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Table of Contents
STATUTORY LAW AND ANALYSIS.................................................................................................................................................................. 2
Separation of Powers....................................................................................................................................................................................... 2
The Legislative Process................................................................................................................................................................................... 2
Functionalist v. Formalist........................................................................................................................................................................... 3
The Sources and Theories of Interpretation........................................................................................................................................... 3
Intrinsic Sources............................................................................................................................................................................................ 3
Extrinsic Sources........................................................................................................................................................................................... 4
Policy-Based Sources................................................................................................................................................................................... 4
o Textualism.............................................................................................................................................................................................. 4
Intentionalism................................................................................................................................................................................................. 5
 Purposivism........................................................................................................................................................................................... 5
Canons Based on Intrinsic Sources: The Words.................................................................................................................................... 6
Textual Canons: Words and Syntax........................................................................................................................................................ 6
Canons based on intrinsic sources: moving beyond the words...................................................................................................... 6
o Ambiguity............................................................................................................................................................................................... 6
o Absurdity................................................................................................................................................................................................ 7
The Constitutional Avoidance Doctrine................................................................................................................................................ 7
Canons Based on Intrinsic Sources: Grammar and Punctuation..................................................................................................... 7
Canons Based on Intrinsic Sources: The Linguistic Canons.............................................................................................................. 8
 In Pari Materia...................................................................................................................................................................................... 8
The Presumption of Consistent Usage and Meaningful Variation.............................................................................................. 9
 The Rule against Surplusage........................................................................................................................................................... 9
 Noscitur a Sociis................................................................................................................................................................................... 9
 Ejusdem Generis.................................................................................................................................................................................. 9
 Expressio Unis Est Exclusio Alterius........................................................................................................................................... 9
Canons Based on Intrinsic sources: The Components........................................................................................................................ 9
Codification...................................................................................................................................................................................................... 9
CANNONS BASED ON EXTRINSIC SOURCES AND LEGISLATIVE PROCESS: TIMING...........................................................10
Conflicting Statutes.................................................................................................................................................................................... 10
CANONS BASED ON EXTRINSIC SOURCES AND LEGISLATIVE PROCESS: ENACTMENT CONTEXT..............................11
Canons Based on Extrinsic Sources and Legislative Process: Purpose...................................................................................... 11
Canons Based on Extrinsic Sources and Legislative Process: Post-enactment Legislative Context...............................12

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CANONS BASED ON EXTRINSIC SOURCES AND EXECUTIVE PROCESS: DEFERENCE TO AGENCY
INTERPRETATION IN CHEVRON.............................................................................................................................................................. 12
Canons Based on Extrinsic Sources and Executive Process: Deference to Agency Interpretation Post-Chevron....13
Canons Based on Policy-based Considerations: Constitutional.................................................................................................... 13
The Rule of Lenity and Penal Statutes................................................................................................................................................ 13
Clear Statement Rules............................................................................................................................................................................... 13
Implied Causes of Action.......................................................................................................................................................................... 14

STATUTORY LAW AND ANALYSIS

Separation of Powers
 Separation of powers does not form meaning per se, but it does play a supporting role
 Dividing line between making law and interpreting law is blurred
o A judge theory of statutory interpretation is based in large part on that judge’s view about what the
proper relationship is between the judiciary and the legislature (aka the separation of powers)
The Legislative Process
 How a Bill Becomes a Law
o INSERT CHART ON PAGE 35 OF TEXTBOOK HERE!!!!
 Bicameralism: 2 chambers (or houses) constituting the legislative body
o House represents public opinion
o Senate represents government interests of their respective states
- The speaker rules on reps objections that a rule has been breached (called points of order) but
speaker can be appealed
- There is no speaker in the Senate
- When bills hit the floor for a vote, they are first screened by committees
- Lobbyists are paid experts hired to represent industries to influence legislation & policy—do not
further public interest

