STEPS IN STATUTORY INTERPRETATION

Start with the text of the statute (funnel of abstraction) o Funnel of Abstraction (Practical reasoning model of stat. interp) (p. 834-5) o Specific/General Legislative History o Legislative Purpose o Evolution of Statute o Current Policy Interpret the statute in light of Step #2 Apply this interpretation to the facts at hand

Sources 1. Intrinsic Sources 2. Extrinsic Sources -Legislative history - Legislative acquiescence -silence in response to judicial interpretation -borrowed statutes -agency interpretations 3. Policy Based sources -constitutional avoidance - rule of lenity - derogation (revocation) is to be construed narrowly -clear statements are necessary to alter the status quo

THEORIES OF STATUTORY INTERPRETATION

TEXTUALISM Ex. Saclia in Johnson Looking beyond the text raises constitutional concerns Plain meaning SHOULD ALWAYS hold Read language the way an ordinary speaker of English would have read it at the time the statute was established Use the statue and a dictionary and that is it. Unless the result is absurd or still ambiguous ONLY look to LEG history to ensure that the plain meaning was what the LEG really intended We should ONLY follow the procedures set forth in Art 1, Sec 7 of the Constitution to interpret statutes Meaning of statute should be determined on (1) context and ordinary usage; (2) most compatible with the surrounding body of law

Positives o Democratic Legitimacy Legislation makes the law, NOT the courts Legislations Laws should be BINDING on the courts and should not reinterpret what the law says o Among the attractions of this textualist methodology is that it seems to constrain judicial discretion: courts recover original meaning by following a number of determinate steps. Moreover, it has the appeal of being a methodology that anyone can employ.

One need not be trained as an historian (or know a great deal of history) to recover original meaning. Someone who can read texts closely and has access to old dictionaries and grammars can determine original meaning. o The Rule of Law We are governed by the law, not the subjective intentions of people o You can have 100 judges reach the same result, cant with other forms. o It is very simple o Limits judicial discretion o increase predictability o increase efficiency o encourages more careful drafting o limit inappropriate use of legislative history Reasons why we should NOT look at Legislative intent o Collective intent hard to determine o Legislative history is open to manipulation Members of Congress could manipulate the Legislative history to try to influence a judges interpretation Committee reports can be manipulated Legislature dont reed to committee report

Objections to Other Theories Problem of collective intent of entire Congress Its hard even to determine the individual members intent Hard to find out what they intended Problem of attribution Lawmakers could not FORESEE the types of situations to which the statutes would be applied so how do we know what there intent would have been. Legislations WILL should not be binding on citizens it is up to the legislature and the executive to make policy judgments and adapt legal rules to changing times. It is up to unelected judges to follow the rules laid down for them. Best indication of what the Legislation meant is presented in the actual STATUTE itself Issue of statutory interpretation arises only if we dont know what the LANGUAGE of the STATUTE means Attorneys and citizen should be able to look at a statue and know what it means. In order for a law to pass democratically certain words must have been explicitly decided on, as was the case in Weber and to go beyond that is an insult to democratic integrity Criticism of textualist Its too linear and statutory interpretation requires a more dynamic approach Favors simplicity over accuracy The meaning of statutory words cannot be understood without reference to their broader context, which includes the legislative history, purpose, and evolution of the statute A textualist judge may interpret the statute in a way that conflicts with the intentions of the lawmakers or with the broader purpose of the statute. A textualist judges interpretation of a statute may be influenced by his or her own values and ideology. Meaning of word can vary with context. (Ex. Lost in a car or in a town). It makes little sense to prohibit all evidence generated because it was not enacted. Legislative history provides more into what the statue really means. Textualist are willing to use dictionaries that were not enacted. o No proof legislatures use dictionaries or substantive cannons

INTENTIONALISM specific intent o Ex. Rehnquist in Weber pg. 88 o Under this approach, a court should interpret a statute in accord with the specific intentions of the lawmakers with regard to the specific issue before court. If those intentions cannot be determined, then the court should interpret the statute in accord with the position that the lawmakers would have taken on the issue o Seeks to find the specific intention of the LEG with regard to the specific issue at hand Different from Purposivist approach, which seeks to find the general goal/policy as a whole o Justification- democratic legitimacy, respect to role of legislature in making law o Criticism Difficult to determine actual, specific intentions of particular speakers Problem of collective intention held by majority of each house and both houses collectively Did lawmakers anticipate this issue Should specific intentions of law makers be binding? o Look at LEG History Committee Reports Statements by sponsors, or private parties who drafted language, Committee hearings, statements on floor o Approach: interpret statute in accord with specific intentions of lawmakers on specific issue before court. Pound Approach (imaginative reconstruction)
Put yourself in the position of the enacting LEG, and examine the history against a background of assumptions about the LEG Steps o Start w/ plain meaning and context of statute o If still unclear, then look for the Reason and Spirit of the statute o If still unclear, use Public Policy Holy Trinity Case o The judge pretty much followed this Pound Approach Language was ambiguous Sprit of rule Policy Christian Nation

Judge Learned Hand Approach

o Says that we need to reconstructwhat was the purpose of Congress when it used the words in [the statute]

PURPOSIVISM - general intent aka the Legal Process Approach o E.g. Hart & Sacks pg. 718, J. Brennan in Weber pg. 88, NLRB v. Hearst, Supp. 99 Decide what purpose ought to be attributed to the statute Interpret words of statute to carry out purpose, making sure that the words are not given a meaning they will not bear or a meaning that will violate public policy Need to reconcile/test the purpose of the statute with the actual words of the statute Need to NARROW the purpose

