STATUTORY LAW OUTLINE (Revised – Fall 2009)

Approaching a Problem:
1) Begin with the language/text of the statute
2) Look for ambiguity if plain meaning of the statute goes against your client
3) Pick word/phrase relevant to your case
4) Use canons
a. Note: you can’t get to the rule against surplusage without using in pari material
5) Most relevant legislative history
a. Committee reports because they do most work on the bill and are most familiar with it;
reports indicate what committee was trying to accomplish
6) Argue intent
7) Argue purpose
8) Only use “golden rule” when no ambiguity
I. The Legislative Process & the Sources of Statutory Interpretation
a. The Statutorification of U.S. Law
i. Statutes have become pervasive only recently
ii. Until late 19th century, statutes were enacted comparative infrequently
1. Most were specific & narrow
2. Most were private (only applied to specific individuals), not private
iii. More than 100 years ago, Congress & state legislatures became more prolific & enacted
statutes that applied more generally
1. Statutes re: social & economic behavior
2. Statutes intended to modify, & sometimes even abrogate, existing common law
3. At onset of change
a. Statutes were very short & general
b. Like common law, they left room for judicial development (EX: Sherman Act –
entire thing fit on one page – leaving much room for development)
c. # of statutes increased, but generalized statutes were the norm for many decades
iv. Statutory Evolution after WWII
1. During creation of the New Deal, unprecedented # of statutes were enacted
2. Statutes became much more detailed & longer
3. Law continues to become more “statutorified” & trend towards > detail has con’t
a. EX: Patriot Act – 132 pages
b. “Starting with the Progressive Era but with increasing rapidity since the New Deal,
we have become a nation governed by written laws.”
4. Advent of modern form of administrative government
a. Regulatory agencies proliferated after WWII statutes
i. Each agency adopted regulations
ii. Regulations must be interpreted in a similar manner to statutes
iii. When agencies interpret statutes, courts review the interpretations
iv. Result: increased importance of codified law
v. Alexander Hamilton:
1. “The injury that may possibly be done by defeating a few good laws will be amply compensated
by the advantage of preventing a few bad ones.”
vi. Legislative History (examples)
1. Public hearings: reports and proceedings
2. Committee/subcommittees
3. All floor debates, amendments, etc.

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4. Conference committee reports

5. Presidential vetoes
vii. Where to look for legislative history: U-scan; statutes at large (session laws that were passed, all in
order, not topical)
viii. Interpreting Statutes
1. Intrinsic Sources Need interpretation b/c
a. Imprecise nature of language
b. Drafting mistakes by legislatures, &
c. The fact that legislatures simply can’t foresee all circumstances that can arise when
they enact statutes
2. Why should judges do the interpreting?
a. 2 Fundamental Concepts.
i. Application of statutes to actual cases
ii. It “is emphatically the providence and duty of the judicial department to say
what the law is.” (Marbury v. Madison)
b. Consequence: b/c judges must apply statutes to particular cases, in doing so they
“must of necessity expound and interpret” statutory language
3. Judges began to develop approaches to statutory interpretation
a. Some turn to legislative history
i. Recorded debates & proceedings that led to enactment of the statute in ?
ii. These judges believed that while the words of the statute were important, so
too was the intent behind the statute as expressed by legislators during debates
& hearings
b. The appropriate “way” to interpret a statute is not settled
4. Ultimate goal of statutory interpretation remains in dispute
a. To find the legislature’s intent?
b. To determine the statute’s purpose?
c. To apply the written text?
b. The Sources of Statutory Interpretation
i.
1. A/k/a textual
a. Types: words, syntax, punctuation of the statute, grammar, components of the bill
(titles, preambles, & section headings)
i. intrinsic to the statutory text being interpreted
b. Since words are the starting point, they play the most critical role in interpretation
i. the words of the statute are the starting point for a court’s interpretation, and for that
reason words play the most critical role in interpretation
ii. Problem: language is inherently ambiguous

2. Found exclusively w/in the “expression” of the legislature; no need to look beyond the
statute(s) for meaning. All within the writing of the legislature (could be oral).
3. Textual canons that help judges draw inferences (cannons of statutory interpretations)
a. Expressio unius: read the expression of one thing to mean the exclusion of others
b. Noscitur a sociis: interpret a general term to be similar to more specific terms in a
series
c. Ejusdem generis: interpret a general term to reflect the class of objects reflected in
more specific terms accompanying it
d. The Rule Against Surplusage: avoid interpreting a provision in a way that would