 Legislative Process Theories

o Pluralist theories: focus on the role special interests groups play in setting legislative policy.
Interest group politics leads to “pluralism”—the spreading of political power across multiple
political actors
 Barging theory: a theory that proposes statutes are a compromise between various interest
groups
 Public choice theory: a theory that claims statutes are the result of compromises among
legislators that come about as a result of private interest groups for bargaining. Often
criticized for its skepticism.
o Proceduralist theories: theories that focus on the legislative process and the political obstacles a bill
must hurdle to become law.
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 Vetogates: areas in the process in which a bill becomes a law that a proposed piece of
legislation can be blocked
 Important for 2 reasons
 Gatekeepers can block a bill’s passage at any vetogate
 Courts often reason that statements gatekeepers, which can be found in legislative
history, reflect the intent of the legislative body because the gatekeepers’ support
would have been essential to the bill’s passage
o “Best Answer Theory”: a theory that urges judges to interpret statutes to promote an “optimal state
of affairs.” Such a theory views judges as protectors of the minority—those individuals not in
political power.
 Direct Democracy: The Referendum and Initiative Process
o Initiative process: a process that allows local governments to allow their citizens to adopt laws or
amend their constitution directly (24 states, mostly in the West)
o Referendums: the process that allows all citizens to reject laws and constitutional amendments
proposed by state legislatures (almost all states allow)
 Popular referendum: refers to the right of voters (by collecting signatures on a petition) to
refer specific legislation to the legislature passed to the voters for approval or rejection
 Legislative referendum: refers to the ability of elected officials to submit proposed
legislation or constitutional amendments to the voters for approval or rejection
Functionalist v. Formalist
o Formalist: begin with the operative section of the statute—typically follow the text
 What is the act? Is it being accomplished as the Constitution requires? Vesting clause
 Emphasizes 3 distinct branches: (1) Congress, (2) President, (3) Judiciary
 2 step rule based approach to separation of powers concerns:
 Identify power being exercised
 Determine whether the appropriate branch is exercising
 Court will generally reject any attempt by 1 branch to usurp the power of another
o Functionalist: Allow judiciary to interpret unexpressed items
 Modern administrative state what is needed to help the government run? Core function.
 Focus on the intent over lap of powers to preserve core functions of the Constitution
assigned to each branch
 To maintain balance of power functionalists believe a complete bar against any
encroachment is unnecessary
 To trigger separation of powers concern, 1 branch must unduly encroach & aggrandize a
core function of another

The Sources and Theories of Interpretation

 The Evidentiary Sources of Meaning
Intrinsic Sources
 Those materials that are part of the official act (the precursor to the statute)

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 The statute itself; grammar and punctuation; the components of the act, including purpose
and findings clauses, titles, and definition sections; and linguistic cannons of statutory
construction
 Use of these is mostly non-controversial
 Words, grammar, dictionary, pen of the legislature itself, textual cannons
 Plain meaning of the words
Extrinsic Sources
 Materials outside of the official act but part of the legislative process that created the act
 Earlier drafts of the bill; legislative history (written and oral); statutory purpose; legislative
silence in response to judicial interpretation of a statute; interpretations from other
jurisdictions of statutes patterned and borrowed from that jurisdiction; interpretations by
agencies of the ambiguous statutes they administer
 Can be non-controversial or highly controversial, depending on the source attempting to be
used
 Related to the Bill (drafts), legislative history, purpose