Attribution of Purpose What was the overall goal of the LEG? A court should try to put itself in the position of the LEG which enacted the statute Look at the whole context of the statute o State of law before and after the enactment o General public knowledge of the mischief to be remedied o Published LEG history Justifications Reconcile LEG authority and judicial discretion with need for flexibility in judicial interpretation promote purpose of statute Interpret statute to be principled and coherent Avoid irrational applications Harmonize with the law in general Criticisms (pg 750) Legislation should be making policy judgments, rather than the courts Are legislators reasonable multiple purposes appeal of formalism Courts should simply follow the law by the LEG, rather than trying to determine the underlying purpose of the LEG o This risks a court of implying its own social values into the interpretation of the law The Hart and Sacks approach was based on the premise o that every statute and doctrine of unwritten law, developed by the decisional process, has some kind of purpose or objective. o This approach applies even though it may be difficult on occasion, to ascertain or to agree exactly how it should be phrased. Hart and Sacks invited an interpreter to identify the broader purposes embodied in the legislation and answer the interpretive question in a manner consistent with those purposes.15 The statutory text was relevant to the interpretive inquiry because the words by which the legislature chose to express its intent provided persuasive evidence of the purpose of a statute.16 o However, the bare text was not controlling. Literal interpretation dogma was to be distrusted, because it could lead to a result which every sensible man would recognize to be the opposite of what the legislature intended. o Judge could supplant his own views against the plain meaning by using this method.

Decide what purpose ought to be attributed to the statute o In interpreting a statute a court should: Decide what purpose ought to be attributed to the statute. (a) Interpret the words of the statute so as to carry out the purpose as best it can, while (b) making sure that it does not give the words a meaning they will not bear. Interpret words of statute to carry out purpose, making sure that the words are not given a meaning they will not bear or a meaning that will violate public policy o Need to reconcile/test the purpose of the statute with the actual words of the statute o Need to NARROW the purpose Attribution of Purpose

o What was the overall goal of the LEG? o A court should try to put itself in the position of the LEG which enacted the statute o Look at the whole context of the statute State of law before and after the enactment General public knowledge of the mischief to be remedied Published LEG history Justifications o Reconcile LEG authority and judicial discretion o Interpret statute to be principled and coherent o Avoid irrational applications o Harmonize with the law in general Criticisms o Legislation should be making policy judgments, rather than the courts o Courts should simply follow the law by the LEG, rather than trying to determine the underlying purpose of the LEG This risks a court of implying its own social values into the interpretation of the law

DYNAMIC INTERPRETATION ex. pg. 729, Blackmun in Weber A statutes meaning should NOT be fixed in time The meaning of a statute can change and evolve over time b/c of the changing social and legal contexts o Similar to the way the COMMON LAW evolves over time Unlike Hart/Sacks, the language of the statute should not necessarily be binding o RATHER, the ct should construe the language in light of current social and legal contexts Criticisms o Words can be twisted and shaped to whatever the court wants it to mean o Can be used to further a judges agenda o Different judges have different thoughts on the current social/political contexts o Infringes on the Separation of Powers of our Constitution o Discourages LEG from fixing drafting mistakes, since Judges would be the ones always correcting them o Creates a society where the law is unclear o Inconsistent with the proper roles of courts and legislatures Positives o Allows the court to best promote the statue o Allows the meaning of the statue to evolve with changing social and legal conditions o It is impractical to revise the entire United States Code every few years; inevitably, some provisions must be kept in place for decades if not longer. o Intolerable anomalies would develop without some way to keep these provisions in tune with the changing times

Hart Sacks Method

The Hart and Sacks approach was based on the premise o that every statute and doctrine of unwritten law, developed by the decisional process, has some kind of purpose or objective.

This approach applies even though it may be difficult on occasion, to ascertain or to agree exactly how it should be phrased. Hart and Sacks invited an interpreter to identify the broader purposes embodied in the legislation and answer the interpretive question in a manner consistent with those purposes.15 The statutory text was relevant to the interpretive inquiry because the words by which the legislature chose to express its intent provided persuasive evidence of the purpose of a statute.16 o However, the bare text was not controlling. Literal interpretation dogma was to be distrusted, because it could lead to a result which every sensible man would recognize to be the opposite of what the legislature intended. o Judge could supplant his own views against the plain meaning by using this method.

Decide what purpose ought to be attributed to the statute o In interpreting a statute a court should: Decide what purpose ought to be attributed to the statute. (a) Interpret the words of the statute so as to carry out the purpose as best it can, while (b) making sure that it does not give the words a meaning they will not bear. Interpret words of statute to carry out purpose, making sure that the words are not given a meaning they will not bear or a meaning that will violate public policy o Need to reconcile/test the purpose of the statute with the actual words of the statute o Need to NARROW the purpose Attribution of Purpose o What was the overall goal of the LEG? o A court should try to put itself in the position of the LEG which enacted the statute o Look at the whole context of the statute State of law before and after the enactment General public knowledge of the mischief to be remedied Published LEG history Justifications o Reconcile LEG authority and judicial discretion o Interpret statute to be principled and coherent o Avoid irrational applications o Harmonize with the law in general Criticisms o Legislation should be making policy judgments, rather than the courts o Courts should simply follow the law by the LEG, rather than trying to determine the underlying purpose of the LEG This risks a court of implying its own social values into the interpretation of the law