courts are guided by the basic principle that a statute should be read as a harmonious whole. This book reviews the primary rules courts apply to discern a statute’s meaning. to name a few. systematic approach used in all cases. Fortunately. implementing agencies. In analyzing a statute’s text. and the Supreme Court has the very last word. some are counterintuitive. It is true that many principles of statutory interpretation are simply general principles about how best to read English prose. through judicial methods of statutory interpretation. the differences between the two terms are not great. The Court makes this process public in its published opinions. But many are not. Drafting Federal Grants Statutes. Several rules of drafting have special relevance to statutes in the field of federal assistance (grants). with its separate parts being interpreted within their broader statutory context.
All Rights Reserved. 703-739-3790 TCNSI. Links to Internet resources are available on the book’s web site at <TCNSI.Legislation can be drafted without paying attention to statutory interpretation.Net. But rules of interpretation are like rules of the road: Drive on the right. signal before turning. sooner or later you will park in front of a fire hydrant or go the wrong way down a one-way street.S. No claim made to original U. xiv Copyright ©2010 by TheCapitol.com . If you don’t know all the rules. government documents. pedestrians have the right of way.com>. stop on red.
government documents.S.Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends Larry M.Net.crs. No claim made to original U.com 1 . 2009 Congressional Research Service 7-5700 www.gov 97-589 CRS Report for Congress Prepared for Members and Committees of Congress Copyright ©2010 by TheCapitol. 703-739-3790 TCNSI. Eig Specialist in American Public Law Yule Kim Legislative Attorney October 14. All Rights Reserved.
government documents. the methodologies and approaches taken by the courts in discerning meaning can help guide legislative drafters.” canons are interpretive “rules of thumb” for drawing inferences based on customary usage. Canons broadly fall into two types. in considering the meaning of particular words and phrases.” To this end. Other language canons direct that all words of a statute be given effect if possible. Most particularly. all approaches start (if not necessarily end) with the language and structure of the statute itself. The Supreme Court has expressed an interest “that Congress be able to legislate against a background of clear interpretive rules. “dictionary” sense. All Rights Reserved. some Justices may be willing to look to legislative history to clarify ambiguous text. However. that is. A commonly invoked “substantive” canon is that Congress does not intend to change judge-made law. Congressional Research Service 2 Copyright ©2010 by TheCapitol. and there is no unified. For example. The Court also tries to avoid an interpretation that would raise serious doubts about a statute’s constitutionality. No claim made to original U. and private parties. including “intentionalism.com .Net.” including. and subordinates the general. so that it may know the effect of the language it adopts. As another example. judges have developed various interpretive tools in the form of canons of construction. linguistic canons of statutory construction. that a term used more than once in a statute ordinarily be given the same meaning throughout. to overarching presumptions that favor particular substantive results. When one of these “substantive” canons applies. and the like. the meaning of statutory language is not always evident. This report briefly reviews what constitutes “legislative history. each matter of interpretation before the Court presents its own challenges. this report reviews the primary rules the Court applies to discern a statute’s meaning. since any of these “canons” gives way if context reveals a contrary meaning. presidential signing statements. To help clarify uncertainty. with its separate parts being interpreted within their broader statutory context. Beyond this. and the factors that might lead the Court to consider it.” Other approaches. While schools of statutory interpretation may vary on what factors should be considered. “Language. language canons call for determining the sense in which terms are being used. Not infrequently the Court stacks the deck. legislators. In analyzing a statute’s text. Judicial interpretation of the meaning of a statute is authoritative in the matter before the court. as well as other interpretive principles. Interpretive methods that emphasize the primacy of text and staying within the boundaries of statutes themselves to discern meaning are “textualist. implementing agencies. the Court is guided by the basic principle that a statute should be read as a harmonious whole. possibly. systematic approach used in all cases. Congress must strongly signal an intent to the courts if it wishes to apply a statute retroactively or override existing law. whether words or phrases are meant as terms of art with specialized meanings or are meant in the ordinary.” or “linguistic. 703-739-3790 TCNSI.S. grammar. the Court frequently requires a “clear statement” of congressional intent to negate it. “Ordinarily” is a necessary caveat.” are more open to taking extrinsic considerations into account. Still.Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends Summary The exercise of the judicial power of the United States often requires that courts construe statutes in applying them in particular cases and controversies. Other substantive canons disfavor preemption of state law and abrogation of state immunity from suit in federal court. and that specific statutory language ordinarily trumps conflicting general language.
.......................................... 17 “Substantive” Canons of Construction............................1 Statutory Text.......................................... 27 Rule of Lenity....................................................................................................................................................................................................................................................................................4 In General............ Impinging on State Operations................................................................................. 30 Preambles (“Whereas Clauses”) ............................................. Specific.................................................................................................................... Punctuation ............................5 Terms of Art.......................................................................9 General.......................................................................................................................................... 13 Different Phrasings in Same Statute...................................................................................................................................................................................................................................................................... 32 “Notwithstanding Any Other Provision of Law” ...................................................................................................................................”...................................................... government documents........................................................................................................................................................................................................ 703-739-3790 TCNSI.................................................... 35 Congressional Research Service Copyright ©2010 by TheCapitol...........................................................................................................................................................................................................................................................................................................9 Singular/Plural............................................................... 11 Statutory Language Not to be Construed as “Mere Surplusage” ............................................................................................................................9 Shall/May .............................................................3 “Language” Canons of Construction .................................................................3 In General—Statutory Context and Purpose ...................................................... 20 Non-retroactivity / Effective Date.............. 18 Abrogation of States’ Eleventh Amendment Immunity ................ 20 Avoidance of Constitutional Issues.................................................................................... 23 Repeals by Implication........... and Associated Words ................................................................................................. 12 Same Phrasing in Same or Related Statutes ..com 3 ........................... 29 Statutes Benefitting Indian Tribes....................................................... No claim made to original U.................................................................................. 21 Extraterritorial Application Disfavored............................8 Definite/Indefinite Article ............................................................................................................................................................................................................................. 26 Laws of the Same Session .............................. 14 Statutory Silence .............. 33 Implied Private Right of Action............................................. 28 Remedial Statutes............................. 14 “Congress Knows How to Say .........................7 And/Or ...................................................Net...... 27 Appropriations Laws..................................................................... 31 Findings and Purposes Sections....S............................................................. All Rights Reserved... 31 “Sense of Congress” Provisions ................. 17 Departure from Common Law or Established Interpretation ........................ 30 Titles of Acts or Sections............................................................................................................................................................................................................................................................................................................................................ 19 Nationwide Application of Federal Law .................................................................................................................................................4 Ordinary and Specialized Meaning....................................................................................6 Ordinary Meaning and Dictionary Definitions ............................................................................................................................................................. 32 Savings Clauses .................................. 15 De Minimis Principle ... 17 Displacing State Law........................ 19 Waiver of Sovereign Immunity............... 21 Judicial Review of Administrative Action..................................................Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends Contents Introduction ....................................... 21 Deference to Administrative Interpretation ................................................ 27 Scienter................................................................ 10 Grammatical Rules............ 30 Miscellany ....................
....................................................................................................................................... 46 Presidential Signing Statements...................................... No claim made to original U.............................Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends Incorporation by Reference ................. 36 Severability..S................................................................................................................................................................. 37 Legislative History............. 39 Inferences Based on “Subsequent” Legislative History......................................... 44 Reenactment ...................................................... 46 “Isolated Statements” ............................................................ All Rights Reserved............... 36 Deadlines for Administrative Action..................................... 37 Plain Meaning Rule..................................................... 50 Acknowledgments ......................................................... 50 Congressional Research Service 4 Copyright ©2010 by TheCapitol.......................................................................com ................... 43 Subsequent Legislation ................................................................................................. government documents................................ 703-739-3790 TCNSI............Net...................................................................................................................... 45 Acquiescence......................................................................................................................................... 47 Contacts Author Contact Information ............................................................................................................................................................................................................................ 37 Uses of Legislative History .
PA. nor as an analysis of the merits or limits of the many methodologies used by courts in applying statutes in specific cases. Private parties may be primarily concerned with assessing what options they have to act. Easterbrook. executive agencies or the courts) and in accordance with what standards.U. 135 U. Jr.” which most often is associated with the linguistic. 540-42 (1983). Dynamic Statutory Interpretation.” generally are more open to considering the functional effects of a particular decision. Statutes’ Domains. as expressed in its “plain meaning. Methods of interpretation other than textualism and intentionalism. 405 (1989).” and “practical reasoning. Interpreting Statutes in the Regulatory State. and the prospects that the legislature will revisit an issue because of how a statute is implemented or interpreted. REV. 769 (2008).J.1 This report provides an overview of the Supreme Court’s approach to statutory interpretation. implementing agencies. changed circumstances since a statute’s enactment and how the current Congress might view an issue. Shapiro. and private parties on how a statute may ultimately be construed. individual Supreme Court opinions often continue to 1 Though different actors in the political and legal processes share an interest in “what a statute means. A Reevaluation of the Canons of Statutory Interpretation. 103 HARV. This report is not intended as an examination of all schools of judicial decisionmaking. the question may not be one of what is the “best” interpretation of particular legislative language. see Frank H.” canons. section 7 sets forth the process for effectuating this power through passage of legislation by both Houses and either presidential approval or veto override. “Textualism” considers the “law” to be embodied in the language of the statute.” they can come to the issue in different contexts and with different concerns. legislators. 1479 (1987).” properly fit within “textualism. For example. 2 That is.com 5 .” “purposivism. as legislation is deliberated and compromises are struck. L. an implementing agency may look for silence or ambiguity in a statute as an implicit delegation of broad regulatory powers. Continuity and Change in Statutory Interpretation. L. No claim made to original U.Y. and also variously as “overarching presumptions” or “normative canons. of various judicially developed rules of interpretation. Beyond this. L.4 In this regard.3 This report also briefly discusses “intentionalist”-based means of interpretation and the Court’s approach toward relying on legislative history and other extrinsic considerations. A small sampling includes: James J. The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law..g. and the broad aims of Congress in passing a specific law.S. All Rights Reserved. Sunstein. L. the methodologies and approaches taken by the courts in interpreting meaning can help guide legislative drafters. as necessary.” not whether it is the “best. Congressional Research Service 1 Copyright ©2010 by TheCapitol. legislators may be concerned with what substantive and regulatory “gaps” are being created. Alexander Volokh. 4 There is an extensive body of legal literature on statutory interpretation by the courts. REV. David L. L. the report also refers to opinions of United States courts of appeals and scholarly discussion of statutory interpretation generally. government documents. section 1 of the Constitution vests all federal legislative power in Congress. 2 In places. such as “pragmatism. The pertinent query in many instances might be whether a particular interpretation is “reasonable. The exercise of the judicial power of the United States often requires that courts construe statutes so enacted in applying them in particular cases and controversies. this report emphasizes “textualist”-based means of interpretation. while Article I. Judicial interpretation of the meaning of a statute is authoritative in the matter before the court. who likely will fill them (e. 1231 (2009). Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else. even though textualism may be the primary approach toward interpreting statutes.Y.. 67 N. 533. REV.Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends Introduction Article I. REV. Eskridge. 50 U. 3 It is sometimes disputed whether the rules characterized as “substantive” canons of construction in this report. 921 (1992). 703-739-3790 TCNSI. Similarly. Often. CHI. 58 DUKE L. William N. to inform Congress on how the Court might go about analyzing the meaning of particular legislative language. L.” For one leading commentator’s view on compromise as part of the legislative process and why courts should be cautious in “filling in the blanks” left open by a legislature. 83 N. with particular emphasis on rules and conventions that focus on the text itself. REV. REV. Brudney & Corey Ditslear. Cass R.Net. 529 (1992).” which can be discerned through the aid. 45 VAND.U. See also Symposium. or “language.