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render other words, sections, or provisions of the Act superfluous or unnecessary

e. The Identical Words Presumption: interpret the same or similar words in a statute the
same way
ii. Extrinsic Sources
1. Outside of the statutory text, but related to the legislative process
a. a court looks beyond the text itself to discern the statute’s meaning
2. Examples: legislative history/process, subsequent legislative inaction (legislative
acquiescence to a judicial interpretation of a statute), agency interpretations
(administrative agency interpretations)
a. Legislative history is the most controversially used source w/in this category
b. Reliance on subsequent legislative inaction has been challenged
c. Deferring to admin interpretations is increasingly common & sometimes mandated
3. Re: when a court is willing to look to extrinsic materials will vary
4. Commonalities: not within the actual expression of the statute. Context applies, what the
legislature was thinking when enacting this statute. Looking at the process of what the
branches are going through.
iii. Policy-Based Sources
1. Many are derived from the Constitution or existing common law concepts
2. Courts will look at sources that reflect important policy choices
a. EX: Rule of Lenity – directs that criminal statutes be given the narrower of 2 possible
interpretations to ensure that citizens have notice of what is, & is not, criminal
conduct (derived from the Constitution) adopt the least penal of the two.
b. EX: Canon directing that courts should avoid constitutional questions (to further
separation of powers)
c. EX: Statutes in derogation of the common law s/b strictly construed
d. EX: Remedial statutes s/b broadly construed
3. Whether a judge will consider other sources will depend on a number of factors,
including clarity of the text and the judge’s approach to statutory interpretation
4. Underlying consistencies: reflecting choices that we as society make, either through the
constitution, or are a direct result of the court trying to follow the constitutionality of a
statute, or the others are those that we adopt socially that we follow
iv. Broad “bunch of stuff” that a judge can choose to look at or not look at.
c. An Introduction to the three Approaches to Statutory Interpretation
i. Textualism
1. Statutory language is the focus of interpretation
a. What does the statute say?
2. Relies heavily on the plain meaning canon(rule but not codified) of construction, which
directs courts to look exclusively at the text of the statue unless the plain meaning
derived from the text is ambiguous (capable of more than one equally plausible
meaning) or absurd
3. If the statute is clear, the search for meaning ends
4. If a statute is absurd or ambiguous, textualists may turn to extrinsic sources, but what
defines a textualist is a reluctance to look beyond the text absent a clear reason
5. Focus on word of statute—legislature needs to be careful what it does
6. Plain meaning cannon:
a. Scalia: new textualism: We can’t look at anything other than what is actually in the
text because the legislature has to go through all of these processes (bicameral etc…)
ii. Intentionalism

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1. Intent of the legislative source

a. Who or what did the legislatures intend to effect?
b. Legislator(individual) vs. Legislature (body) vs. Legislation (comes out of legislature)
2. Intentionalists look more broadly from the start
a. Intentionalists seek out the intent of the specific legislature that enacted the statute
i. Often find statements made during the legislative process to be enlightening.
3. Looking for the specific intent of the particular legislature at the time it passed the bill
a. Cannot have the specific intent to exclude something that does not exist
b. Example: hover vehicles excluded
4. Even when the text is clear, an intentionalist may look to extrinsic sources
5. Often find statements made during the legislative process to be enlightening
6. Generally: intentionalists search for legislative intent, but may reject reliance on some
judicially-discerned “purpose”
iii. Purposivism
1. Focus on the purpose of the statute
a. What problem did they want to resolve through the creation of the statute?
2. Purposivists want to know what problem the legislature was trying to redress to understand how
the statute should be construed in the current case
3. Broader focus; allows for change over time
4. Even when the text is clear, a purposivist may look to extrinsic sources
5. Generally: purposivists go beyond the text to look for purpose, but do not focus on
legislative intent
iv. Compare
1. Intentionalists & purposivists differ in what their goal is in examining the sources of
meaning: intentionalists seek out the intent of the specific legislature that enacted the
statute (on that particular issue)(specific intent), while purposivists want to know what
problem the legislature was trying to redress to understand how the statute applies to the
current case (General intent)
2. Competing approaches reflect fundamental differences over the view of the appropriate
role of the judiciary & legislature in statutory interpretation
v. Difference between the text, intent, and purpose of a statute
1. i.e. an 1800 statute states that no vehicles are allowed in parks
a. Text: actual text is clear
b. Intent: to keep bikes, buggies, etc. out of the park (not cars, spaceships, etc. which were not
in existence at that time)
c. Purpose: to keep the parks clean and safe, so that would include vehicles not in existence at
the time that the statute was enacted

Table 1: Which kind of source is each of the following?

Rule of Lenity Punctuation Legislative Debates
Sources
Intrinsic x
Extrinsic x
Policy-Based X

Table 2: Which kind of source is each of the following?

Purpose Clause Administrative Legislative
Interpretation Acquiescence
Sources

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Intrinsic X
Extrinsic x x
Policy-Based

Table 3: When a statute is clear, which sources will a judge from each approach use to determine meaning?
Consider whether there is any difference when the statute is ambiguous.
Textualism Intentionalism Purposivism
Sources
Intrinsic X x – focus x
Extrinsic x – focus x
Policy-Based x – not adverse to using X
II.
III.
IV.