Policy-Based Sources
 Separate from both the act and the legislative (enactment) process and subsequent
interpretation. These sources reflect important social and legal choices derived from the
Constitution, common law, or prudence
 The constitutional avoidance doctrine, the rule of lenity, the remedial and derogation
canons, and clear statement rules
 Reliance on these sources comes and goes
 Constitution, common law
 The Theories of Interpretation
o Textualism: a theory of statutory interpretation that prioritizes the text of the statute at issue.
Focus on the ordinary, public meaning of the words and phrases in the statute as of the time it was
enacted. Not a focus on individual words, but instead on the “whole law” in statutory context
 Don’t ignore legislature intent, but instead believe the text best shows what legislature was
trying to accomplish
 Look to the text first, if they find ambiguity they consider legislative history
 Interpret in a relatively linear fashion
 Examine the fewest number of sources (because of primary focus on intrinsic sources)
 Plain meaning theory: a canon of interpretation that instructs the ordinary, plain meaning
of the words of a statute should control interpretation
 Won’t look at non-intrinsic sources unless the language of the statute is ambiguous
or absurd
 Three types
 Soft plain meaning theorists: those that view the text as the primary, but never the
exclusive evidence of meaning; they are willing to consider legislative history and
legislative acquiescence.
o The oldest form of textualism
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 Moderate textualists: those that the plain meaning canon controls; a statute’s plain
and ordinary meaning must control, unless this leads to an unreasonable result or a
result that is clearly contrary to legislative intent. Will only consider non-test
intrinsic sources if the language of the statute is ambiguous or absurd.
o Most textualists are moderate textualists
 Strict/New Textualists: also require ambiguity or absurdity to look at non-text
intrinsic sources and non-intrinsic sources, but flat-out refuse to look at legislative
history, legislative acquiescence, and unexpressed purpose. [Scalia]
 Faithful agents to the Constitution
 Criticisms: some claim textualists favor simplicity over accuracy (language may be clear to
one and ambiguous to another); meaning may vary with context. Many fault this theory for
its iron-clad refusal to even consider other sources of meaning—namely legislative history
and unexpressed purpose. Some have a hard time determining why textualists are willing
to look at dictionaries and linguistic canons but not legislative history and unexpressed
purpose (both of which don’t go through the legislative process)
Intentionalism
 theories that are rooted in the belief that an elected, represented body should choose the
policies that govern society, and it is the court’s duty to discern the intent of that legislative
body and interpret statutes to further that intent
 Specific intent: the intent of enacting legislature on a specific issue
 General intent: the overall goal or purpose of the legislature as a whole (generally
much easier to find)
 Intentionalism: theory that seeks out the specific intent of the legislature that enacted the
statute. Don’t need a reason to consider sources beyond the text; they pursue and examine
other sources to find help in discerning the specific intent of the enacting legislature
 Often they find statements made during legislative process and early drafting stages
to be relevant
 Judicial role is to be faithful agents of the legislature and work to ensure legislature’s
policy choices are implemented; assists in separation of powers because judges are
implementing legislature intent, not their own policy preferences
 Faithful agents to the legislature
 Criticisms: hard to discern the different intents for different legislators on voting on
certain parts of a bill (intentionalists claim that existence of private motives does
not necessarily eliminate the possibility that the group has a common goal or
agenda); some argue that legislative history can be manipulated to support any
result a judge or legislator wants
 Purposivism (aka legal process theory): theory that seeks to identify the general intent, or
purpose of the legislature that enacted the statute. Purposivists believe that law, both
whole and specifically, is designed to solve identifiable problems; thus, every statute has a
purpose or reason for enactment
 The enacted text is the starting point, but the analysis for purpose leads to a broad
inclusion of sources
 Once the purpose/remedy has been ID, purposivists interpret the statute to further
that purpose subject to 2 caveats
o Judges should not give words a meaning they cannot bear