(N) applicability to the Federal Government. In interpreting statutes. 703-739-3790 TCNSI. (E) whether arbitration and other forms of dispute resolution are appropriate.” Burnet v. the Supreme Court uses content-neutral canons developed by the judiciary that focus on word usage. and the Commonwealths of Puerto Rico and the Northern Mariana Islands. in an article written in 1983: “Almost all statutes are compromises.g. if so. 285 U. 13. to leave certain issues unresolved. or adherence to judicial precedents. CHI. an understanding of interpretational possibilities may nonetheless aid Congress in choosing among various drafting options. and. 1996). 7 It is because “Congress is free to change this Court’s interpretation of its legislation. 50 U. 23 (2005). Reg. (J) whether state courts have jurisdiction.5 In reading statutory text.. now Chief Judge of the United States Court of Appeals for the Seventh Circuit.. and attorney’s fees. thereby upsetting the balance of the package. Overriding Supreme Court Statutory Interpretation Decisions.” 61 Fed. grammar.. 84 NOTRE DAME L. (D) a clear legal standard for affected conduct. Illinois. the Court recognizes that legislative power resides in Congress. (L) standards governing personal jurisdiction. § 519.”6 Of course. 545.8 Corrective amendment can be a lengthy and uncertain process.. 284. and that Congress can legislate away interpretations with which it disagrees.. Executive Order 12988. where amendment is much more difficult. syntax and the like. Sometimes. Eskridge. (C) the effect on existing Federal law. L. As is evident from this report. (B) the preemptive effect. 6 Finley v. REV.S. 533.S. Easterbrook. civil penalties. specifies in clear language”— (A) whether causes of action arising under the law are subject to statutes of limitations. if any. however. what relief is available and whether attorney’s fees are available. 720. 295 (1996) (quoting Illinois Brick Co. it would be a mistake to conclude that all “lapses” of completeness and specificity result from oversights.” that the Court adheres more strictly to the doctrine of stare decisis. Frank B. and the cornerstone of many a compromise is the decision. the Court has expressed an interest “that Congress be able to legislate against a background of clear interpretive rules. 8 One scholar identified 187 override statutes from 1967 to 1990. Neal v. the Court also brings to bear various presumptions that reflect broader judicial concerns and can more directly favor particular substantive results. e.S. dissenting). 490 U. “such as money damages. United States. reprinted in 28 U. 1971 (2007). 431 U.C. and (P) what remedies are available. (K) whether administrative remedies must be pursued prior to initiating court actions. Many items in this list are addressed in this report because statutes have lacked clear guidance on them. United States. the District of Columbia. However. 516 U. many of the interpretive challenges faced by the Court arise from lack of completeness and specificity. territories. The Significance of Statutory Interpretive Methodologies. (F) whether the provisions of the law are severable if one or more is held unconstitutional. 9 5 See. which in part provides guidance to agencies in drafting proposed legislation for possible congressional consideration.. v. Shepard v. Statutes’ Domains. (H) the applicable burdens of proof.J. 4729 (February 5.S. 511 (2009). 101 YALE L.Net. 544 U. REV. Coronado Oil & Gas Co. so that it may know the effect of the language it adopts. 393. because in most matters it is more important that the applicable rule of law be settled than that it be settled right. Shadow Precedents and the Separation of Powers. 406 (1932) (Justice Brandeis. As observed by Frank H. William N.Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends employ multiple types of statutory analysis to support their conclusions and critique majority/dissenting opinions with which they do not agree.) Congressional Research Service 2 6 Copyright ©2010 by TheCapitol.S. Congress can always amend a statute to supersede the reading given it by the Court. usually unexpressed.S. directs agencies to “make every reasonable effort to ensure” that proposed legislation. or less. No claim made to original U. (M) definitions of key statutory terms.” Frank H. Although there is some overlap and inconsistency among these rules and conventions. All Rights Reserved. 736 (1977)). To this end.com . 82 NOTRE DAME L. 556 (1989).. What matters to the compromisers is reducing the chance that their work will be invoked subsequently to achieve more. “Stare decisis is usually the wise policy [for statutes]. Widiss. (G) the retroactive effect. in the area of statutory construction than in the area of constitutional interpretation. United States. (O) applicability to states. Cross.. Easterbrook.. Other conventions assist the Court in determining whether to go beyond the corners of a statute and judicial-based rules of interpretation to also consider the congressional deliberations that led to a statute’s passage. REV. See also Deborah A. than they intended. government documents. One prominent override addressed the Supreme Court (continued. In this regard.S. 540 (1983). 7 Congress has revisited statutory issues fairly frequently to override or counter the Court’s interpretations. 331 (1991). (I) whether private parties are granted a right to sue. injunctive relief. “as appropriate . and although the Court’s pathway through the mix is often not clearly foreseeable.
with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes.R.S.com 7 . the cardinal rule of construction is that the whole statute should be drawn upon as necessary.) 113.. and courts may not always give an override the breadth of application Congress desired. Widiss. this perception has changed: More often than before.” that.S. Congressional Research Service 3 Copyright ©2010 by TheCapitol. How has Congress used or distinguished the same terms in other places in the statute? How does the section in which language at issue appears fit within the statute’s structure? What do the structure and language of a statute reveal about the statute’s overall purposes? The primacy of text in statutory analysis would appear to marginalize whatever insight legislative history or other extrinsic aids might provide. 152. is a holistic endeavor. 10 For an example of an empirical study finding decreased reliance on legislative history by the Supreme Court from 1969 to 2008. Lilly Ledbetter Fair Pay Act of 2009. REV. 58 DUKE L. 516 U. Boisdoré’s Heirs. 618 (2007)).S. “Statutory construction . The strictures of a text-based “plain meaning rule” were once thought honored more in the breach than in the observance.J.. 5 (2009).L. 703-739-3790 TCNSI..”12 Thus. 1231.Net. 12 United States v. but look to the provisions of the whole law. which held that a plaintiff had failed to file a timely suit for past sex discrimination that was prohibited under Title VII of the Civil Rights Act. 157 (1996) (purpose of Hours of Service Act to promote safety by ensuring that fatigued employees do not operate trains guides the determination of whether employees’ time is “on duty”). Ledbetter brought. No claim made to original U.. the meaning of a (. The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law. 371 (1988) (citations omitted). P. see James J. All Rights Reserved. 84 NOTRE DAME L. Timbers of Inwood Forest Associates.”11 In 1850 Chief Justice Taney described the same process: “In expounding a statute.S. However. who has been in the vanguard of efforts to redirect statutory construction toward statutory text and away from legislative history.S. Atchison. Shadow Precedents and the Separation of Powers. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear. 1258 (2009). (8 How.R.. & S. 484 U. 122 (1850) (opinion of Court). 10 Under text-based analysis. Congress superseded the decision in the Lilly Ledbetter Fair Pay Act of 2009. and to its object and policy.” see Brotherhood of Locomotive Engineers v. 49 U. statutory text is thought to be the ending point as well as the starting point for interpretation. 123 Stat. This view is commonly supplemented by perspectives provided from elsewhere within the statute. if the language of the statute is plain and unambiguous. which amended Title VII to clarify the time limit to sue employers in a way that did not foreclose a suit of the type Ms. 511 (2008). we must not be guided by a single sentence or member of a sentence. 365.continued) decision in Ledbetter v. Justice Scalia.. Brudney & Corey Ditslear. There is no single test to assay the clarity of statutory language. government documents. T.F. (550 U. Deborah A. 11 United Savings Ass’n v. it must be applied according to its terms. A narrow focus on the meaning of particular words and phrases is the frequent starting point. Inc. Goodyear Tire & Rubber Co. The Supreme Court often recites the “plain meaning rule. has aptly characterized this general approach. 9 The extent and intended effect of overrides vary.Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends Statutory Text In General—Statutory Context and Purpose The starting point in construing a statute is the language of the statute itself. or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. 111-2. For a modern example of examining statutory language “in place.
these canons are based on general linguistic principles. and other overarching policy concerns of the courts. STATUTES AND STATUTORY CONSTRUCTION). many of them of the common-sense variety. Bock Laundry Machine Co.13 The Supreme Court often cites general rules. for example. 17 Boston Sand & Gravel Co. and different takes from different views can give different insights into the meaning of what is being observed. for drawing inferences about the meaning of language. See also United States v. The Court. courts also may look to the broader body of law into which the enactment fits. Joiner. Beyond this. effective judicial administration. the usage of similar terms in the statute. 14 13 Congressional Research Service 4 8 Copyright ©2010 by TheCapitol. moreover. Inc. 278 U. by purposes inferred from those directives or from the statute as a whole. v. The meaning of a word or phrase can be shaped by its ordinary or specialized meaning. 498 U. However. will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy. Haitian Refugee Center. 16 This report separately addresses “substantive” canons of construction. the language Green v. 490 U.”15 “Language” Canons of Construction In General The “language” canons of construction are neutral.S. its context in the statute. these presumptions can favor particular outcomes. As Justice Jackson put it more than 65 years ago. government documents. and that consequently the presumption of uniform usage throughout a statute should not be followed. 41.S.”17 Each canon provides its own perspective. Fausto. or canons.S. 496 (1991) (referring to presumption favoring judicial review of administrative action). Unless they are rebutted. at 350 & n. analytical guides for discerning the meaning of particular text that might otherwise appear unclear. All Rights Reserved.S.S. 504. Justice Jackson explained that some of the canons derived “from sources that were hostile toward the legislative process itself. the statute’s structure. they long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose. 528 (1990). 463 n.” but none “preclude[s] consideration of persuasive [contrary] evidence if it exists. 344.Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends specific statutory directive may be shaped. which often are referred to as “normative” canons or “overarching presumptions. dissenting) (Court presumes that “Congress is aware of this longstanding presumption [disfavoring repeals by implication] and that Congress relies on it in drafting legislation”). 703-739-3790 TCNSI. however. and by the statute’s overall structure. 594599 (2004).. presumes “that Congress legislates with knowledge of our basic rules of statutory construction. 439. Considering and weighing the value of various views would appear to be a sound process for ensuring well-reasoned interpretations.7 (quoting the first edition of SUTHERLAND. Cline. 48 (1928) (Justice Holmes for Court). 350-51 (1943). by the statute’s statement of findings and purposes.Net. 540 U. federalism. 320 U. v. by that statute’s definitions of terms.com .S.16 That is to say. of construction in resolving statutory meaning. 581. and other factors. A more recent instance of congressional purpose and statutory context trumping a “canon” occurred in General Dynamics Land Systems. 484 U.’” 320 U. the substantive canons derive from broader judicial notions of constitutionalism.” Unlike the linguistic rules that are the “language” canons. The language canons are “axioms of experience. No claim made to original U.S. 15 SEC v.S. 479. the Court determining that the word “age” is used in different senses in different parts of the Age Discrimination in Employment Act.9 (1988) (Justice Stevens. McNary v.” and that viewed legislation as “‘interference’” with the common law “‘process of intelligent judicial administration. by the directive’s relationship to other specific directives. that the overriding objective of statutory construction has been to effectuate statutory purpose as expressed in a law’s text. United States. “[h]owever well these rules may serve at times to decipher legislative intent.”14 It is well to keep in mind.
503 U. and in interpreting a statute a court should always turn first to one.” “general dictionary” sense or in a narrower. and the case’s outcome will in large measure be driven by the rationale of the canon applied. No. at 4 (Scalia. When the words of a statute are unambiguous. a threshold inquiry is whether language is being used in the “ordinary.” Corley v.’”20 Ordinary and Specialized Meaning Determining how a statute is to be applied often comes down to considering what a particular word or phrase means as used in the statute. 0710441. disagreement within a sharply divided Court plays out over whether a term is being used in a (continued. is a 1950 article by Professor Karl Llewellyn that lists many canons (both language canons and substantive canons) juxtaposed to equally “correct” but opposing canons. 3 VAND. The Court takes much the same approach when it chooses congressional intent rather than statutory text as its touchstone: a canon of construction should not be followed “when application would be tantamount to a formalistic disregard of congressional intent. one possible suggestion of the indeterminacy of canons is that statutory construction should be a narrow pursuit. accepting that there may be more than one “correct” answer in resolving the meaning of a statutory provision—a premise that seems unremarkable in many cases at the Supreme Court level19—does not necessarily mean that a Court majority begins with a preferred policy outcome and then marshals only those canons that support it. All Rights Reserved. not its meaning at the time the statute is being adjudicated. slip op.” Rice v. 249. In this exercise. 732 (1983).. then. 21 On occasion.) Congressional Research Service 5 Copyright ©2010 by TheCapitol..) In any event. 713. This might particularly be so when a substantive canon of interpretation (e. not a broader one: “[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation.. many have broadened his message into a charge that canons are useless because judges may pick and choose among them to achieve whatever result they desire. cardinal canon before all others. [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Discerning what Congress probably meant by particular language for the purpose of applying it to a particular set of facts can be a difficult judicial exercise that is not amenable to formulaic resolution. Germain. (These canons are discussed below. dissenting). 19 “As is true with most of the statutory interpretation questions that come before this Court. 22 18 Karl Llewellyn. Still influential. The sheer number and variety of canons have been cited to emphasize their limited utility as a stand-alone method of statutory construction. 20 Connecticut Nat’l Bank v. United States. 703-739-3790 TCNSI. There is simply no perfect solution to the problem before us. the question in this case is not like a jigsaw puzzle.S. L. specialized sense or as a term of art.. for example. 253-54 (1992) (citations omitted).. Nevertheless.S. one may be a particularly apt fit in a given case. avoidance of constitutional issues) is in play.Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends canons are intrinsic aids only. the appropriate reference is what a term meant to Members when Congress passed the statute.S.18 Professor Llewellyn’s main point was to argue that judges should take current circumstances into account in applying a statute in a case— he was critical of the impression that “formalism” gave of there being “only one single correct answer possible” in reading text. not “rules of law.21 Also..g. J. Given an array of established templates to guide interpretation. this first canon is also the last: ǥjudicial inquiry is complete. No claim made to original U.Net.com 9 . REV. government documents.. Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed. 395 (1950). 463 U. Rehner. However.