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CHAPTER 2: AN OVERVIEW OF CONGRESSIONAL LEGISLATIVE PROCESS

a. EX: The Right to Have Fun Bill
i. Provisions
1. Any law professor who takes attendance shall be guilty of a class A felony.
2. All class A felonies (any one guilty thereof) shall receive the death penalty.
3. Students who pay any $ toward tuition get to choose to come to class when they want
ii. Want to take it to Congress
1. Why? S/he can introduce it/get a sponsor for it.
2. What congressman? Education Committee Chair.
b. The legislative process is important to statutory interpretation. 3 reasons why:
i. Some courts consider statements that were made during the legislative process by members
of, or committees in, the legislature in determining the meaning of a statute
ii. An understanding of the legislative process will help you appreciate how statutory language
differs from statements made by judges
iii. B/c the precise words in the statute are the result of legislative compromise, statutes are – as
a result of the legislative process – not as precise as they could have been if drafted in a
“perfect world”
c. Purpose of the Legislature
i. To kill bills
1. Opponents may kill a bill by
a. Defeating in committee
b. Prevent the bill from being considered by the full chamber of the House or Senate
c. Defeat it in conference
d. Utilize a “filibuster” in the Senate
e. Persuade the President to veto it
2. Those seeking to prevent legislation from passing have the advantage
3. Majority has substantial control over which bills will be considered by a committee b/c
the majority appoints committee chairs
ii. Alexander Hamilton: “The power of preventing bad laws includes that of preventing good
ones; and may be used to the one purpose as well as to the other . . . .”
iii.
d. Introduction of Bill to House of Representatives or Senate: “First Reading”
i. Power: derived from Art 1, Sec 1 of the Constitution
1. The House & Senate each have separate, though somewhat similar, internal structures
2. Each chamber has its own internal procedural rules that govern the progress of bills
(differences are unimportant for our purposes)
3. A bill must be approved by both houses before it can be presented to the President
ii. First step: introduction of a bill by at least one sponsor
1. A bill can have many co-sponsors
2. Companion bill: when a co-sponsor (secured by the original bill’s sponsor) introduces an
identical bill in the other house of Congress for the purpose of increasing the likelihood
of the bill receiving attention
iii. Once a sponsor introduces a bill, it is given a # for tracking purposes (“H.R.” or “S”)
1. Numbering starts over w/ each new Congress
2. Each session lasts 2 years, which is the term of a House member (a Senator’s 6 year term
will last through 3 sessions)
3. EX: H.R. 1081 in the 107th Congress
4. Most bills do not get any consideration, much less become law

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a. Of 9000 proposed in a recent session, 225 became law

b. Why? Time constraints: those bills deemed unimportant by a committee chair will
not be considered (this is the most common form of “veto”)
e. Referral to Committee(s)
i. At this stage, only committee members entertain motions to consider or table the bill
ii. There are numerous House & Senate committees, each w/ jurisdiction over a specified
subject matter (i.e., judiciary, defense, ways & means, etc.)
1. Each committee has the right to hold hearings on bills that fall w/in its jurisdiction
2. On occasion, bills will be referred to a smaller subcommittee for consideration prior to
consideration by the full committee
3. Some bills may be heard by & approved by more than one committee (in which case
both/all committees would have to approve a bill before it moves forward)
iii. Have open hearing & discussions as to how to change/amend the bill
1. Hear from
a. Other members of the committee
b. People who introduced the bill
i. Statements made by a bill’s sponsor are sometimes given substantial weight
by courts which presume that the sponsor is more knowledgeable about the
bill than other members of the legislature
ii. On the other hand, the SCT has over time given conflicting views on how
much weight to give to statements made by a bill’s sponsor
c. Lobbyists (people used to sit in lobby waiting for senators to come out of office)
i. Generally employed by a company or by an association of companies in a
particular industry (EX: steel trade association, ABA, American Association
of Law Schools) to propose & influence legislation
ii. Perform a positive function b/c they educate legislators on the need for the
legislation (or lack thereof), the appropriate boundaries for legislative
response, & even the potential obstacles for passage
iii. Sometimes their interests do not comport w/ those of the general public
iv. Paid to further the interest of their constituency
2. How hearings are conducted
a. Written format submitted
b. 5 minutes to ask witnesses questions
iv. Amending the bill
1. Added language = italics
2. Deleted language = lined out
3. Called “marking up” the bill
v. If committee approves a bill for consideration by the full house, the committee staff generally
writes a “committee report” to accompany the bill
a. Legislators rely on these reports in determining how to vote on a bill
b. Courts sometimes rely on these reports “and the shared understanding expressed in
the materials when voting to enact a statute”
c. Provides commentary re: existing law & problem that the proposed law addresses
d. Often includes a markup of the bill
vi. Vote on the final version of the bill
1. Approve
2. Defeat
3. “Table” it for further study &, perhaps, later consideration