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o Judges should not give words a meaning that would violate generally
prevailing policies of law, unless the statute includes a clear statement to
that effect
 Faithful agents of a well-functioning regulatory regime
 Criticisms: some struggle to determine how to legitimately discern a statute’s
purpose; there are often competing ideas of how to further the discernable purpose
of a statute (if it can even be discerned). Purposivism does not answer the question
of whether an interpretation is appropriate when one, but not another, purpose is
furthered. Some claim that by furthering a purpose, judges are making decisions
based on own policy choices rather than by the power of the legislature.
o Compromise: Alaska’s Sliding Scale Method
 Sliding scale method simply states that all evidence of meaning is relevant; however the
clearer statutory language, the more convincing the evidence of a contrary legislative
purpose or intent must be
 Aka textualism with a twist: the size of the opening for interpreting different
sources besides the text depends on the clarity of the text—the clearer the text, the
smaller the opening.
 Criticisms: it shares many of the problems of textualism—it’s not the great
compromise it appears to be
Canons Based on Intrinsic Sources: The Words
Textual Canons: Words and Syntax
o The language of the statute is the starting point for all interpreters to determine meaning
o The Plain Meaning Rule
 Courts generally assume that words in a statute have a, “plain” or “ordinary” meaning
 Can appear subjective in determining a meaning, but dictionaries lend help to add an air of
objectivity
 BUT, dictionaries often have multiple meanings for a word. However, the presence of
multiple meanings is not enough to declare a word ambiguous
 Context also helps limit judicial discretion
 1st identify the words at issue, typically assume words have plain or ordinary meaning—
what most people think of when they hear the word
 Judges subjective interpretation
 Dictionary objective definition
o Multiple meanings
o The Technical Meaning Rule
 Legislatures generally use words in their ordinary sense, but occasionally, the technical
meaning is the one intended
 Unless a word or phrase is defined in the statute or rule being constructed, its meaning is
determined by its context, the rules of grammar, and common usage
 Can only use the technical meaning if used in that context of technicality
Canons based on intrinsic sources: moving beyond the words
 Looking beyond the Ordinary Meaning of Words
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o Ambiguity: open to or having several possible meanings or interpretations; equivocal.
 Judges do not consistently define; most often depends on their interpretation theory.
 Most common way of thinking of it: a statute is ambiguous if it is capable of being
understood by reasonably well-informed persons in two or more senses. Aka if it has more
than one meaning if applied to the facts of a particular case. (simply having more than one
meaning does not make language ambiguous)
 Having several possible meaning
 Parties understand the same thing in different ways
 Simply because a word has more than one meaning does not mean the language is
ambiguous
 “Reasonable people disagree” standard is not correct because every case would be
ambiguous
 Better definition: language is ambiguous if one or more interpretations is equally plausible
 NOT: vague, broad, or general language
 Vague: not clearly or explicitly expressed or stated
 Broad: not limited or narrow; of extensive range or scope
 General: not specific or definite
 2 Types of ambiguity:
 (1) Lexical: common, occurs when a word has multiple meanings
 (2) Structural: less common, phrase or sentence has more than one underlying
structure\]
o Ex. Visiting relatives can be boring—are the relatives boring or is it boring
when they are visiting?
o Absurdity (The Golden Rule): If a statute would be absurd if implemented according to the
ordinary meaning, a judge can refuse to follow that meaning according to the absurdity doctrine.
There are 2 types of absurdity
 Specific absurdity refers to a statute that is absurd only in the particular situation (absurd
because they are shocking)
 Most often resolved with non-textual sources (such as legislative history and
unexpressed purpose because it is neither facially apparent nor resolvable with
intrinsic sources
 General absurdity refers to a statute that is absurd regardless of the particular situation
(absurd because they are simply contrary to congressional intent)
 Often apparent and resolvable with intrinsic sources
 Schrivener’s error: drafting mistake. Exception to the plain meaning rule. Permitting
judges to correct obvious clerical or typographical errors