323 U. at 610.g. Note also that “where a phrase in a statute appears to have become a term of art .S.Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends Terms of Art If the word or phrase is defined in the statute (federal statutes frequently collect definitions in a “definitions” section). No claim made to original U.S. 739-40 (1989) (relying on traditional common law agency principles for meaning of term “employee”). United States. See also Yates v. Sullivan v. government documents. 1 U. No. (U.C.S. Lawson v. however.. slip op. Hof.. 336 U. Co. 24 Colautti v... e. 444 (2003) (same construction of similarly “circular” definition of “employee” in ADA).” and “vehicle”). e.C. See also Nationwide Mut. Jun. Darden.S. has definitions of a few common terms used in federal statutes (e. 489 (2005) (relying on Dictionary Act’s definition of “vessel”). 198. The Court there held that a citizen of Arab ancestry could bring an action under 42 U. 481. 61 Stat.24 Even if the word or phrase is not defined by statute. v. 298. which includes associations and artificial entities). Stroop. United States. 440.S. v. Clackamas Gastroenterology Assocs. 18. § 1915(a) refers only to individuals and does not carry its Dictionary Act definition. Dutra Constr. Co.26 or it may have had an accepted and specialized meaning at common law.com ... 29. Cuomo v.g. These definitions govern in all federal statutes “unless the context indicates otherwise. 604 (1987). United States.23 then that definition governs if applicable in the context used. 730. 2009). Community for Creative Non-Violence v.S.g.C. 538 U. Ins. 483 (1990) (5-Justice majority holding that “child support” in the AFDC statute is restricted to that term’s specialized use in the Child Support program under the Social Security Act). Variations in statutory wording may also refute the suggestion that Congress borrowed an interpretation. it may have an accepted meaning in the area of law addressed by the statute. Sullivan v. But. 26 (1944) (finding. Reid. 703-739-3790 TCNSI. 512 U. 573. 490 U. P. 310 (1957) (in the absence of legislative history indicating that decisions of lower state courts were called to Congress’ attention. 388. “person. 496 U. § 1981. 201 (1949). common use meaning). 392 (1979). e.. Khazraji.S. if a mechanical application of a statutory definition throughout a statute would create an “obvious incongruity” or frustrate an evident statutory purpose for a particular provision. California Men’s Colony. 478 (1990) (5-Justice majority holding that “child support” in the AFDC statute is restricted to that term’s specialized use in the Child Support program under the Social Security Act. 08-453. where the ability of a State to take certain enforcement actions against national banks depended on the meaning of “visitorial powers” when the National Bank Act was enacted in 1864. 503 U. ch. 27 See. 23 The Dictionary Act.. e. Congressional Research Service 6 10 Copyright ©2010 by TheCapitol. 581 (1994) (Congress did not borrow the terms of the Insanity Defense Reform Act of 1984 from the District of Columbia Code). 478. For the presumption to operate. 354 U. a term appearing in several places in a statute is ordinarily interpreted as having the same meaning each time it appears.. v. 36 (1899)..S.” Capital Traction Co. 439 U.” See also Stewart v. as amended. courts will assume that “adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording.g.. Clearing House Assn. 194 (1993) (context indicates otherwise.. Court “should not assume that Congress was aware of them”).” “vessel. Wells.” Id...Net. while 4-Justice minority argue that “child support” in the AFDC statute has a broader. which gives to all persons certain rights to the extent they are enjoyed by “white citizens”: “Plainly. See also. i..L.25 it may have been borrowed from another statute under which it had an accepted meaning. 543 U.C.. Co. 496 U.S.S.S. then it is permissible to depart from the definition.S. 633 (1947).” Carolene Products Co. See. as noted below.g. or elsewhere in the United States Code. 318. Rowland v. 22 Saint Francis College v. any attempt to break down the term into its constituent words is not apt to illuminate its meaning.S. the previous judicial interpretations must have been “known and settled.S. 323 (1992) (following the same course after finding ERISA’s “circular” definition of “employee” to be useless).S. all those who might be deemed Caucasian today were not thought to be of the same race at the time § 1981 became law [in the 19th century]. 481 U. 27 In each of these situations the accepted meaning (. v. that circumstances were inappropriate for reliance on the principle). Franklin. 25 See. 26 In appropriate circumstances.S. All Rights Reserved. §§ 1-6. If the context indicates otherwise.S. 174 U.S.e. 379.S. L. Suwannee S. 1. the term “person” as used in 28 U. 506 U. Stroop. Shannon v.” Id.S.continued) specialized sense or in accordance with ordinary meaning.C.
then the agency’s choice of one alternative dictionary definition over another may indicate sufficient “reasonableness. government documents. v. the Court has relied on regular dictionary definitions to interpret the word “marketing” as used in the Plant Variety Protection Act.” Id.S. 108 (1991) (quoting Isbrandtsen Co. absence of contrary direction may be taken as satisfaction with widely accepted definitions.. The Court had less difficulty with the provision in 1995. i. and context must guide choice among them. Soliman.S. 30 In the absence of a statutory definition. 512 U.) Congressional Research Service 7 Copyright ©2010 by TheCapitol. 735. 33 FDIC v. 174 (1993). MCI Tel. Meyer. 783 (1952)).” FDIC v. 223 (1993). aberrant dictionary meaning “to make a basic or important change” is antithetical to the principal meaning of incremental change and is more than the statute can bear). he wants to know whether you walk with a cane. 32 and relied on Black’s Law Dictionary for the meaning of the word “cognizable” as used in the Federal Tort Claims Act to identify certain causes of action. 510 U. 513 U.36 This conclusion may be compared to a finding that 28 “[W]here a common law principle is well established. many words have several alternative meanings. Co. 32 Commissioner v. . 125 (2004) (preemption of state laws that prohibit “any entity” from providing telecommunications service means. v. In such a case. Meyer. 187 (1995). Johnson.g.S. 246. 118 (1994).S... 476 (1994). where possible.” Smiley v.” In one case. at 242. American Tel. that is “use of a firearm” was not confined to its use as a weapon.’” Astoria Federal Savings & Loan Ass’n v.Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends governs28 and the word or phrase is considered a technical term or “term of art.S. 501 U. 471. United States. it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. 226-28 (1994) (FCC’s authority to “modify” requirements does not include the authority to make tariff filing optional. Gardner.. as a weapon. 35 Brown v.e. 34 See. All Rights Reserved. overruling a lower court’s (continued. United States. “we construe a statutory term in accordance with its ordinary or natural meaning.S. 31 Asgrow Seed Co. the courts may take it as a given that Congress has legislated with an expectation that the principle will apply except ‘when a statutory purpose to the contrary is evident. the Supreme Court concluded that “use of a firearm” in commission of a drug offense or crime of violence included trading a gun for drugs.S.34 However. & Tel.” Justice Jackson explained why this reliance is appropriate:29 [W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice. Winterboer. Citibank (South Dakota). 179. not as departure from them. 263 (1952). Ordinary Meaning and Dictionary Definitions Words that are not terms of art and that are not statutorily defined are customarily given their ordinary meanings. “[a]mbiguity is a creature not of definitional possibilities but of statutory context.S. in context. 343 U.33 Of course application of dictionary definitions is not always a clear course. 104. 342 U. v. Dissenting Justice Scalia argued for a narrower reading: “[to] use an instrumentality normally means to use it for its intended purpose.. 476 (1994). 517 U. 508 U. No claim made to original U. 218.S.S.. e. 510 U. When someone asks ‘Do you use a cane?’ he is not inquiring whether you have your grandfather’s silver-handled walking-stick on display in the hall. 703-739-3790 TCNSI. 779. 29 Morissette v.. Similarly. 506 U.com 11 . 168.” and does not preempt a state law prohibiting local governments from providing such services). “any private entity. 36 Smith v. 31 and the word “principal” as used to modify a taxpayer’s place of business for purposes of an income tax deduction. Solimino.Net. Corp.”35 Consider two cases in which context did not clearly point to whether a term was to be given its broadest dictionary meaning or was to be construed narrowly according to “common understanding. 471.30 Thus.S.S. 115.S. and Nixon v. 541 U. 513 U. If the court views the issue as one of deference to an administrative interpretation. to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose. often derived from the dictionary. Missouri Municipal League. 744-47 (1996).
.S.” Bailey v. 516 U.38 As Judge Learned Hand observed. Ballentine. slip op... 739 (2d Cir.2d 870 (2d Cir.3d 535.” or “or” as “and. 573 (1956) (“the word ‘or’ is often used as a careless substitute for the word ‘and’”). Long Beach Fire and Ambulance Serv. whose sympathetic and imaginative discovery is the surest guide to their meaning. United States.2d 589. Supp. person who sold drugs after retrieving them from room in which gun was found in a locked trunk in a closet did not “use” that gun in sale). Corp.S.Net. 761 F. 1979).g.C. 88. 597-98 (10th Cir. United States. FILSON.” LAWRENCE E. 148 F. 932 F. 38 The majority in Smith. applies if the property owner had knowledge of the crime. if a “strict grammatical construction” will frustrate evident legislative intent. N.”37 In close cases such as these.continued) holding that proximity and accessibility of a firearm are alone sufficient to establish “use. 524 U. a court may read “and” as “or. O’Driscoll. ‘A word in a statute may or may not extend to the outer limits of its definitional possibilities.”42 Moreover. Winn.”39 And/Or Ordinarily. at 240.S. concurring).10 (1992).. The Bailey Court. 546 U. defined “use” in such a way (“active employment”) as to leave the Smith holding intact. 37 Abuelhawa v.” Hibbs v.2d 1029 (D. See also Muscarello v. Pueblo of Santa Ana v. 326 F.Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends purchasing drugs over a cell phone did not constitute the felony of “facilitating” drug trafficking through a communication device: “[S]tatutes are not read as a collection of isolated phrases . the Court may go beyond the words of a statute for guidance and look to the statute’s broader purpose or its fit with other laws. May 26.3d 682.g. THE LEGISLATIVE DRAFTER’S DESK REFERENCE. Kelly. 141st St.’ We think the word here does not. e. statutory context can render the distinction secondary. 41 Courts do not apply these meanings “inexorably. 1292 (D. United States v. at 3 (U. 42 See. Williams. e.. which construed “use of a firearm” broadly. A corollary is that use of the disjunctive “or” creates “mutually exclusive” conditions that can rule out mixing and matching. Cir. No. and took all reasonable steps to prevent illicit use of his property).. Mex. and can be used in two quite different senses. Congressional Research Service 8 12 Copyright ©2010 by TheCapitol. Both “and” and “or” are context-dependent. 1996). 911 F. 570. “In a contest between the dictionary and the doctrine of stare decisis. United States. United States v. Slip op. 118 F.S. 1997).S.S.S. § 21. 2003) (“a crime may qualify as a serious drug offense by meeting all the requirements of (i) or all the requirements of (ii). 1985). and each word “is itself semantically ambiguous. Stevens. 1990) (holding that an affirmative defense to forfeiture of real property used in a drug offense. 486 (2006)).. Postal Service. 125 (1998) (the companion phrase “carries a firearm. 684 (9th Cir. according to the majority. De Sylva v. 137 (1995) (driving car with gun located in bag in car’s trunk does not constitute “use” of gun. but not some of the requirements of (i) and some of (ii)”). stated there was a general understanding that drugs and firearms are a dangerous combination and saw no reason why Congress would want to distinguish use of a firearm as a weapon in a drug crime from use of a firearm in barter in a drug crime. Zorich v. United States v.. 08-192. is a broader category that includes transporting drugs with a handgun locked in the glove compartment of a vehicle). Justice Stevens has expressed a preference for established interpretation over dictionary definitions. The unanimous Court in Abuelhawa. 40 while use of the disjunctive “or” means that only one of the listed requirements need be satisfied. the latter clearly wins.g. did not consent. United States v. 1284. 703-739-3790 TCNSI. 481. No claim made to original U.” found in the same statutory provision. 43 See. 39 Cabell v. applicable if the offense was committed “without the knowledge or consent” of the property owner. which construed “facilitate” narrowly.. however. All Rights Reserved. 2009) (quoting Dolan v. at 5-8. 508 U. as in everyday English.43 (.” however. 41 See. Markham. both circumstances involved a grave possibility of violence and death. 541 (4th Cir. 40 See. 1945).S. 542 U.. 351 U. Moore. “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary. e.2d 737. stated that a broad reading (which would have led to higher criminal penalties) could be inconsistent with the gradation of similar and more serious offenses. 613 F. government documents.com . but to remember that statutes always have some purpose or object to accomplish. e. 113 (2004) (J. use of the conjunctive “and” in a list means that all of the listed requirements must be satisfied.g.