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f. If approved by Committee, heard by Committee of the Whole

i. When present & recommend bill, present the Committee Report
ii. Committee of the whole (the entire chamber) debates the bill
1. Oral record will be transcribed
2. If legislator opposes the bill, can make a recommendation/suggest an amendment
3. Witnesses are not called
4. Courts generally do not give much weight to statements made by individual legislator
during debates in the Committee of the Whole
iii. Vote to accept or reject any proposed amendments
iv. Committee of the whole “rises” & reports the bill to the full chamber (same individuals)
g. Full chamber votes on it
i. Passage or defeat
ii. Same as Committee of the Whole
h. To other chamber (House or Senate)
i. Consider the bill
ii. If want changes, must go to committee
1. Senate must only add germane amendments
2. Sometimes amendments are added to kill the bill
3. Go through same process
iii. If don’t approve in same language as passed in other chamber, must go back to other
chamber for consideration of new language
1. Conference Committee: members of House and Senate meet to confer & try to reconcile
the versions
2. Conference Committee makes a report as to why bill should be accepted in the form
proposed; becomes an important part of the record (Conference Committee Report)
a. When examining the legislative history, courts first look to the conference committee
report b/c, apart from the statute itself, it is the most reliable evidence of
congressional intent
b. Reason: both chambers rely on these reports in approving the bill
3. Can only reconcile areas in conflict: House’s bill, Senate’s bill, or some compromise
iv. Back to Full House & Senate to approve Conference Committee Version
i. To President
i. Approve or do nothing
1. Becomes a law without signing
ii. Veto
1. If president vetos, need Congressional override (2/3 vote of each house to pass bill)
2. President sometimes makes a veto message, which becomes part of the record
j. See Chart 2-1: How a Bill Becomes a Law (p. 24)
k. Creating the Legislative Record/Legislative History
i. Documentary hearings
ii. Floor debates
iii. Committee Report
iv. Conference Committee Report
v. Versions of the bill
vi. Veto message
vii. Voting record
viii. After the fact, legislators can add info to the record that is never seen, read, or discussed;
recently Congress added legislation that after-the-fact info must be labeled as such

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ix. Legislative history is published in USCAAN

V. DETERMINING MEANING OF THE TEXT: WORDS, PUNCTUATION, & GRAMMAR
(Plain Meaning: Ordinary and Technical Meaning)
a. Starting point for statutory interpretation: the words
i. Problem: language is imprecise, words have a range of meaning and at the margins become
imprecise
b. The Plain Meaning Rule
i. In the construction of statutes, words and phrases shall be construed according to the commonly
approved usage of the language
1. technical words and phrases, and such as have acquired a peculiar and appropriate meaning in
the law, shall be construed and understood accordingly
ii. Words in a statute normally must be given their usual, natural, plain, ordinary, and commonly
understood meaning in the absence of any indication to the contrary
c. Questions
i. Sources for determining the plain meaning of words include: dictionaries, media, such as
movies and television, audience, etc. Look to many sources.
ii. From whose perspective do we judge the plain meaning of the statute? Audience’s.
iii. The audience of a statute is a lawyer? True or False. False.
1. Not always.
2. EX: Criminal Statutes – written to layman
iv. When dictionaries are used for meaning, only the first definition counts. False
v. The court in Maddox focused on the same statutory language as the court in Dixon. False.
d. Determining the Meaning of Individual Words: The Plain Meaning Rule
i. When to Give Words Ordinary Meaning
1. Patrie v. Area Coop. Educ. Serv., 37 Conn. L. Rptr. 470 (Conn. Super. Ct. 2004)
a. Facts: P school administrator injured at school when student jumped playfully on his back
i. P was injured when a student playfully jumped on P’s back; a statute provided more
benefits to teachers who were injured due to an assault; P wanted the legal interpretation of assault in which no
intent was needed; D wanted the common usage of the word assault used; Court consulted several dictionaries, each
stating various forms of violent attack for the meaning of the word.
b. Arguments
i. π wanted the legal meaning (intent not needed); if got legal meaning, then would
have been assaulted—did not want intent applied
ii. Δ wanted plain meaning—non-legal meaning (intent needed): violent contact – then
π couldn’t recover
iii. Court’s interpretation—“intentionally violent attack”—court kind of made this up
c. Statutory language at issue: assault. Is assault to be used in plain meaning or legal?
d. Legal Rule: Ordinary words are meant to be interpreted in their ordinary sense.
i. Where found? In this case, from a statute.
ii. Statute says use plain meaning.
e. This judge got it wrong; should have looked to the statute first
f. Assault not meant in tortious sense b/c drafted to an audience that would not use the
legal meaning
i. Holding: Since assault is hardly a technical/legal, rather it was written for the public
at large, the common usage implies a violent and/or malicious attack (so derived from dictionary definitions) 
none of the definitions specifies an intent, but the court added this based upon the violent aspect of the definitions.
2. Where to look for plain (ordinary) meaning?
a. Sources: find out how words are commonly used
i. Dictionaries (present day dictionary or one in use when the statute was