The Constitutional Avoidance Doctrine

 Canon that directs that when there are 2 reasonable interpretations of statutory language,
one which raises constitutional issues and one which doesn’t, the statute should be
interpreted in a way that does not raise the constitutional issue
 Reasonable & fair
 Serves 2 purposes
 It protects the separation of powers
 It furthers judicial economy

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 Allows a court to avoid the ordinary meaning of text when that meaning would raise serious
concerns about the constitutionality of the statute. The doctrine directs that to avoid having
to declare the statute unconstitutional, a court should adopt an interpretation that can be
fairly discerned from the text but does not raise constitutional issues.

Canons Based on Intrinsic Sources: Grammar and Punctuation

 The General Punctuation and Grammar Rule
o Punctuation: Statutes in the US are written with punctuation included, it should be included in the
consideration of interpretation. The General Rule provides that punctuation and grammar matter
unless the ordinary meaning suggests that they should be ignored.
o Grammar: grammar matters, unless the plain meaning rule suggests that grammar should be
ignored, and courts presume that legislatures use grammar accurately and consistently
 Special Punctuation Rules
o Commas: The General Rule
 Serial commas should always be a part of statutory writing
o Commas: Special Rules
 Reddeno singular singulis: rendering each to his own. Appropriate when a complex sentence
has multiple subjects and either multiple verbs or objects that are incorrectly placed.
Words should be applied to the subjects that seem most properly related by context and
applicability.
 “Rendering” or associating each object or verb to its appropriate subject, the
sentence is correctly understood.
 Doctrine of Last Antecedent: a grammar canon that directs that a limiting or restrictive
clause in a statute is generally construed to restrict the immediately preceding clause unless
a comma separates the two.
 Not absolute; judges will ignore when applying it would result in an absurd result or
would make no sense
 Special Grammar Rules
o The Meaning of “And” and “Or” (follows the general grammar rule)
 And means all; typically used by legislators when drafting a statute and when two or more
requirements must be fulfilled to comply with a statute
 or means either; typically used by legislators when drafting a statute and when failure to
comply with any one requirement would be fatal.
o Singular and Plural (does not follow the general grammar rule)
 For ease, most statutes are written in the singular, but is presumed to apply to the plural
when the interpretation calls for it (can be overcome if needed)
o Words with Masculine, Feminine, and Neuter Meaning
 Statutes most often written in the masculine, considered to apply to the feminine as well
o Mandatory and Discretionary
 May: discretionary
 Shall: mandatory (need an actor)
 Must: conditional (something has to happen first in order to use)

Canons Based on Intrinsic Sources: The Linguistic Canons

 When to Use
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o Applied either to help identify ordinary meaning or after the plain meaning canon has failed to
resolve ambiguity
 In Pari Materia: “part of the same material”
o Most popular and least controversial
o Ensures consistency across statutes
o We presume Congress knows all its laws and wants its laws to work together in harmony
o Statutory provisions should not be looked at in isolation
o Identifies the statutory material that judges may legitimately look at to discern meaning or fill gaps
o Has two parts: whole act aspect and whole code aspect
 Whole act aspect: directs that a section of a legislative act should not be interpreted in
isolation, but rather the entire act is relevant
 Based on the idea that there was a single drafter for the bill, either a single person or
a single committee
 Whole code aspect: directs that new statutes should be interpreted harmoniously with
existing statutes concerning the same object
o Promotes coherence

The Presumption of Consistent Usage and Meaningful Variation

o Also known as identical words presumption
o Presumes that when the legislature uses the same word in different parts of the same act, the
legislature intended those words to have the same meaning (consistent usage)
o If legislature uses one word in one part & changes the word in another part, legislature intended to
change the meaning
o Promote internal consistency
 The Rule against Surplusage (or Redundancy)
o The proper interpretation of a statute is one in which every word has meaning; nothing is
redundant or meaningless.
 Every word must have independent meaning
 Two different words cannot have the same meaning
 Noscitur a Sociis “it is known from its associates”
o Based on the simple presumption that when a word has more than one meaning, the appropriate
meaning should be gleaned from the words surrounding the word being interpreted. (aka use
context clues)
o Commonly used by judges in order to interpret items in a list
o Presumes that a list of words share a commonality
o Tells how the list gives meaning to the items within it
o Unifer: all the words in the list are of the same type
 Example: red, blue, chartreuse, & white
 Ejusdem Generis “one of the same kind, class, or nature”
o Directs that when general words are near specific words, the general words should be limited to
include only things similar in nature to the specific words
o Like Noscitur a Sociis, but use when there is a catch-all phrase
o Tells how to find items outside the list expressed in the statute
 Expressio Unis Est Exclusio Alterius “the inclusion of one thing means the exclusion of the other”
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o Implicated when the statute has a gap
o Negative implication: inclusion of one thing means the exclusion of another