. however.S. a drafter’s choice between the definite and indefinite article can affect meaning. Warner-Lambert Corp. Apotex Corp.. 501 U. v. 241 (2001) (“Congress’ use of the permissive ‘may’ . 50 The Dictionary Act provides that “unless the context indicates otherwise. Sprietsma v. Metro.” 1 U. Consolidation Coal Co..C. is dispelled when we pass from the words alone to a view of [the statute’s] ends and aims”). 316 F. context will trump ordinary meaning.. 630. 2000). “Should” sometimes is substituted for “may” as a permissive word. 48 Occasionally.Chapter 1: Statutory Interpretation: General Principles and Recent Trends Statutory Interpretation: General Principles and Recent Trends Definite/Indefinite Article As in common usage.” Lexecon.S. See also Reid v. 46 See IA SUTHERLAND. 1356 (Fed. 1001 (8th Cir. words importing the plural include the singular. 531 U. Correctional Center. Co. Inc. 493 (1935) (“doubt . Slater. 490. we think. § 1. 523 U. 312 U. 45 “The mandatory ‘shall’ . Cir. 63 (2002) (reference in a preemption clause to “a law or regulation” “implies a discreteness—which is embodied in statutes and regulations—that is not present in the common law”). Jt. “The definite article ‘the’ particularizes the subject which it precedes.S. 367 (4th Cir. e. 2004) (“because Congress used the definite article ‘the. v..S. 156 U. Davis. 2002 rev..’”44 Shall/May Use of “shall” and “may” in statutes also mirrors common usage. Union Elec. 537 U. 432 n. Thoman.Net. 635 (1941) (substitution of “may” for “shall” “was not. 359-60 (1895) (“in the law to be construed here it is evident that the word ‘may’ is used in special contradistinction to the word ‘shall’”).3d 1. All Rights Reserved. & Cas. e... 1998). Bankers Ins. 703-739-3790 TCNSI. Zerbst. and United States ex rel.47 and often the context will confirm that the ordinary meaning of one or the other was intended. Lopez v. It is a word of limitation as opposed to the indefinite or generalizing force of ‘a’ or ‘an. 902 (1991) (concurring opinion of Justice Scalia) (contending that use of the definite article in the Constitution’s conferral of appointment authority on “the Courts of Law” “obviously narrows the class of eligible ‘Courts of Law’ to those courts of law envisioned by the Constitution”). normally creates an obligation impervious to judicial discretion. No claim made to original U. Siegel v.” Rastelli v. Moore v.” “words importing the singular include and apply to several persons.. Milberg Weiss Bershad Hynes & Lerach. 46 Use of both words in the same provision can underscore their different meanings.S.S. 23 (2d Cir. ordinarily “shall” is mandatory and “may” is permissive. 49 See. Prop.3d 1293. 2003) (reference to “the” use of a drug is a reference to an FDA-approved use. government documents. Freytag v. Singer ed. 782 F..g. 6th ed. Cir. but was instead a clarification of the [Railway Labor Act’s] original purpose [of establishing] a system for peaceful adjustment and mediation voluntary in its nature”).com 13 . 51. the issue often being whether the statutory directive itself is mandatory or permissive. But cf. v. “Will” and “must” can be additional mandatory words.g. 1298 (11th Cir. Illinois Cent R.2d 17. 4-5 (D.C. 47 44 Congressional Research Service 9 Copyright ©2010 by TheCapitol. See. 1999). Underwriting Ass’n.3d 363. 26. 295 U. See also discussion in Gutierrez de Martinez v. 1986). 35 (1998). Mercury Marine.50 Thus. “The use of a permissive verb—‘may review’ instead of ‘shall review’—suggests a discretionary rather than mandatory review process.49 Singular/Plural An elementary rule of statutory construction is that the singular includes the plural. however. 48 See. or things.. Warden. 868. 369 F.S.9 (1995) (“shall” sometimes means “may”).R. 353..g... Angelone.3d 998. not to “a” use or “any” use).S. parties. 137 F.’ we conclude that . and viceversa.S. Co.. e.S.). Escoe v. 231 F. 515 U. contrasts with the legislators’ use of a mandatory ‘shall’ in the very same section”). a statutory directive that the Secretary of Transportation require automakers to install a warning system in new cars to alert drivers “when a tire is significantly under-inflated” is American Bus Ass’n v. Lamagno. v. STATUTES AND STATUTORY CONSTRUCTION § 25:4 (Norman J.3d 1348. 417. 188 F. Commissioner. an indication of a change in policy. there is only one order subject to the requirements”). 45 These words must be read in their broader statutory context. 230. Florida Res.
that a word is known by the company it keeps. 54 (2d Cir. the general words are read as applying only to other items akin to those specifically enumerated. an exemption from arbitration for “contracts of employment of seamen.S. are significantly under-inflated. 105.S. 499 U. Keffeler. Fourco Glass Co. 371.” limited the scope of “discovery” to activities associated with the oil and gas and mining industries. v. v. 561.”56 Thus.D.. 228 (1957) (citations omitted). by some maxim pointing in a different direction.g. 578. 575 (1995) (reading a statutory definition as limited by the first of several grouped words). Turkette. The same principle is used to resolve conflict between two statutes. United States v. 26. 303.3d 39.55 A corollary. 703-739-3790 TCNSI. Mancari. 576. or any other class of workers engaged in . See also Morton v.” and obviously applies outside of antitrust and similar laws). 417 U. 452 U.S.S. Woods. 588 (1980).” as used in conjunction with “exploration” and “prospecting. commerce” did not apply to the case of a salesperson at a consumer electronics store: only contracts for the employment of individuals who transported goods and materials were to be exempted. is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to Acts of Congress.S. or prospecting” was held not to apply to income derived from patented cameras and pharmaceuticals that the taxpayers had “discovered. 58 See Norfolk & Western Ry. e. Inc. 523 U. G. 117. 498 U. 78 (1990). more specific statute governs). when the whole context dictates a different conclusion”). Ohio Power Co. Gustafson v. “Canons of construction need not be conclusive and are often countered. or all four tires.com . Norfolk & Western Ry. “where general words follow an enumeration of specific items..S. is in full accord with other sound considerations bearing upon proper interpretation of the clause. instructs that. 54 Dole v.Goverment Series: Statutory Construction and Interpretation Statutory Interpretation: General Principles and Recent Trends not satisfied by a system that fails to warn when two tires on the same side. context and language instead (continued. 73. Adams. 307 (1961). Specific. “However inclusive may be the general language of a statute. 56 Harrison v. Inc. a tax provision that advantaged “income resulting from exploration.” Id. 353 U. 532 U. 129 (1991) (exemption of carriers from “the antitrust laws and all other law. “The maxim noscitur a sociis. e. that “words grouped in a list should be given related meaning. 550-51 (1974) (a general statute will not be held to have repealed by implication a more specific one unless there is “clear intention otherwise”).53 Another interpretational guide used from time to time is the principle noscitur a sociis. Washington Dep’t of Social Servs. while not an inescapable rule.S. including State and municipal law. All Rights Reserved. 499 U.” Arcadia v. v. No claim made to original U.S. 532 (1998) (later. 384 (2003) (relying on both noscitur a sociis and ejusdem generis). v. 129 (1991) (“the canon does not control . and Associated Words Ordinarily.g. 537 U.S.S... broad and unqualified. of course. 222. it will not be held to apply to a matter specifically dealt with in another part of the same enactment. 2003). 580-82 (1981) (appeals court erred in finding that a second category was merely a more general description of the first. 446 U.”54 Thus. 117. Transmirra Products Corp. Adams v. railroad employees.” Id. of course.S. context can dictate a contrary result. 340 F. 57 The Court has explained that these canons (like many others) are only vehicles for ascertaining the correct meaning of words when there is uncertainty.S. government documents. The principle cannot be applied if the enumerated categories are too “disparate. Train Dispatchers.. Alloyd Co. discovery. ejusdem generis. (2 Cranch) 336. 494 U. Searle & Co.S.. The application of the rule of ejusdem generis in this case.”52 As with other canons. 53 See. 6 U. Inc.) Congressional Research Service 10 14 Copyright ©2010 by TheCapitol. the specific terms of a statute override the general terms. context may reveal that application is inappropriate. PPG Industries. 57 Circuit City Stores. 36 (1990). 55 Jarecki v.S. 517.S. 513 U.” “Discovery. And. 367 U.” is “clear. v. Mineta. United States v.. United Steelworkers of America.. Estate of Romani. See. 58 A less charitable assessment is that the 51 52 Public Citizen. at 115.Net. v. Train Dispatchers.. however... 114-15 (2001). 51 General. 535. 341 (1805)...
government documents.Net. The views expressed are those of the author and not necessarily those of the Federal Judicial Center.com 55 .Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Statutory Structure and Legislative Drafting Conventions: A Primer for Judges M. Copyright ©2010 by TheCapitol. Douglass Bellis Deputy Legislative Counsel United States House of Representatives Federal Judicial Center 2008 This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct education programs for the judicial branch.S. All Rights Reserved. 703-739-3790 TCNSI. No claim made to original U.
Criminal fine conventions 15 G. First attempt at codification—the Revised Statutes of the United States 4 D. Code 5 G. Sections 8 B. 703-739-3790 TCNSI. No claim made to original U. Code. chapters. A second attempt: the U.S. government documents. Naming Conventions 7 A. Subsections and paragraphs 8 C. “Including” means “not limited to” 11 B. a work in progress 5 F. Code 12 D.S. The varieties of legal effect of various parts of the U. Convention relating to cross references within a unit 10 Part III. Definitions under title 1 of the U. Bottom line in dealing with “small divisions” 10 E. Other Conventions That May Be Useful To Know 11 A. Various styles. Complications 4 E. The problem of later amendments to earlier statutes in the “commonlaw” tradition 3 C. Titles. Reliance on title 28 conventions 14 F. The doctrine of functus officio as applied to amendatory Acts 12 C.Net. The bottom line on sources of federal statutory law 7 Part II.Goverment Series: Statutory Construction and Interpretation Contents Introduction 1 Part I.S. and other divisions 10 F. All Rights Reserved. Clauses 9 D. one nomenclature 10 G. Problems with “willful” 16 Conclusion 17 iii 56 Copyright ©2010 by TheCapitol. Use of title 5 conventions 13 E. What is the authoritative text of federal legislation? 2 B. State-of-mind convention for criminal cases 15 H. Sources of Statutory Law 2 A.S.com .
the careful observer can usually 1. one can consult either The Legislative Drafter’s Desk Reference. Consequently. Filson & Sandra L. Dorsey (2006). in automatically applying any given convention precisely because the drafting of legislation is not the careful academic exercise we might hope for. government documents.Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Introduction The circumstances under which statutes are drafted in Congress are often incompatible with long reflection or careful revision. or Legislative Drafter’s Deskbook: A Practical Guide. No claim made to original U. Others have evolved from the experience of drafters over the years. and the two offices retain a relationship that stems from their common origin in a demonstration project conducted early in the twentieth century by Columbia University Law School’s Legislative Drafting Research Fund.S. especially drafters in the separate Offices of the Legislative Counsel for the House and the Senate. As a result. All Rights Reserved. judges often have to puzzle over the solidified remains of a messy political process. Even such matters as how the subdivisions of Acts of Congress are named have largely been a product of this process. The political moment comes briefly.1 Caution should be exercised. Thus essentially oral traditions are passed down and become conventions. By the third quarter of the twentieth century. however.Net. Some of these conventions have statutory or case-law origins. Tobias A. Luckily. the knowledge of which may help judges with statutory interpretation. one or both of those offices participated in the drafting of practically every piece of legislation that passed through Congress. Not only do various political imperatives bring in legislative language written by persons unfamiliar with the usual conventions.com 57 . 1 Copyright ©2010 by TheCapitol. This guide describes the statutory framework of federal law and examines some legislative drafting conventions. It is sometimes difficult to discern any underlying intent through the blurred surface of the legislative language. New attorneys are taught to draft by drafting under the guidance of more experienced attorneys. the attorneys in the two offices influence outside drafters. or left to cool unfashioned. Collectively. further reinforcing conventions over time. For a more detailed examination of federal drafting conventions and techniques in general. Strokoff (2007). Nevertheless. the attorneys influence each other and try to develop a consensus over time on how drafting should be done. Lawrence E. Attorneys in the offices often spend their entire careers there. there are a variety of sometimes little-known conventions that will ease the way of a federal judge through the sometimes opaque world of legislation. 703-739-3790 TCNSI. and the statutory iron must then be struck. but the conventions themselves change over time to reflect changes in public thinking and legal trends.