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constructed?)
1. Oxford: used most commonly, but no uniformity as to which dictionary to
use when.
2. Contemporaneous or former
3. If judge’s approach is an intentionalist approach, then want to know what
the words meant at the time the statute was enacted
4. If judge’s approach is a purposivist approach, then want to know what the
words mean at the time the statute is being interpreted (now)
5. If general, if judges feel they know exactly what a word means, will stop
there; often a dictionary is used to support what they think the word means
a. Problem with dictionaries is that there can be several definitions listed and the
definitions vary among books
b. Textualism: focus on the understanding of the reader by the text of the statute
ii. Case law
iii. Similar statutes
iv. Literature, books, newspaper, movies, media, etc.
v. Social/political context under which the statute was written (i.e. the Patriot
Act)
vi. What would the audience expect?
b. Plain meaning gives wide choice of arguments to make
i. As a litigator, you have tremendous ability to argue what the “plain meaning”
of a word to mean  you argue the one that helps your client.
c. If a counselor (not planning on litigating), then makes your job very difficult; difficult
to give good advice
3. Dixon v. Florida, 812 So.2d 595 (Fla. Ct. App. 2002)
a. Facts: Δ pulled over for traffic violation; Δ forged the citation.
b. Issue: Whether the traffic citations were admissible to prove forgery?
c. Statutory language at issue: “any trial”
d. Prosecutor’s interpretation: Does not want this piece of evidence to be a traffic citation.
e. D’s interpretation: Focuses on not admissible in any trial.
f. Court’s interpretation: According to plain meaning, a traffic citation cannot be used in any
trial. Court uses sliding scale approach.
g. Rule: Traffic citations will not be admitted based on plain meaning of statute. No means no!
h. Evidence ct looked to (sources): text (did not look at policy, no extrinsic evidence)
i. Court said that if legislature doesn’t like the result from interpretation based on plain
meaning, then legislature needs to amend. Court is using text to determine legislative intent.
j. Court looking for intent
4. Maddox v. Florida, 862 So.2d 783 (Fla. Ct. App. 2003)
a. Facts: basically the same as Dixon
b. Issue: same as Dixon
c. Statutory language at issue: “traffic citation”
d. Prosecutor’s interpretation: This is not a traffic citation. It is evidence of forgery, so it
should be allowed
e. D’s interpretation: This is a traffic citation and should not be admissible
f. Court’s interpretation: Went with prosecution’s view.
g. Rule: Traffic citation is admissible b/c not a traffic citation per se, it is evidence of forgery.
h. Court looking for purpose of the statute; purpose of the statute is to protect the person
accused of a traffic violation. That purpose doesn’t apply here, this is a case of forgery.
Therefore, no reason to exclude.

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5. Dixon and Maddox cases

a. It is a well-established principle of statutory interpretation that an unambiguous statute is not
subject to judicial construction, no matter how wise it may seem to alter the plain language of the statute
b. In both cases the D gave a fraudulent name for a ticket citation, and signed that name to the
citation; when this was discovered and the D was charged with fraud, but a statute prohibits the use of a citation to
be used against a defendant at any trial.
c. In Dixon, the court adhered to the plain meaning of the statute
d. In Maddox, the court looked to the purpose of the statute (to protect the issuee of a citation
from the citation being used against them) and came to the conclusion that upon discovery that the name on the
citation was not that of the D, the citation was rescinded rendering mere evidence, no longer a citation, thus placing
it outside the scope of the statute.
6. Whose job is it to fix a poorly worded statute?
a. Depends on the judge
b. Article III suggests a role for the courts in interpreting to address blanks or poor
wording
c. Some judges are robots and feel that they are there to interpret only what is given to
them, and that it is the job of the legislature to create better law.
ii. When to Give Words Technical or Contextual Meaning
1. Generally, “[u]nless otherwise defined in the statute, or understood the technical or
peculiar meaning in the law, every word or phrase of a statute will be given its plain and
ordinary meaning.”
2. What do you do when you are faced with technical words, and how do you know when words
should be interpreted as technical
a. Example: The word ‘conviction’
i. The word conviction has a legal meaning distinct from its ordinary one. It is not
always clear whether the legislature intended the technical or ordinary meaning