Canons Based on Intrinsic sources: The Components

Codification
o Least relevant intrinsic source
o When Congress passes a bill, it becomes an enrolled bill and is presented to the president for
approval. If the president signs or fails to effectively veto the bill, it becomes an act. The act is
delivered to the Archivist of the United States; duplicates of the Act are published chronologically in
official pamphlets called “slip laws”, which the Government Printing Office publishes. Ultimately
the slip laws are bound chronologically into “session laws” and placed in the US Statutes at Large.
o Most Acts are rearranged and published in a topical code—codification
o Before, the legislature had little to do with the placement of a statute in a particular section of the
code, so placement was considered irrelevant. NOW, the legislature may specifically indicated
where sections or parts of an act should be placed in the code, ergo placement may affect the
meaning.
 The Components and their Canons

o Heading
 Identifies the Congress responsible for enacting the bill, the session in which the bill was
debated, the bill designation, the Chamber from which the bill came, the primary sponsor
and the other sponsors of the bill, what happened to the bill and when it happened.
 None of this information is codified, but can be useful for further research.
 For the most part, none of this information is relevant to statutory interpretation

o Titles
 Long titles
 Immediately follows the words, “A Bill” and generally begin with the words “to” or
“relating to”
 Identification for the legislators what the bill is about
 Enacting clauses
o Part of the long title, follows “be it enacted”
o Everything following that is codified
 Short titles
 Usually located in the first section of the statute (a separate section from the long
title and enacting clause)
 “This act may be cited as the ___ Act of ____”
 Included for a variety of reasons: when the long title is particularly long, this title
eases reference; often used to persuade either legislators or the public to support
the bill; can be used to honor someone involved in either the bill process or the
subject
 Unlike long titles, short titles are codified, but the name/title cannot change the
plain meaning of the statutes’ words.
 Section titles: determine content of a particular section

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o Purpose Clauses
 Clauses at the beginning of a statute that are voted on by Congress
 Sometimes they don’t actually express the real purpose of the statute (political influence)

CANNONS BASED ON EXTRINSIC SOURCES AND LEGISLATIVE PROCESS: TIMING

 Extrinsic Sources
o Sources outside the official act but within the legislative process that created the act

Conflicting Statutes
o Judge will first see if the conflict between the two conflicting statutes can be reconciled, because the
judge will assume that the legislature, when it passed the second statute, did not intend to interfere
with or abrogate any existing statutes relating to the same topic (assumptions fail to reflect reality)
 If enacting legislature (1) was aware of all relevant statutes when it created the new one,
(2) would have expressly repealed/ amended the existing statute had the legislature
wanted to replace it; AND (3) failed to repeal it because it intended the 2 to exist in
harmony
o If the two statutes cannot be reconciled, then there are three canons to resolve the conflict
 (1) Specific Statutes Trump General Statutes
 (2) Later Enacted Statutes Trump Earlier Enacted Statute
 (3) Repeal by Implication is Disfavored, unless earlier statute is more specific
 The later statute is understood to have repealed the earlier statute, if not explicitly
then implicitly
 Rests of the flaws presumption that the legislature was aware of the conflict with
the existing statute and specifically opted not to repeal it
o Order of steps to determine how to resolve conflicting statues
 Attempt to harmonize first
 Specific trumps general
 Later trumps earlier
 Later specific trumps earlier general
 Earlier specific trumps later general