S. especially how amendments are drafted and reflected in widely used editions of the law. the U. This in general seems to work just fine. if there is any reason to doubt the accuracy of some purported copy of them presented to the court as being the law of the United States.S. Thus. authenticated by signatures of the appropriate Congressional officers according to the customs of Congress. In rare cases judges might have to examine them. Even though virtually all of federal law is statutory in derivation. and some are “legal” evidence. the only authentic version of a law of the United States is the actual physical document that was passed by Congress. What is the authoritative text of federal legislation? What constitutes the authoritative text of federal legislation has deeply affected drafting conventions and approaches. as we mentioned. None is conclusive. Sources of Statutory Law A. perhaps because a number of enterprises earn their living by providing reliable copies of laws.) In fact. National Archives. In effect. 703-739-3790 TCNSI. Before we turn to a few of the drafting conventions currently in use. (See 1 U. starting with the conventions can greatly help in the task of interpreting a statute.Goverment Series: Statutory Construction and Interpretation Statutory Structure and Legislative Drafting Conventions: A Primer for Judges articulate a reason for a departure from the conventions in use at the time a particular piece of legislation was drafted.S. As we will see. 2 58 Copyright ©2010 by TheCapitol. § 106a for what we call “promulgation”—actually just putting the official copy as passed by each House into the U. No claim made to original U. let’s examine a preliminary problem for judges trying to interpret statutes.C. government documents. Technically. as we will see. we are still in fact a “common-law” country in the sense that our statutes are not formally arranged in a code that is officially promulgated according to civil-law standards. These documents are. In order to understand how congressional enactments address statutes. and either signed by the President or allowed to become law through the President’s inaction or over the President’s veto. even if the task cannot be a simple mechanical one. All Rights Reserved.com . Code itself is not a fully authoritative edition of all.Net. judges are expected to take judicial notice of statutes to which they have no regular direct access. kept in the National Archives.S. How do we establish a reliable text of a statute? Part I. or even most—maybe not of any—laws of the United States. some copies or versions of law based on these documents are “prima facie” evidence. we need to understand the structure of our hybrid system of statutory law.
even though parts of it were impliedly repealed. was facially. 703-739-3790 TCNSI. How can these amendments be integrated into the original statute so that the lawyers and judges can know what the law as amended looks like? The only form in which the amendments are found in the statute books is as a set of instructions for changing the earlier. government documents.Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Statutory Structure and Legislative Drafting Conventions: A Primer for Judges B. striking parts of existing legislation and adding or substituting others. Congress made additional cut and bite amendments to this new Act. However. §§ 231 et seq.3 2.C. But soon after. source of rules of decision. 45 U. the primary legal text for federal law. sometimes through inadvertence the amendments made by a later law cannot actually be literally executed to the earlier law. Usually. in the process renaming it the Railroad Retirement Act of 1974. Many of the conventions of federal drafting owe something to this fact. left unchanged by the “amendment.S. He was not successful in doing so. The problem of later amendments to earlier statutes in the “commonlaw” tradition There is one area where this system is a little creaky: where there are amendments by later Congresses to laws passed by earlier ones. For example. Congress. an amendatory statute will amend an earlier statute “to read as follows” and so provide a complete substitute and updated text. The new rule would prevail over the old rule as a later enactment. Constitution. 3 Copyright ©2010 by TheCapitol. though. these amendments are in a form called “cut and bite” amendments. Sometimes it was difficult to know how much of an older statute was still in force.S.com 59 . All Rights Reserved. given the lack of congruence between the application of the new rule and the old one. legislative drafting technique of interpolating amendments directly into the text of the U. James Madison had planned to introduce the then-modern.S.Net. for its first century or so. The attempts of Congress to deal with this problem have created a rather confused cross between a civil-law code system and a common-law statute system for federal law. so the 1974 text is no longer authoritative. would simply pass a new rule in a new statute. In a few cases. if not substantively. and perhaps not the most important. original statute’s text. What then? This problem of how to show changes is even more significant in federal law than it would be in a purer “judge-made” common-law system where statutes are not the only. that traditional approach is still used for constitutional amendments. Indeed. No claim made to original U. This is probably one reason the modern method of cut and bite amendments has proved so popular and almost altogether eclipsed the traditional common-law approach. which continues to exist in the books in its original form. which amended the Railroad Retirement Act of 1937 by completely rewriting its text. 3. if not radical. perhaps following this lead. The problem is not a new one either. see Public Law 93-445. The earlier statute.” so judges would just have to know it no longer applied as written.2 This form of amendment often results in there being no fully authoritative text of the original law as later amended by another statute.
Richard J. and execute those amendments seriatim to create a text of the law as amended. the bankruptcy law or the criminal code. anyone who wants can start with the original statute and each succeeding statute that makes the cut and bite amendments. (These various “codes. as we shall see later) in section 1983 and those near it in title 42 of the U.S. such as the Internal Revenue Code. we have already seen that there is no formal document that shows the law as amended. 113. 4 60 Copyright ©2010 by TheCapitol. including the English-speaking “common-law” world. Some parts of it are still in effect today. No claim made to original U. All Rights Reserved.) 4. 18 Stat.com . Complications When cut and bite amendments are made in a statutory common-law system. notably certain civil rights statutes. government documents. see United States Statutes: Historical Outline and Source Notes. McKinney (2004) (available at http://www. pt. It seems to have been argued that the existing system gave the public too little usable notice of what the laws were (and perhaps the courts too great an ability to resolve ambiguities however they liked rather than as Congress intended). It was intended that any amendments in the future would be made by changes to the Revised Statutes’ text.pdf).S.” or simply the “Revised Statutes”). First attempt at codification—the Revised Statutes of the United States The problem was made more complex in the mid nineteenth century by a general American movement toward the “code” system of statute law. a practice that had by then become the custom in most parts of the world. 3. 703-739-3790 TCNSI. 1874. ch. Code. 1874. are not truly codes in the European sense.Goverment Series: Statutory Construction and Interpretation Statutory Structure and Legislative Drafting Conventions: A Primer for Judges C. The enactment of the Revised Statutes of the United States was approved by the President on June 20. or with Collier’s or West Publishing Company’s compilations of commonly used statutes. In theory. such as those “codified” (this turns out to be a loaded term that is not used to mean consistently the same thing. D. For a complete and detailed outline history of the statutes of the United States and their legal sources throughout its history.4 Earlier statutes were repealed and the new Revised Statutes supposedly represented a complete statement of generally applicable federal law. 333. We call those texts “compilations.” by the way. This movement resulted in a complete restatement and reorganization of federal statutory law in the Revised Statutes of the United States of America (hereinafter referred to as the “Revised Statutes of the United States.llsdc.org/sourcebook/docs/us-statutes-outline. but the fact we often use that name indicates how strongly a definitive text is desired by users. See the Act of June 20. So the Revised Statutes of the United States became just another law of the United States.Net.” Many of us are familiar with CCH or Prentice Hall.
S. Like the Statutes at Large (the only official publication of the Acts of Congress. 5 Copyright ©2010 by TheCapitol. This may have contributed to the Revised Statutes’ general failure to wean Congress from Congress’s earlier loose statutory ways. it is far from complete. and for the same reason (namely that they were enacted as an Act of Congress). Sometimes when someone says a title of the U. a work in progress The Revised Statutes of the United States did not satisfy those wishing for reform in the way statutes were presented. The problem of authoritative compilations was finally addressed.S. And then things stalled again. The varieties of legal effect of various parts of the U. a single statute or Act of Congress. 703-739-3790 TCNSI.C.S.com 61 . advocates were able to establish. While the process of “codification” continues. Code. § 204).S. A second attempt: the U.S. § 112 and 1 U. Code seems increasingly burdened by changes in the way Congress divides national problems for legislative solution. Acting through the House Judiciary Committee. Much of the bar. Code—cumulatively integrating the cut and bite amendments Congress has made to those titles— 5.C. as enacted. Code has been codified. especially the New York state bar. The existence of a defunct title.” Section 204 also makes the compilations updating the “enacted” or “codified” titles of the U. Code.5 F. Code. several “titles” of this as-yet-incomplete U. set forth seriatim in their native.Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Statutory Structure and Legislative Drafting Conventions: A Primer for Judges There appears to have been no official regularly updated compilation of the Revised Statutes integrating the cut and bite amendments to the original text. continued to push for change. This single code was called the United States Code.S.S. made possible the incorporation of the “new” topic of homeland security without breaking the fifty-title structure. for the first time in American history.S. Starting with those laws in the jurisdiction of the Judiciary Committee of the House. those titles are “legal evidence” of what are the laws of the United States (1 U. but that may be a process difficult to repeat.S. you will find at the front of each volume a listing of its “titles. Code In examining the U. by the early twentieth century. an Office of Law Revision. for example.S. The Office of the Law Revision Counsel would periodically publish updated compilations showing the cumulative cut and bite amendments that Congress had made to earlier laws. All Rights Reserved. Code. and the original fifty-title framework for the U. form). E. Those with asterisks have been enacted into law as titles of the U. Notice these sections do not say “conclusive.Net. No claim made to original U. the new codifiers got off to a good start with the enactment as “positive law”—that is.” some with asterisks and some without.S. government documents. which would be charged with bringing those laws enacted independently of the Revised Statutes into a single code with the Revised Statutes. this is what they mean. has come to suffer from elephantiasis. title 6. So title 42.
never passed by either House of Congress or signed by the President.S. in nearly every case. 6 62 Copyright ©2010 by TheCapitol. Title 11 of the U. So you might think you could rely on “codified” titles of the U. such as was the case with title 18 in 1948.”7 As we have mentioned. and arranges them into titles.S. Welden. This work. 377 U. v.Net. Cir. 355 U. the United States Code version is therefore more up to date than the Statutes at Large version of the Securities Act as originally enacted.2d 1132 (D.S. such as the Securities Act of 1933. giving the sections new numbers and making various other form changes in them. In some cases.6 However. Code.S. Code are updated with the cut and bite amendments Congress has made to the original Act. 7.S. even where there is no discrepancy or ambiguity.S. Code as fully as you could on the statutes at large. Code. Code not enacted by Congress as positive law. All Rights Reserved. 460 U. The other titles of the U.S. Nashville Milk Co. Nor are the updated compilations of those titles that the Office of the Law Revision Counsel from time to time makes. dealing with bankruptcy..S. they are “prima facie” evidence of what is the law of the United States. Code that has not been enacted into positive law). The Office of the Law Revision Counsel takes statutes. North Dakota v. government documents.8 Congress has. cautioned that it intends no substantive change in the laws so codified (and seemingly repealed). in theory the underlying stat- 6. Indeed. Donovan. No claim made to original U.g. Code are in fact an attempt by the Office of the Law Revision Counsel to make sense out of and organize as a part of the U. upon originally enacting a title of the U.com . the underlying statutes continue to be “legal evidence. Congress has reenacted an earlier title of the U. A number of cases deal with the effect of the placement of material from “uncodifed” statutes into those parts of the U.S. people might say the Securities Act has been codified to title 15 of the U. Also. Code are “legal” evidence of the laws of the United States. This could still be challenged by resort to the true statute version found only in the National Archives. is an important exception. and other details are different. Carnation Co. though this is a different use of the term “codification” than we have been making. on some occasions.S. Code those statutes that are not yet “codified” in it as positive enactments. But by reason of that same section 204.C. 830 F. the “codified” (in the sense of “enacted as positive law) titles of the U. 703-739-3790 TCNSI. Periodically. However. Even though the presentation. E. is not technically the law of the United States. Code with substantive modifications.Goverment Series: Statutory Construction and Interpretation Statutory Structure and Legislative Drafting Conventions: A Primer for Judges “legal evidence” for their content. United States. these “titles” of the U. Code.S. 1987).S. CNA Fin. Presumably any apparent discrepancy or ambiguity in language in the codified title must be resolved by reference to the underlying and supposedly repealed mass of statutes brought into the codified title.S. United States v. 95 (1964) (recourse must be had to the original statutes when construing a section of the U.S. 8. v. 373 (1958) (an error made by the Law Revision Counsel has no effect). section numbering..S. Corp. just as the Statutes at Large are. 300 (1983) (classification decisions given no weight).
Union Pac. Among the most important are those relating to the naming of subdivisions of a statute. depart very substantially from the conventions. Only the National Archives has the real thing. All Rights Reserved. Part II. to the extent that they are selfexecuting. (Many commercial companies produce these. government documents. 456 F. 9.R. 7 Copyright ©2010 by TheCapitol. finding an authoritative copy of the laws of the United States is a tricky job. but often sufficient. of Am. are the versions of laws found in uncodified titles of the U. but often good enough. Bhutani.Net.. Least authoritative.3d 335 (3d Cir. The next best thing is a compilation made by applying the cut and bite amendments from amendatory statutes to a statute not yet codified.3d 54 (2d Cir. literally over the centuries.) Not nearly as good. 2006).com 63 . United States v. and the effect of a compilation by the Secretary of State of the Treaties in Force of the United States (since these may. 2001). So it may come as a surprise that there are naming conventions about basic subdivisions of federal laws that have been (mostly) observed consistently over the entire range of statutes. is to look to the U.Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Statutory Structure and Legislative Drafting Conventions: A Primer for Judges utes would trump the codified title!9 Needless to say. Sompo Japan Ins. so caution must be used in applying them. Ward. As we have seen. v. No claim made to original U. 703-739-3790 TCNSI. it is not surprising that some laws. this creates yet another possibility for confusion in determining what are the laws of the United States.10 G. There are also sections in title 1 of the U. 266 F. be fully as authoritative as a statute) (section 112a). Code. we have the context in which we can consider drafting conventions. Co.S. federal law is a disparate collection of statutes enacted in differing styles. Naming Conventions Having established the authoritative texts of statutes. The bottom line on sources of federal statutory law So.S. R. especially older ones. 1997). Code in its current edition (but with care for recent enactments that are in force but found only in the Statutes at Large and not yet in the current edition of the Code or even its supplements) for laws in titles that have been codified. However. in the sense of enacted as such. Code dealing with the effect of a compilation by Little and Brown (section 113) of the laws of the United States. to sum up.S. United States v. and in many areas they are used to such a great extent that errors in them are assumed to be in the “real” law of which they are unofficial compilations. 131 F.3d 661 (7th Cir. 10. I am grateful to Peter Lefevre for drawing these cases to my attention. a compilation few modern people have ever laid eyes on.S.