3. St. Clair v. Commonwealth, 140 S.W. 3d 510 (Ky. 2004)

a. Facts: A jury found St. Clair (Δ) guilty of murder. At capital sentence proceeding, jury found
the presence of an aggravating circumstance & sentenced Δ to death. While awaiting final
sentencing for 2 state murder convictions, Δ (& another inmate) escaped from jail. When
subsequently arrested, confessed to kidnapping, grand theft auto, & murder (crime spree
while escaped).
i. Prior convictions are aggravating circumstances that allow for the death penalty; St.
Clair had committed the murder after a jury found him guilty for prior acts, but before he was sentenced.
b. Issue: Whether conviction under the statute means conviction based on jury verdict or based
on final judgment entered on plea?
i. The issue in the case was whether ‘conviction’ should be interpreted as the common
understanding of a conviction as a jury verdict of guilty, or the technical meaning of a final decree of guilt as
handed down by judge or appeals process?
c. Statutory language at issue: “prior record of conviction”
d. Interpretations
i. Plain meaning of conviction: guilt by jury verdict
ii. Legal meaning: Final judgment entered on the plea
e. Holding: Court accepts plain meaning b/c statute says record of conviction rather than
judgment of conviction. Doesn’t sound like this statute was written for ordinary audience, so
why did court apply the plain meaning? Bad guys lose! Result-oriented. This statute in
actuality was probably written for judges & lawyers b/c they know about sentencing.
i. The court felt that the common understanding of conviction should be used because
of the legislature’s use of verb tense and phraseology: “was committed by a person with a prior record of
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conviction for a capital offense[.]”; the court felt that if the legislature wanted the technical meaning to be used,
then it should have used the more technical phrase “judgment of conviction”
1. A basic implementation of the term had been used, therefore the ordinary
meaning should be the definition
f. Dissent: Majority didn’t consider the Rule of Lenity; didn’t consider the second part of the
statutory language. (The dissent also claimed that there was an anomaly in the record:
defining the word in two different ways with a different statute; there is an absurdity
argument)
i. DISSENT: since the term conviction was inherently ambiguous, the rule of lenity
should have been implemented (The rule should only really apply in criminal cases, not civil cases unless the have a
penal element to them. Why? Due Process from the Constitution; lets people have notice of what they are doing can
have a penalty.)
4. Rule of Lenity
a. Cannon of interpretation
b. There is a constitutional right to know ahead what acts are prohibited, and if there is an
ambiguity in the law, the less sever penalty/interpretation should be implemented.
c. Basically, the cannon tells the court to err on the side of caution.
d. The more ambiguous the term, the more lenient you will be.
5. Problem 3-1 (Tim Thompson)
a. Facts: Δ was on the way to a drug deal; had a firearm in glove box; admitted bringing
handgun for protection in relation to the drug sale
b. Statutory language at issue: “uses or carries a firearm”
c. Issue (defense): Whether having a firearm locked in glove-box of car on the way to drug deal
constitutes use or carrying in execution of drug crime?
d. Issue (prosecution): Whether when a Δ brings a gun to the drug sale to specifically use the
gun for protection at that transaction this constitutes using or carrying a firearm?
e. Δ’s Arguments
i. Supreme Court says that “uses” doesn’t apply based on Bailey v. U.S.
ii. “Carry”
1. Not defined by either case – no legal authority
iii. 2. Dictionary definition – To hold or support while moving; bear
f. Prosecution’s arguments
i. Use
1. Supreme Court says “use” means active employment
2. May gain credibility by conceding an issue you may lose
ii. Carry
1. No SCT ruling on it
2. Therefore, look to plain meaning
3. Dictionary definition helps prosecution’s case b/c “carry means transport”
g. Δ’s rebuttal
1. Could carry the firearm all the time
2. Intent doesn’t count
3. Rule of Lenity: if a word in a statute w/ penalizing effect is susceptible to more
than one plausible meaning, then err on side of more lenient of two (in this case,
use or carry means to discharge or be on the person, not in the trunk)
6. Smith v. U.S., 508 U.S. 223 (1993)
a. Facts: Petitioner went from FL to TN to buy cocaine. When arrived at hotel room, offered to
sell to undercover cop (who presented himself to petitioner as a pawnshop dealer) a MAC-10
in exchange for cocaine. Officer left, promising to return w/in an hour; petitioner didn’t want
to wait; led police on high-speed chase when they attempted to stop him. Convicted of 2
drug trafficking crimes & knowingly using the MAC-10 & its silencer during & in relation to
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a drug trafficking crime.