CANONS BASED ON EXTRINSIC SOURCES AND LEGISLATIVE PROCESS: ENACTMENT

CONTEXT
 Using What Occurred Prior to and During Enactment
o Context
 Contextualism is the process of using context to determine why a legislature enacted a law
to better understand what that law means. Different types are used, including social and
historical events (social or historical context), the legal and political climate (legal or
political context), economic or market factors (economic context), and even textual and
linguistic patterns (textual context)
 For some judges, context can trump ordinary meaning
o Legislative Silence: “The Dog Does Not Bark” Canon
 Ordinarily, silence from the legislature about a particular provision is not a good guide to
statutory interpretation and certainly not more persuasive than the words of a statute
 Generally, not a good idea to use, but occasionally can be helpful
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o Legislative History: the written record of deliberations surrounding and preceding a bill’s
enactment. Includes all the documentation that was generated during the enactment process,
including committee reports and hearing transcripts, floor debates, recorded vote, conference
committee reports, presidential singing statements, veto messages, and more.
 Legislative History Hierarchy
 At the top, the conference committee report (the most persuasive evidence of
congressional intent, next to the statute itself)
o The only report that members from both chambers generate, and truly
identifies the compromises that lead to the bill’s passage
 Next are committee reports. Reliable because they are generated by the Committee
primarily responsible for drafting, amending, considering, and reporting the bill the
full chamber
 Using Legislative History (typically used for two reasons)
 To shed light on the specific intent of the enacting legislature
 To identify the unexpressed statutory purpose

Canons Based on Extrinsic Sources and Legislative Process: Purpose

 Finding and using Purpose
o Finding Purpose
 Easier if Congress includes a preamble, finding, or purpose clause
 Still, often not included and even if so can be compromised and often unhelpful
 If preamble or finding/purpose clause not included, then can derive purpose from the act
itself
o Using Purpose
 Many reasons. Confirm ordinary meaning, to resolve ambiguity, or to provide guidance in
the case of absurdity
 Can also be used by some judges to trump ordinary meaning (rare)

Canons Based on Extrinsic Sources and Legislative Process: Post-enactment Legislative

Context
 Using What Occurred Subsequent to Enactment (Highly controversial)
o Subsequent Legislative Action
 Super Strong Stare Decisis
 Stare decisis: to stand by things decided. (judges interpret cases similarly) Two
parts
o Decisions of higher courts bind lower courts within the same jurisdiction
o A court should not overturn its own precedents without good reason
 Super strong stare decisis: refers to the heightened stare decisis effect given to
supreme court (state and federal) opinions interpreting statutes
o Judicial decisions interpreting states should be overruled less easily than
decisions refining the common law because Congress is the more
appropriate body to correct erroneous interpretations of statutes.
o Even if a statute has been interpreted wrong, the justices should be reluctant
to overrule it

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 Legislative Acquiescence
 Silence from the legislature means that they agree with the interpretation of a
statute and the judicial interpretation
o Subsequent Legislative Action
 Subsequent Acts being enacted may affect the meaning of an existing statute (silence does
not always equal agreement)

CANONS BASED ON EXTRINSIC SOURCES AND EXECUTIVE PROCESS: DEFERENCE TO

AGENCY INTERPRETATION IN CHEVRON
 Interpretive Role Agencies Play
o Agency interpretation do not control, but they are still highly relevant
o Resolve three types of issues
 Determine the boundaries of their delegated authority and the meaning of the laws within
that authority
 Answer questions of fact and policy
 Mixed questions of law and fact
 Deference Pre-Chevron
o Two different standards
 No deference, “de novo”: used when interpreting usually a question of law
 Limited deference: used when the agency was interpreting a mix of law and fact
 Chevron
o Instituted in 1984
o Two steps
 Has Congress directly spoken to the precise issue before the court?
 If so, undergo statutory interpretation 101 (full statutory interpretation process)
 If not, is the agency’s interpretation reasonable?
 If not reasonable or no agency interpretation, then use the Court interpretation. If
there is a reasonable agency interpretation, then the Court will defer to their
interpretation
 Unspoken step three: if the agency interpretation is reasonable, then apply it
o Three reasons to defer to an agency interpretation
 Expert knowledge
 Agencies don’t have lifetime tenure like judges
 Implicit delegation rationale: Congress delegates via gap-filling