Like every convention. These subdivisions of a section are called paragraphs—not subsections—even though they generally are not technically paragraphs. 2. No claim made to original U. The subdivisions are meant to separate out partial sentence elements. with several subdivisions. But sometimes the section is one complete idea. These are designated by lowercase letters: “(a). Because of the custom of not designating the first section. Probably this represents a misunderstanding of the structure of statutes. but in some old statutes this will not be so. 8 64 Copyright ©2010 by TheCapitol. and almost all federal laws use it. the text of a law. but no section 2. It has a main idea. All Rights Reserved. They are designated (usually) with Arabic numerals: “(1). has been divided into sections. so now you will at times see a statute with a designation of a section 1. but are instead phrases or clauses. (a)(1) This subsection is pretty complicated. (2) It also has another idea that deserves its own exposition. Sections Almost always. if divided at all. but it has become somewhat entrenched. That may have been its first use. some people decided these were “single section” laws.Goverment Series: Statutory Construction and Interpretation Statutory Structure and Legislative Drafting Conventions: A Primer for Judges A.Net.S. from the earliest days of the Republic.Typically they are numbered with Arabic numerals.com . 2. (2) the second idea. government documents.” etc. This section is supposed to convey— (1) the first idea.” “(b). Subsections and paragraphs A section in turn is normally divided into subsections. These sections either have the designation “section” (although for a while it was the convention not to have any designation for the first “section”) or the designation “sec. Some laws are so short they do not really have any subdivisions. And yet. independent sentence or sentences when it is used as a subdivision of a subsection. and why it got the name. and (3) a third idea. these are sometimes violated.” etc.” (after the first section). a paragraph can be a full. Each subsection is a complete sentence and idea within itself.” “(2). the section is the most fundamental division of federal law. 703-739-3790 TCNSI. none of which is itself a full sentence. An example might look like this: Sec. B. It might look something like this: Sec. Still.
if needed— (i) will be run-ons. such as exceptions. Headings are usually used now. (a) In General—In a well-written statute. in these illustrations.—There have to be at least two of them to make it worthwhile to do this. 703-739-3790 TCNSI. definitions. the later subsections are for details that flesh out the main idea covered in the first subsection. government documents.Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Statutory Structure and Legislative Drafting Conventions: A Primer for Judges For now. things like that. special rules. like this: (A) By this level of subdivision. (II) It will always have to have more than one. (b) Some Lesser. 9 Copyright ©2010 by TheCapitol. (B) You can’t have a subparagraph (A) without a (B).” Subclauses use large Roman numerals. Usually they are called clauses and subclauses. there would never be any further subdivisions. though. But in dense statutes. it is likely that further subdivisions. designated usually with capital letters: “(A). we have not used headings for the various parts. So we have a section divided into subsections or sometimes paragraphs. like a paragraph. It is typically designated with a small Roman numeral. 2. But either one of them can be divided further. Clauses In an ideal world. such as “(i)” or “(ii).” “(B).” So you could get something that looks like this: SEC.Net. C.—If there are sub-ideas. IMPORTANT OVERALL TOPIC. and in a few cases will include their own subdivisions as follows: (I) A ridiculously oversubdivided section can have these. All Rights Reserved. but Independent Idea.com 65 . they are sometimes found. At this point it is easier to see the units without the headings. No claim made to original U. (1) Sub-idea One. The subsections divide into paragraphs. A clause. and (ii) will look something like this. the drafter may have stopped using headings.” etc. Paragraphs may have subparagraphs.—Usually.S. such as “(I)” or “(II). is not necessarily grammatically a clause. (2) Sub-idea Two. but we will discuss that later. they will show up looking something like this. the main idea of the section will come first and be elaborated here.
or another section in the same law. Or you could say that clause (ii) of section 2(a)(2)(A) has two subclauses. but sometimes all are. I actually used two rather different styles.” all relatively clearly labeled.” shown in the first examples. and in most cases it is obvious from the labeling. and more indentations where there are subdivisions. But the conventions about naming the subdivisions are the same in both styles. chapters. several different “Acts” of Congress are combined. It is characterized. each Act being called something like a “division. which has more headings. though. So it causes little confusion even if it is aesthetically questionable. Not all of these subdivisions may be used in any given bill. and other divisions Most bills are divided into sections and their subdivisions. F. 703-739-3790 TCNSI. thankfully. one nomenclature You may have noticed that in the examples I gave in the subdivision portion of this. Occasionally. D. Convention relating to cross references within a unit Sometimes you will find a cross reference in a law to another subunit in the same unit. the decisions in cases can turn on the proper use of the nomenclature for smaller subdivisions. such as another subsection in the same section. Bottom line in dealing with “small divisions” In most cases. E.Net.” At times. These are divided into “titles. (I) and (II).” and “subchapters. but some bills are rather too big for that. rare. But in a few cases you might run into the older “traditional style. usually. All Rights Reserved.S.” This is. including omnibus bills with relatively unrelated topics combined together. Various styles. Mostly you will run into the “legislative counsel” style embodied in the longer example at the end of page 9. No claim made to original U. G. Notice that when you combine a number of elements. the main differences are in typeface and presentation. the important nomenclature convention to remember is the difference between “subsections” and “paragraphs. for example. variations in typeface. government documents.” “chapters. you call the whole by the largest and first element in the combination: section 2(a)(2)(A)(ii). you would say that section 2(a)(2)(A)(ii) has two subclauses.Goverment Series: Statutory Construction and Interpretation Statutory Structure and Legislative Drafting Conventions: A Primer for Judges In this example. The convention is that mention of another subunit in the same 10 66 Copyright ©2010 by TheCapitol. Titles.com . by fewer headings and less indentation.
Few would think I meant to exclude that possibility. All Rights Reserved. the woman who gave birth to that human. 11 Copyright ©2010 by TheCapitol. there seems a worry that “including” means that what follows is a complete list of the elements. But in legal writing in general. As used in this Act— (1) the term “mother” means. indeed probability. that others are parents as well. 45. Other Conventions That May Be Useful To Know A. If I say I have some change in my pocket.” Even by the context. the intent is to provide the same rules for explosive devices that are provided for firearms. most people would expect that I might have some other coins as well. “includes” or “including” is used to bring into the coverage of the provision something that is rather counterintuitive.com 67 . Usually you will see “subsection (b)” rather than “subsection (b) of this section. Very often. Notice that paragraph (1) uses the word “means. 703-739-3790 TCNSI.S. What follows is a full and final definition. “Includes” is typically used in definitional sections.Net.Chapter 2: Statutory Structure and Legislative Drafting Conventions: A Primer for Judges Statutory Structure and Legislative Drafting Conventions: A Primer for Judges unit does not require reference to the overall unit. “Including” means “not limited to” It has become a convention in federal law that the term “including” means what it usually means in English.” The “but not limited to” should be thought of as surplusage. You might have a section that looks something like this: SEC. There are even a few federal laws that use the term “including but not limited to. so this rather odd locution is used. with respect to a human.” That is like an equals sign in math. you can tell it is not intended to equate “parent” with “mother. No claim made to original U. government documents. Perhaps you might find something like “The term ‘firearm’ includes any explosive device. It is a nonexclusive “for instance” type of phrase.” but leaves open the possibility. including a penny and a dime.” While it might not make much sense in common speech. DEFINITIONS. But paragraph (2) uses the word “includes. and (2) the term “parent” includes mother.” Part III.
Goverment Series: Statutory Construction and Interpretation
Statutory Structure and Legislative Drafting Conventions: A Primer for Judges
B. The doctrine of functus officio as applied to amendatory Acts
Since the cut and bite amendment form has taken hold, it seems logical to recall that once the amendments made by an amendatory Act take effect, that Act is, to that extent, something of a spent force, almost a nullity. We can think of the amendatory Act as a sort of ship carrying passengers to the Act being amended. Once those passengers get out and go to that other Act, they are no longer really on the ship. Very occasionally, Congress will try to amend an amendatory Act that has taken effect. Kindly courts might wish to follow the evident intent by transferring those amendments to their real home, the Act amended, but this can be difficult if subsequent amendments to that Act change the context of the changes made in the earlier amendatory Act.
C. Definitions under title 1 of the U.S. Code
There are a number of statutory default provisions that drafters of federal law often rely on, without referring to them by location in the law. These include the definitions and general provisions in title 1 of the U.S. Code; using “on the record after opportunity for a hearing” in connection with administrative rule making and adjudications; the avoidance of citation of civil venue and jurisdiction statutes; the provision for alternate and sometimes larger fines under section 3571 of title 18; and the convention that, in criminal statutes, the state of mind required for the conduct elements of the offense also applies to the circumstances and results elements of the offense. Drafters usually follow these conventions, but not always. When they do not, it is usually because someone has added into the law repetitive or surplus recitations. This can result from an attempt to reassure persons not as familiar with the defaults, or from simple inadvertence. Let’s look at each individually. Section 1 of title 1 of the U.S. Code provides a number of definitional conventions. There is a broad definition of “person” that includes most organizations and applies unless an individual law otherwise provides. The singular is deemed to include the plural and vice versa. Other definitions and provisions at the beginning of title 1 provide useful shortcuts for drafters, though sometimes traps for the unwary. One such trap is the default definition of “person.” This includes all sorts of groups and associations as well as natural persons. Combined with the rule, also set forth in section 1, that the singular includes the plural, this can create a much more sweeping provision than the casual reader might have expected. Congress often uses the word “person” when in fact they mean “individual.” Since section 1 has an out, namely the exception “unless the context indicates otherwise,” it may be necessary to apply this definition with caution.
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Chapter 3: Considering the Courts: Statutory Interpretation
The following chapter is from Legislative Drafter’s Deskbook, by Tobias A. Dorsey (Chapter 3).
For more information, see its web site at <www.LegislativeDraftersDeskbook.com>. Copyright ©2006 by TheCapitol.Net. All Rights Reserved.
Considering the Courts: Statutory Interpretation
3.01 Courts: The Most Important Audience 3.02 What Kind of Judge?
3.50 Considering Constitutional Issues
3.51 Avoiding Serious Constitutional Problems 3.52 When the Court Requires Clear Statements 3.53 When the Court Requires Specific Findings
3.10 Judicial Power and Legislative Supremacy
3.11 The Power to Interpret 3.12 Making Congress Follow the Techniques 3.13 Tensions between Courts and Congress over Interpretation 3.14 Efforts by Congress to Regulate Interpretation
3.60 Actions by the President and Other Executive Officers
3.61 Presidential Signing Statements 3.62 Agency Interpretation and Chevron Deference
3.20 The Overriding Goal: Determine the Intent of Congress
3.21 Rules of Thumb, Not Rules of Law 3.22 Three Common Theories (Intentionalism, Textualism, and Pragmatism) and Their Limitations 3.23 The Plain Meaning Rule 3.24 The Meaning of “Plain Meaning” 3.25 The Consequences of Plain Meaning 3.26 When Plain Meaning Is Not Enforced 3.27 When There Is No Plain Meaning
3.70 Actions by the Congress and Other Legislative Officers
3.71 Interpretation of Appropriations Acts 3.72 Legislative History: Why It Is Problematic 3.73 Legislative History Compared with Post-Enactment Statements 3.74 Legislative History Compared with Subsequent Legislative History 3.75 Report Language 3.76 Individual Statements 3.77 Hearing Testimony 3.78 Amendatory History 3.79 The Opinion of the Drafter
3.30 Reading the Text of the Statute
The Whole Act Rule Derive Meaning from Context Assume Words Are Used Consistently Assume Each Word Is Used for a Reason Assume the Provisions Form a Coherent Whole 3.36 Purposes, Findings, Titles, and Headings 3.37 Grammar and Punctuation 3.38 Placement in Code 3.31 3.32 3.33 3.34 3.35
3.80 Some Topics of Special Interest to Drafters
3.81 Definitions and Terms of Art 3.82 Narrow Interpretations and Broad Interpretations 3.83 Congress Does Not Mumble 3.84 How the Court Interprets a List 3.85 The Court’s Reluctance to Imply Additional Exceptions
3.40 Considering Other Statutes
3.41 3.42 3.43 3.44 Related Statutes General Federal Laws Earlier Versions of the Same Statute Resolving Conflicts between Statutes
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Goverment Series: Statutory Construction and Interpretation
All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
James Madison, The Federalist Number 37
The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Oliver Wendell Holmes Jr.
(1) Read the statute; (2) read the statute; (3) read the statute!
Justice Frankfurter’s “threefold imperative to law students,” as related by Henry Friendly, Benchmarks 202 (1967)
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and advise your client. but a deft one—farfetched. you need to understand how and why that happens. § 3. Regina v. “Statutory interpretation.Net. and yet not completely absurd.” the court observed.” For the full text of this case. The shooter was charged with killing a “small bird” in violation of the Small Birds Act.S.com 77 . “has forced many a horse to eat birdseed for the rest of its life. To draft effectively. and the question on appeal was whether a pony was a “small bird” within the meaning of the act. Courts can and do read statutes in odd ways at times. you need to get inside the mind of the audience and understand how the audience thinks. accordingly. but on what the audience thinks the draft means. 703-739-3790 TCNSI. As a drafter. Ojibway is a work of fiction. then. so that you can draft. 8 Criminal Law Quarterly 137–139 (1965). government documents. but most are intended to be read.00 Introduction Chapter 3 As described in the Canadian case of Regina v. see Appendix Six. But who is the audience? 61 Copyright ©2010 by TheCapitol. Ultimately. No claim made to original U. Ojibway.Chapter 3: Considering the Courts: Statutory Interpretation Considering the Courts: Statutory Interpretation § 3.01 Courts: The Most Important Audience Some drafting projects never see the light of day. The court held that it was. the effect of a draft depends not on what you think the draft means or on what your client thinks the draft means. All Rights Reserved. a pony bearing a down pillow for a saddle was shot to put it out of its misery.