b. Statutory language at issue: “used or carried a firearm”
c. Δ’s argument: Statute’s penalty for using a firearm during & in relation to a drug trafficking
offense covers only situations in which the firearm is used as a weapon; provision does not
extend to Δs who use a firearm solely as a medium of exchange or for barter
d. Rule: Just b/c the ordinary meaning of “use” includes using a firearm as a weapon does not
mean that excludes any other meaning. “In this case it is both reasonable and normal to say
that petitioner ‘used’ his MAC-10 in his drug trafficking offense by trading it for
cocaine . . . .”; falls w/in plain language
e. Dissent (Scalia, Stevens, Souter): meaning of the word cannot be determined in isolation, but
must be drawn from the context in which it is used; in search for statutory meaning, give
nontechnical words & phrases their ordinary meaning; to “use” an instrumentality ordinarily
means to use it for its intended purpose (as a weapon); court doesn’t grasp the distinction btw
how a word can be used & how it ordinarily is used
7. Bailey v. U.S., 516 U.S. 1995
a. Facts: consolidated petitions challenging convictions under 18 U.S.C. § 924(c)(1), which
imposes a 5-year-minimum term of imprisonment upon a person who “during and in relation
to any crime of violence or drug trafficking crime . . . uses or carries a firearm.” (Same
statute as was at issue in Smith above.) Δ arrested after traffic stop where officers searched
car & found 27 plastic bags of cocaine & round of ammunition; after arrested, searched trunk
& found large bag of cash & 9 mm.
b. Issue: Whether evidence of the proximity & accessibility of a firearm to drugs or drug
proceeds is alone sufficient to support a conviction for “use” of a firearm during & in relation
to a drug trafficking offense.
c. Statutory language at issue: “use”
d. Rule: Use means more than mere “possession” b/c Congress didn’t say “possession”;
however, “use” seems to denote active employment. Therefore, evidence was insufficient to
support Δ’s conviction for use
8. Watson v. U.S. 552 U.S. 2007
a. Facts: Watson gave an undercover law enforcement agent 24 doses of oxycontin for a .50
caliber semiautomatic pistol.
b. Issue: Whether a person who trades his drugs for a gun “uses” a firearm “during and in
relation to a drug trafficking crime”?
c. Statutory language act issue: “use”
d. Rule: Given the ordinary meaning and conventions of English, a person does not “use” a
firearm when he receives it in trade for drugs. The agent “used” the pistol to get the drugs.
“A seller does not ‘use’ a buyer’s consideration.”
e. Gov’s Arg.: “use” includes receipt of a gun. Need to maintain symmetry with Smith.
iii. Questions
1. Which sentence is properly punctuated? The bank returned the Δ’s canceled check,
which was no longer of value.
2. In a series of 3 or more items, there should be a comma after every item in the series,
including the item preceding the conjunction. In other words, the following list is
grammatically correct: milk, eggs, and cheese. The following list is not: milk, eggs and
cheese. True. In English, doesn’t really matter, but does in legal writing. Add the comma.
3. If a definition of a word or phrase in a statute conflicts with the ordinary definition: the
statutory definition always controls.
4. People may drive cars, motorcycles, & bikes but only on Thursdays means: People may
drive bikes only on Thursdays.
5. “And” is generally used in a disjunctive sense, but may also be used in a conjunctive
sense. False. “And” is generally used in a conjunctive sense. It occasionally is
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interpreted to mean “or,” which is disjunctive.

e. Determining Meaning Through Punctuation & Grammar
i. The General Punctuation Rule
1. English Rule: Punctuation didn’t matter in England b/c Clerk’s wrote the statutes.
2. American Rule: An act s/b read as punctuated, unless there is a reason to ignore
punctuation (statute s/b read as punctuated unless it will create ambiguity, then ignore.
Punctuation lower than plain meaning in hierarchy.)
a. Plain Meaning Rule
i. Presupposes the ordinary usage of words
ii. Relies on accepted punctuation & syntax (conventional rules of grammar)
b. Problems
i. Assumption that legislators know their grammar & punctuation
ii. Some punctuation rules are optional
c. Examples of Reasons to Ignore Punctuation/Grammar Rules
i. Scrivner’s error
1. U.S. Nat’l Bank v. Indep. Ins. Agents, 508 U.S. 439 (1993)
a. Facts: Parties disputed whether Congress had revoked a 1916 statute that
permitted nat’l banks in small communities to sell ins (§ 92)
b. Why was the Court of Appeals, but not the SCT, willing to look to the
legislative history? CoA found ambiguity. The SCT majority found the
statute clear even though it was not. This Court was willing to disregard the
punctuation to render the true meaning of the statute.
c. Case illustrates when there is a reason to ignore punctuation
d. SCT holds: a purported plain meaning analysis based on punctuation is
necessarily incomplete & runs the risk of distorting a statute’s true meaning;
in expounding a statute, we must not be guided by a single sentence or
member of a sentence, but look to the provisions of the whole law, & to its
object & policy
e. Essentially: punctuation matters, but no so much that it can trump the
plain meaning
ii. Punctuation creates ambiguity (Peterson v. Midwest, below)
iii. Defeat’s legislature’s intent (One 1990 Chevrolet Pickup, below)
iv. Drafting ease
1. “and” & “or”
2. Masculine & feminine
3. Singular & plural
ii. Specific Rules: Commas & the Rule of Last Antecedent
iii. English Rule for Punctuation—punctuation never relevant
iv. American Rule for Punctuation-legislature writes the punctuation in the statute.
Punctuation sometimes relevant
v. In law, always use serial comma rule
1. Commas
a. Commas, perhaps more than any other punctuation, create critical issues of
interpretation. Three (3) rules re: commas are important to statutory interpretation:
i. In a series of 3 items, if each is set off by a comma, then each s/b viewed as
independent of the others
ii. When a modifier is set off from a series of antecedents by a comma, the
modifier s/b interpreted to apply to all of the antecedents
iii. The Rule of the Last Antecedent