Canons Based on Extrinsic Sources and Executive Process: Deference to Agency

Interpretation Post-Chevron
 Agency Interpretations that Conflict with Judicial Interpretations
o Deals with the problem when there is a prior judicial opinion; should a court defer to an agency
interpretation of a statute that varies from an existing judicial opinion
 Issue is flexibility. On one hand flexibility is essential to the effective operation of
administrative agencies as technology and economies advance and administrative priorities
change with time and with new administration. On the other, too much change can lead to
unpredictability, uncertainty, and, potentially, unfairness.

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o If there was no prior interpretation from an agency, then the Court has to decide if Congress was
clear or to gap-fill
 Congress was clear—no change in the new agency interpretation
 Congress was not clear and Court has to gap-fill—Agency can change its interpretation
o (Brand X case)

Canons Based on Policy-based Considerations: Constitutional

 Policy-Based Canons Based on the Constitution
o The Constitutional Avoidance Doctrine
 Covered in intrinsic sources

The Rule of Lenity and Penal Statutes

 If the Court is interpreting a statute that has a penal element and there is more than one
reasonable interpretation, then the Court should defer to the less penal interpretation

Clear Statement Rules

 When a statute can be interpreted to abridge long-held individual or states’ rights, or when
it appears that a legislature has made a large policy change, courts will generally not
interpret the statute to abridge those rights or make that change unless the legislature was
clear about its intention
 Based on the idea that the legislature would not make major policy changes without
being absolutely clear about doing so
 Examples of Clear Statement Rules: Constitutional avoidance, rule of lenity
 Covers certain areas of law
 Federalism: often federal laws conflict with state laws, judges will not interpret
federal laws to burden state laws unless congress clearly expresses intent to do so
 Preemption: courts presume Congress does not intend to preempt state law when
enacting federal law, requires Congress to clearly state its intention to do so
 American Indian Treaty Rights:
o Diminishment Doctrine: requires Congress to make clear statements when
diminishing reservation land
 Sovereign Immunity:
o Judge made doctrine
o Federal government, or sovereign, may not be sued without consent
 (1) Congress must express clearly intention to waive sovereign
immunity
 (2) Courts must construe narrowly in favor of the government

Implied Causes of Action

- Implied cause of action exists when a court determines that even though a statute does not expressly
grant the private parties the right to sue, the statute does so implicitly
- Old Rule: When Congress adopts a statute protecting private interests, courts assume private
individuals have the ability to enforce those rights regardless of Congress clear statement
o Four Factor Test:

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1. Whether π was the one class of persons for those whose special benefit the statute
was enacted
2. Whether legislative history showed Congress intended to create or deny a private
cause of action
3. Whether an implied cause of action would be consistent with the underlying
purpose of the statute
a. Cannon says this is the only important factor
4. Whether the issue would be traditionally left to state law
- If Congress is not explicit about providing a cause of action it is unlikely that the court will find an
implied cause of action
o Steps: (1) What class of people/ is the language written to protect certain people? (2) What
methods for relief are available
o Majority Cort factors: (1) intent to create a private right, (2) intent to provide a remedy for
violations

Intrinsic Sources Extrinsic Sources Policy Based Sources

Plain meaning (dictionary) Purpose Clear statement
Linguistic Sources: Remedial statute cannon (broadly construed)
- Identical words Federalism
- In Pari Material Constricting/restricting statute (narrowly
Ambiguity construed)
Titles (does not overcome clear text)
Rule against surplusage
Absurdity (frustrate the purpose)
Separation of powers
Grammar

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