The courts always have the last word. The draft will be read and interpreted by legislators. In short.) There are other audiences. (It is also known as statutory construction. it is used to determine 62 78 Copyright ©2010 by TheCapitol. Your job is to do all you can to give effect to the policy. and scholars. the most important audience (apart from the client) is the federal courts—and. not to rest on language that you think is clear. not the best advice. through judicial methods of statutory interpretation. should be given the meaning X.Goverment Series: Statutory Construction and Interpretation §3. You probably would argue that the statute is clear and the plain meaning is X—but you must also be ready to argue that the statute.com . All Rights Reserved. government documents. No claim made to original U. For consistency’s sake. of course. concurring). to put it delicately. . collectively. private individuals. and the Supreme Court has the very last word: “We are not final because we are infallible. Some who write about drafting have argued that a drafter does not need to be much concerned with statutory interpretation.” Indeed. to name a few. but in two ways they are all alike: Each wants to know the effect of the draft. They are irrelevant because the draftsman who tries to write a healthy instrument does not and should not pay attention to the principles that the court will apply if he fails. 703-739-3790 TCNSI. The suggestion that you should not have a fallback position in drafting is bizarre. Statutory interpretation applies at all times to all instruments. 443. This is. .S. this book uses “statutory interpretation” throughout. you need a fallback position. many rules of interpretation are simply irrelevant. In some ways these audiences are very different. journalists.01 Legislative Drafter’s Deskbook: A Practical Guide In drafting federal law. it is not difficult to get inside the mind of the Court and understand how it thinks. the Supreme Court of the United States. The Fundamentals of Legal Drafting 54 (1965). not just to those that are not. you thereby control how others read that text as well. lobbyists. Allen.Net.” Reed Dickerson. the differences between the two terms are not great. 344 U. public officials. industry leaders. for example.. Suppose you were an appellate lawyer trying to convince a court that a statute means X. but we are infallible only because we are final. Reed Dickerson. Fortunately. The Court makes this process public in its published opinions. argued as follows: “For the draftsman. in particular. and each recognizes that the effect is ultimately determined by the courts. “healthy. the process is known as statutory interpretation. . even if unclear.” Brown v. as Dickerson put it. J. When you control how a court reads a text. 539 (1953) (Jackson.S.
government documents. 703-739-3790 TCNSI.S.com 79 . § 3. Can you safely assume that the audience is a “good-faith judge”—one who will give your words the benefit of the doubt—or should you assume that the audience is a “bad-faith judge”—one who will actively try to twist and evade your words? This is sort of like asking whether you should be cynical or naive. the judge has to resolve a duel between warring lawyers—a duel that came about because your language is problematic.02 whether an instrument is healthy in the first place. some are counterintuitive. Perhaps if the Supreme Court were abolished and replaced by a single judge the question might be worth more study.02 What Kind of Judge? Among those who write about drafting there is a curious debate about what kind of judge should be considered the primary audience. All Rights Reserved. The concern is that a careful court. will see a plausible meaning that you failed to see. It is used to decide what a healthy instrument means. 63 Copyright ©2010 by TheCapitol. Do not assume the judge is sympathetic to you and your intended meaning. If it helps your process to have in mind a particular kind of judge. Do not expect the judge to cut you any slack. or on its own initiative. It is true that many principles of statutory interpretation are simply general principles about how best to read English prose. stop on red. It’s not really a useful choice. You should be realistic. Thanks to you. signal before turning. and what an unhealthy instrument means. sooner or later you will park in front of a fire hydrant or go the wrong way down a one-way street. but what a majority of the nine justices on the Court say it is. try the middle ground: Assume the judge is open-minded and skeptical. prodded by a persuasive attorney. But many are not. But rules of interpretation are like rules of the road: Drive on the right. some are traps for the unwary. No claim made to original U. If you don’t know all the rules. You can try to draft without paying attention to statutory interpretation.Chapter 3: Considering the Courts: Statutory Interpretation Considering the Courts: Statutory Interpretation §3. The audience is almost certainly not a single judge. Some are obvious. But the fact is that a law is not what any one judge says it is. Ultimately. pedestrians have the right of way. some are subtle. the concern is not so much that a rogue court will invent an implausible meaning that mangles your statute.Net.
considered sources such as law review articles.com . 177 (1803).” Marbury v. a court left to its own devices can interpret a statute using any technique that it likes. the court interprets the relevant law. Most importantly. such as the works of Shakespeare or Conan Doyle. (Courts in a civil law system. the court finds which facts have been proven. the court applies the law as interpreted to the facts as found. and third. Courts have. social context. § 3.) Specifically. This means that the federal courts do not have power to issue advisory opinions.10 Judicial Power and Legislative Supremacy The judicial power of the United States is vested by the Constitution in the Supreme Court of the United States and any other federal courts established by law. 137.S. 5 U. The court can consider the sound of a cat and the breath of a fish. First. 703-739-3790 TCNSI. This chapter is concerned primarily with the second function. All Rights Reserved. though the second and third functions sometimes blend together.10 Legislative Drafter’s Deskbook: A Practical Guide § 3. for example. are not. Left to its own devices. most courts are bound by custom—if not by law—to follow precedent. and general principles of public policy. history. second. The judicial power can be exercised only in cases and controversies. and in other cases because the language. didn’t anticipate (and doesn’t squarely address) a controversy of the sort before the court.Net. courts are bound by law to follow the Constitution and the laws of the United States. “it is emphatically the province and duty of the judicial department to say what the law is. They occasionally invoke poetry or literature.Goverment Series: Statutory Construction and Interpretation §3. a court is bound to follow the precedents of courts that are higher in the 64 80 Copyright ©2010 by TheCapitol.11 The Power to Interpret As a general matter. This also means that federal courts do not interpret statutes as an abstract exercise. a court actually performs three separate functions. a court can look to anything under the sun that it considers persuasive. A court interprets a statute in some cases because the language is unclear. Madison. As Justice Marshall famously put it. No claim made to original U. government documents. state law. they always have a particular case before them with a particular pattern of facts. Also. though clear. The task of courts is to interpret and apply the law. Of course. In resolving cases and controversies. courts are not left entirely to their own devices.S. such as the courts of Louisiana.
490.” Hilton v. “Congress remains free to alter what we have done. have seen fit to create them. States Marine Lines. in their discretion.Chapter 3: Considering the Courts: Statutory Interpretation Considering the Courts: Statutory Interpretation §3. what is most important to the Court is that it get the answer right (even if it takes several tries).11 judicial “chain of command.Net. The power to create specific techniques of statutory interpretation is seen as part of the judicial power. 403 (1970). A statute. and for faith in the judiciary to be maintained.” A court is not bound to follow the precedents of every higher court.S.” Patterson v. The Constitution is not an easy document to amend. so society might be long stuck with a wrong answer if the Court did not overrule itself. the Court is somewhat flexible about overruling its past decisions. 375. South Carolina Public Railways Commission. 502 U. for disputes to be settled. techniques of interpretation have generally not been enacted 65 Copyright ©2010 by TheCapitol. 164. No claim made to original U. See Moragne v. and each trial court is bound by the precedents of both the Supreme Court and one circuit court. the Supreme Court—having no higher court—is not bound to follow any precedents—its own or anyone else’s. it abides by that answer. 398 U.S.S. is a relatively easy document to amend. See Webster v. That said. such as the need for laws to be clear and reliable. 491 U. “Very weighty considerations” underlie the doctrine. The doctrine of stare decisis “is of fundamental importance to the rule of law. such as if the past decision is unworkable or the rationale for the decision no longer holds. courts do not lightly overrule their own past decisions.com 81 . Thus. government documents. The Constitution does not require that specific techniques be created.S. on the other hand. 197. When interpreting the Constitution. so the Court is much less willing to overrule itself. All Rights Reserved. though—as with statutes—the courts have been reluctant to do so. 172–173 (1989).S. but it is bound to follow the precedents of the higher courts to which appeals from its decisions are taken. each of the circuit courts is bound by the precedents of the Supreme Court. Remember. 518 (1989) (plurality opinion). 202 (1991). Once created. McLean Credit Union. In constitutional matters. If Congress disagrees with that answer. This is known as the doctrine of stare decisis. As a result. What is most important to the Court is that once it reaches an answer. including itself: No court is bound to follow its own precedents. 703-739-3790 TCNSI. 492 U. A court is not bound to follow the precedent of a lower court or of a court of the same level. Reproductive Health Services. but the courts. a court can overrule them in much the same way as a court can overrule a statute.
McNally v. Pierce County v.Net. § 3.com 119 . the Court chooses the harsher only when Congress has spoken in clear and definite language. Henson. one harsher than the other. v. All Rights Reserved. 411. perhaps. unless Congress clearly indicates otherwise. tapping a ruler in its palm. 483 U. “Congress does not mumble. A generalization of this sort is not unlike when a teacher (a Vermont schoolmarm. the Court assumes that a state-of-mind requirement applies to each element of a criminal offense. In other cases the generalization seems to be prescriptive—describing how the Court would like Congress to operate.S. 359–360 (1987).83 Congress Does Not Mumble The Court sometimes makes a sweeping generalization about how Congress operates and uses that generalization as a guide to meaning (or. the Court generally interprets the law “narrowly” or “strictly. 537 U. When the Court disfavors a policy. And perhaps the most important category of laws interpreted narrowly are laws relating to crime and criminal procedure. When interpreting these laws. In some cases the generalization seems to be descriptive—describing how Congress does in fact operate. when there are two rational readings of a criminal statute. 537 U. Statutory procedures for removal should be interpreted strictly.83 Narrow Interpretation. 495 U.S. perhaps?) generalizes to a student. “Students in this class do not mumble. United States v. as a signal to Congress). Inc. 513 U. 703-739-3790 TCNSI.S. XCitement Video. Likewise. 64. Syngenta Crop Protection.Chapter 3: Considering the Courts: Statutory Interpretation Considering the Courts: Statutory Interpretation §3.S. No claim made to original U. the student gets the message—mumbling is not tolerated.” According to the rule of lenity. Inc.” Whether that statement is a description or a command. 129 (2003). because privileges impede the search for truth.” For example: Statutes establishing evidentiary privileges should be interpreted narrowly. United States. government documents. The Court’s generalizations about Congress often come across this way.S. United States.. Guillen.S. Hughey v. 422 (1990). 350.” the Court seems to be saying. 72 (1994). 28 (2002). the Court applies what is called the “rule of lenity. Some examples: 103 Copyright ©2010 by TheCapitol. The Court will resolve any ambiguity in the statute in favor of the defendant.
All Rights Reserved.S. government documents.Chapter 4: A Guide to Federal Grant Statute Drafting A Guide to Federal Grant Statute Drafting By Malcolm S.com 125 . No claim made to original U. 703-739-3790 TCNSI.Net. Mason From Drafting Federal Grant Statutes: Studies in Administrative Law and Procedure 90-1 Administrative Conference of the United States (ACUS) Office of the Chairman Table of Contents is on Page 5 Copyright ©2010 by TheCapitol.
All Rights Reserved.Net.Goverment Series: Statutory Construction and Interpretation 126 Copyright ©2010 by TheCapitol. government documents.com . No claim made to original U.S. 703-739-3790 TCNSI.
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com 135 . 703-739-3790 TCNSI. All Rights Reserved.S. No claim made to original U.Net.Chapter 4: A Guide to Federal Grant Statute Drafting Copyright ©2010 by TheCapitol. government documents.
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com 137 .Net.S.Chapter 4: A Guide to Federal Grant Statute Drafting Copyright ©2010 by TheCapitol. government documents. All Rights Reserved. No claim made to original U. 703-739-3790 TCNSI.
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703-739-3790 TCNSI. All Rights Reserved.S.Chapter 4: A Guide to Federal Grant Statute Drafting Copyright ©2010 by TheCapitol.com 141 .Net. government documents. No claim made to original U.
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com 199 .S.Chapter 4: A Guide to Federal Grant Statute Drafting Copyright ©2010 by TheCapitol.Net. All Rights Reserved. government documents. 703-739-3790 TCNSI. No claim made to original U.
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com 253 .Chapter 4: A Guide to Federal Grant Statute Drafting Copyright ©2010 by TheCapitol. government documents. 703-739-3790 TCNSI.Net. No claim made to original U.S. All Rights Reserved.
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703-739-3790 TCNSI.Chapter 5: Tracking Current Federal Legislation and Regulations Tracking Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff Pamela A.crs. No claim made to original U.com 277 .S. government documents.Net. Hairston Information Research Specialist March 11. 2010 Congressional Research Service 7-5700 www. All Rights Reserved.gov RL33895 CRS Report for Congress Prepared for Members and Committees of Congress Copyright ©2010 by TheCapitol.
S.com . and U. government documents. It includes government sources such as the Legislative Information System (LIS).Net. the Government Printing Office (GPO) Access/FDsys. THOMAS. All Rights Reserved. Congressional Research Service 278 Copyright ©2010 by TheCapitol. 703-739-3790 TCNSI.Goverment Series: Statutory Construction and Interpretation Tracking Current Federal Legislation and Regulations Summary This guide is designed to introduce congressional staff to selected official government and nongovernment sources that are useful in tracking and obtaining background information and specific facts on the status of federal legislation and regulations. This report will be updated as new information is available. Senate and House websites. No claim made to original U.S. Non-government or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) website.
.......................................................8 CRS Resources .................................................................................................................... A Comparison of LIS and THOMAS................................................................................................................................................................................ 11 Congressional Research Service Copyright ©2010 by TheCapitol...............................1 Non-Government Sources ............................................Chapter 5: Tracking Current Federal Legislation and Regulations Tracking Current Federal Legislation and Regulations Contents Introduction ................ No claim made to original U.........................Net....................................................................................................................................9 Selected CRS Reports ................................S............................................6 Official Government Sources ......................... 703-739-3790 TCNSI...............................................................................................1 Official Government Sources ................. government documents.................................9 Classes at CRS......................................................... 10 Appendixes Appendix..... 10 Contacts Author Contact Information .......................6 Non-Government Sources ............................................................................................ Comparison of LIS and THOMAS ............................................................................................1 Tracking Current Federal Legislation .......................7 Media Sources .....................................................................................................................................................................................................................com 279 ......... All Rights Reserved...........................................................9 Tables Table A-1......4 Tracking Current Federal Regulations ............
and its status in the legislative process. the Congressional Record. The Daily Compilation of Presidential Documents (and its predecessor.loc. include Bill Summary and Status. and bill status. and Committee Reports.gov/help/about-alert. when there is new information. Congressional staff often use the LIS Alert Service. appears in the Bill Summary & Status file the day after the introduction of the measure. academic. Accessible only to Members and their staff. including the sponsor and cosponsors. including specialized LIS databases.congress. new public laws.com . official or long title.Net. 703-739-3790 TCNSI. To subscribe.S. this report identifies and provides website addresses and other contact information for official government and non-government sources that are useful in tracking current federal legislation and regulations. and other material released by the White House.gov Congressional Research Service 1 280 Copyright ©2010 by TheCapitol. timely. identified by the LIS logo on the search pages.congress. and government legislative resources.gov The Legislative Information System (LIS) provides Members of Congress and their staff access to legislative information that is accurate.Goverment Series: Statutory Construction and Interpretation Tracking Current Federal Legislation and Regulations Introduction Written for congressional staff. and committee meetings scheduled for the next legislative day. and the History of Bills and Resolutions section tracks action on special bills. Tracking Current Federal Legislation Action on legislation passed or pending in the current Congress. It is the primary source for the text of floor debates and the official source of recorded votes. It also provides information on the Congressional Research Service (CRS) legislative institutes. The subject index section can be used to identify bills by topic. The Record is published each day that one or both chambers are in session. The Record’s Daily Digest section summarizes action in each chamber and identifies committee hearings. which would be useful in learning about this process. Indexes for the Congressional Record are issued twice a month. committees of referral. Once established. Thomas http://thomas. No claim made to original U. is reported in the Congressional Record. except infrequent instances when two or more consecutive issues are printed together. Basic information about bills. It also contains transcripts of presidential messages to Congress. which sends e-mail alerts regarding action on bills and amendments on subjects identified by users.html. and complete. this website is a portal to a variety of commercial. government documents. the Weekly Compilation of Presidential Documents) provides the dates on which the President signed or vetoed legislation. These databases. Official Government Sources Legislative Information Service http://www. The Congressional Record contains the edited transcript of activities on the floor of the House and Senate. All Rights Reserved. alerts run automatically and send e-mails Monday through Friday. speeches. Bill Text. executive orders. go to LIS Alerts at http://www.
gov/legislative/legvotes.shtml House roll-call votes starting with the 101st Congress. Time spans covered vary by title.loc.Net. public laws and other activities of Congress. one can track bills and resolutions. the Federal Register. public laws.gpo.house.html brief descriptions of floor proceedings when the House is in session http://www. (See Appendix for a comparison of THOMAS and LIS.gov This Web source provides legislative details.html directories of Representatives by state and by name http://clerk.house.gov/home/lawsmade.htm • • • • 1 See the FDsys website at http://www.S.html the chamber’s leadership http://www. government documents. second session (1990) http://clerk.house. selected congressional reports and documents. including the following: • • • recent major House floor and committee actions http://www. Such materials include congressional bills.house.house. All Rights Reserved.toc.gov/house/floor/thisweek.house. 703-739-3790 TCNSI.) GPO Access/FDsys http://www.house.htm legislative schedules http://clerk. “GPO’s Federal Digital System (FDsys) is an advanced digital system that will enable GPO to manage government information from all three branches of the U.action The Government Printing Office (GPO) provides free Internet access to a wide variety of legislative.gov/legislative/ background information on and links to material concerning the legislative process http://thomas. and also access the Congressional Record.gpo.gov/house/floor/thisweek. the Congressional Record and the Congressional Record Index (which includes the History of Bills and Resolutions section).S. Using THOMAS. FDsys is available as a public beta during migration of information from GPO Access. No claim made to original U. regulatory.Chapter 5: Tracking Current Federal Legislation and Regulations Tracking Current Federal Legislation and Regulations This Library of Congress (LOC) website makes federal legislation information freely available to the public. the Daily Compilation of Presidential Documents and the Weekly Compilation of Presidential Documents.gov/fdsys/search/home.action.gov/member_info/index.com 281 .”1 House of Representatives Home Page http://www. Congressional Research Service 2 Copyright ©2010 by TheCapitol. government.gov/house/orgs_pub_hse_ldr_www. and the Code of Federal Regulations. and executive materials. congressional calendars.gov/fdsys/search/home.
cfm glossary of common legislative terms http://www.senate.S.htm historical information about the Senate http://www.gov/legislative/common/generic/Doc_Room. Congressional staff can retrieve legislative information and records of the House for congressional offices and the public. call (202) 225-1772.senate.gov Materials of legislative interest offered at this Internet source include the following: • • Senate calendars http://www.gpoaccess.senate.Net. and public disclosure documents.htm Senate roll-call votes starting with the 101st Congress (1989) http://www.gov/pagelayout/committees/d_three_sections_with_teasers/ committees_home.senate.gov/pagelayout/legislative/d_three_sections_with_teasers/ process. and committee reports via the House Library.senate. 703-739-3790 TCNSI. No claim made to original U.house. and GPO Access.gov/legislative/housedoc.gov/about/offices_Lrc. and links to materials on the legislative process http://www.htm the chamber’s leadership http://www.html The Legislative Resource Center (LRC) provides centralized access to all published documents originated and produced by the House and its committees.senate.gov/reference/reference_index_subjects/Leadership_vrd.htm directories of Senators by name. and party http://www. Senate Home Page http://www. House Legislative Resource Center http://clerk.htm • • • • • • Senate Printing and Documents Service http://www.senate. class (term expiration date).com . state.htm Congressional Research Service 3 282 Copyright ©2010 by TheCapitol.gov/calendars/senate/browse. resolutions.senate.html background information on. the historical records of the House.htm descriptions of the Senate committee system and of individual committees http://www.senate.gov/artandhistory/history/common/generic/ Senate_Historical_Office. For assistance regarding the status of current legislation. The House documents room can be reached at (202) 225-7000. government documents.gov/general/contact_information/senators_cfm.gov/legislative/LIS/roll_call_lists/vote_menu_101_1. All Rights Reserved.Goverment Series: Statutory Construction and Interpretation Tracking Current Federal Legislation and Regulations House Documents http://clerk. LOC’s THOMAS.html The House documents website provides electronic copies of congressional bills.house.gov/pagelayout/reference/b_three_sections_with_teasers/ glossary.
All Rights Reserved. 703-739-3790 TCNSI.S.com 291 . government documents.Chapter 6: Legislative Planning: Considerations for Congressional Staff Copyright ©2010 by TheCapitol. No claim made to original U.Net.
com .Net.Goverment Series: Statutory Construction and Interpretation 292 Copyright ©2010 by TheCapitol.S. 703-739-3790 TCNSI. All Rights Reserved. government documents. No claim made to original U.
Chapter 6: Legislative Planning: Considerations for Congressional Staff
Goverment Series: Statutory Construction and Interpretation
Chapter 6: Legislative Planning: Considerations for Congressional Staff
S.com> • Capitol Hill Workshop <www.CongressionalBudgeting.com> • Statutory Construction: A Primer on How to Read and Understand Statutory Text.DraftingLegislation.com> • How to Research and Compile Legislative Histories: Searching for Legislative Intent <www.WordWorkshop.com> • Drafting Effective Federal Legislation and Amendments <www.com> • Understanding Congressional Budgeting and Appropriations <www. Dorsey ISBN: 1587330326 <www.com 299 .Net Resources from TheCapitol.LegislativeResearch. ISBN: 1587330784 • Drafting Effective Federal Legislation and Amendments in a Nutshell. ISBN: 1587330326 • Authorizations and Appropriations in a Nutshell.com> • Advanced Federal Budget Process <www.CapitolHillWorkshop.com> Capitol Learning Audio Courses™ <www.Chapter 7: Resources from TheCapitol. and Monitor Congressional Documents: Going Beyond Thomas <www.LegislativeDraftersDeskbook.TrackingLegislation.com> • Drafting Effective Federal Legislation and Amendments <www.CapitolHillTraining. 703-739-3790 TCNSI.com> Live Training <www. Track.BudgetProcess.Net.DraftingLegislation.com> • Writing for Government and Business: Critical Thinking and Writing <www. All Rights Reserved.com> • How to Find. ISBN: 1587330296 Copyright ©2010 by TheCapitol. No claim made to original U. government documents. by Tobias A.Net Publications • Legislative Drafter’s Deskbook.CapitolLearning.
ISBN: 1587330334 • Researching Federal Legislative Histories: Statutory and Code Research.com . ISBN: 1587330822 • Researching Legislative Histories: Finding Legislative Intent in Bills and Committee and Conference Reports. ISBN: 1587330806 • Researching Legislative Histories. 703-739-3790 TCNSI.Net. ISBN: 1587330334 300 Copyright ©2010 by TheCapitol. Resolutions.S. government documents. No claim made to original U. and Committee Reports. Committee Hearings. All Rights Reserved.Goverment Series: Statutory Construction and Interpretation • Researching Federal Legislative Histories: Bills.
Harvard Law Review.” by Nicholas Quinn Rosenkranz.” by Jon May.shakespearefellowship. ISBN-10: 1567066127 Copyright ©2010 by TheCapitol. Mikva and Eric Lane. forthcoming in the New York University Journal of Legislation & Public Policy <papers. by Linda J.ssrn. by Frank Cross. Philip P. by Abner J. p. ISBN-10: 0674218787 • A Matter of Interpretation: Federal Courts and the Law. ISBN-10: 0691004005 • Mastering Statutory Interpretation. ISBN-10: 0674024605 • Dynamic Statutory Interpretation.com/sol3/papers.S.nsf/698c98dd101a846085256eb400500c01/ 891b0643641b999c85257124006f9178> • “Federal Rules of Statutory Interpretation. by William N. Jr. O’Connor. ISBN-10: 1599410788 • The Theory and Practice of Statutory Interpretation. No claim made to original U. 2085. government documents. The Champion Magazine (NACDL). 115. Eskridge. All Rights Reserved.cfm?abstract_id=748207> • Restatement (First) of Statutory Interpretation.ssrn.scotusblog.com 301 . Dellum.com/sol3/papers.org/Statutory.Net. ISBN-10: 080475912X • Statutory Default Rules: How to Interpret Unclear Legislation.org/virtualclassroom/justicestevens. ISBN-10: 1594603146 • An Introduction To Statutory Interpretation and the Legislative Process. by William N.. 2nd ed.virginia1774. Jr. 2002 <papers.nacdl. Eskridge. by Gary E. by Antonin Scalia.Chapter 8: Other Resources Other Resources Internet Resources • SCOTUS Blog <www.cfm?abstract_id=465322> • The Shakespeare Canon of Statutory Construction <www. and Elizabeth Garrett. January/February 2006 <www.htm> • The Rules Of Statutory Construction <www.org/public. Frickey..html> Books • Legislation and Statutory Interpretation. by Einer Elhauge.com> • “Statutory Construction: Not For The Timid. 703-739-3790 TCNSI. Vol.
Net.com . and Lawyering Strategies. ISBN-10: 9041188797 302 Copyright ©2010 by TheCapitol. by Christian E. No claim made to original U. by Linda D. 703-739-3790 TCNSI. Mammen. ISBN-10: 1594606757 • Statutory Interpretation: The Search for Legislative Intent. Theories. by William D. All Rights Reserved. Popkin. ISBN-10: 1556817851 • A Dictionary of Statutory Interpretation.S. by Ronald Benton Brown and Sharon Jacobs Brown. Jellum and David Charles Hricik. ISBN-10: 0822323281 • Using Legislative History in American Statutory Interpretation. Popkin.Goverment Series: Statutory Construction and Interpretation • Modern Statutory Interpretation: Problems. ISBN-10: 159460181X • Statutes in Court: The History and Theory of Statutory Interpretation. by William D. government documents.
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