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b. Peterson v. Midwest Security Ins. Co., 636 N.W.2d 727 (Wis. 2001)
i. Facts: Peterson was injured when the tree stand from which he was bow hunting
collapsed, & he fell. At the time, Peterson was hunting w/ permission on land owned
by Vernon & Culleen Peterson (no relation). Tree stand was built & owned by
Petersons’s nephew, Shaw. Peterson sued Δs’ insurance co, which raised a defense
afforded by Wisconsin’s “Recreational Immunity Statute” & won; Peterson appealed.
ii. Statutory Language at Issue: “Property” is “real property and buildings, structures
and improvements thereon, and the waters of the state.”
1. Majority & dissent go first to statutory definition of “owner” & “property”
iii. Majority: statute applies (immunity applies); majority says the language is clear and
unambiguous; thinks the purpose clause should be construed liberally (broadened the
definition of who is covered by the statute) in favor of property owners to protect
them from liability.
1. According to the unambiguous language of the statute, a person who owns a
“building, structure or improvement” on real property owns “property” under the
statute, regardless of whether he also owns the underlying real estate.
2. How majority reads statute:
a. Real property and
b. Buildings, structure and improvements (on any real property), and
c. The waters of the state
iv. P’s Argument: The phrase “building, structures and improvements” merely
modifies “real property,” so that a person who owns a building, structure or
improvement but does not own the underlying real property does not own “property”
within the meaning of the statute. This is based on the lack of punctuation between
the phrases “real property” and “buildings, structures and improvements.”
v. Legislative Intent: Preamble or Purpose Clause (this is the statute’s purpose)
vi. Dissent: The statute’s definition of property in ambiguous. Majority does not rely
on accepted uses of grammar to reach its holding. Says the purpose of the statute is
to focus on a recreational activity; does a better job of reading the statute as
punctuated; thereon would suggest that has to be attached to the property.
vii. Footnote: The rules of grammar and punctuation should not be applied at the
expense of a natural, reasonable reading of the statutory language (taking in to
account the context in which it appears and the purpose of the statute), or when the
result is an expansion or contraction of the statute contrary to its terms. Strict
adherence to the “rule of the serial comma” adds a substantive requirement to the
statute that it does not contain.
viii. Moral: Look at the rules of grammar if we need to; this is poorly punctuated
2. The Rule of Last Antecedent
a. The Second Rule: When a modifier is set off from a series of antecedents by a
comma, the modifier should be interpreted to apply to all of the antecedents. Thus,
“people may drive cars, motorcycles, and bikes, but only on Thursday” means that
driving cars, motorcycles, and bikes, is allowed only on Thursday. The phrase “but
only on Thursday” is the modifier; “cars, motorcycles, and bikes” are all antecedents.
b. The Third Rule—The Rule of Last Antecedent: When a modifier is not set off
from an antecedent by a comma, then the modifier should be interpreted to apply to
only that antecedent. “people may drive cars, motorcycles, and bikes but only on
Thursday”. This means that bikes, and bikes alone, may be driven only on
Thursdays; cars and motorcycles may be driven at any time.
c. Generally, a phrase modifies the immediately preceding antecedent (see Stevens)
i. EX: People may drive cars, motorcycles / , and bikes but only on Thursdays
ii. Exception: if a comma precedes the phrase, then the phrase modifies all the
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antecedents
1. EX: People may drive cars, motorcycles, and bikes / , but only on
Thursdays
2. Exception: “the less technical version of the last antecedent”: if
applying the rule defeats intent (see One 1990 Chevrolet Pickup &
Problem 3-2: McGary)
d. In re Forfeiture of 1982 Ford Bronco v. Stevens, 673 P.2d 1310 (N.M. 1983).
i. Facts: While driving, Δ, Stevens was arrested for possession w/ intent to distribute;
found guilty of the crime & Ford Bronco seized. Δ wasn’t convicted of the
underlying crime, but vehicle was still forfeited.
ii. Issue: To what does “for the purpose of sale of [drugs] . . .” apply?
iii. P’s Argument: sale already occurred – already had the $, therefore, not driving the
vehicle for the purposes of sale. Cites Barela
iv. D’s (State) Argument: Forfeiture
v. Statutory language at issue: “All conveyances, including aircraft, vehicles or
vessels, which are used, or intended for use, to transport, or in any manner to
facilitate the transportation for the purpose of sale of [drugs] . . .”
vi. Court’s interpretation: Rule of Last Antecedent says that b/c no comma, means
that clause only applies to “in any manner to facilitate the transportation.” A statute
must be read in its grammatical sense. The restrictive clause only applies to the
words that immediately precede it. A comma must not be placed between a
restrictive clause and the words it seeks to restrict.
vii. Holding: Forfeiture allowed because the vehicle was used to transport drugs.
e. 1981: Legislature amends statute at issue in Stevens & One 1990 Chevrolet Pickup & takes
out all the commas
f. State v. One 1990 Chevrolet Pickup, 857 P.2d 44 (N.M. Ct. App. 1993)
i. Facts: Has a small amt. of cocaine in a $100 bill in the vehicle; Δ said cocaine was
for his personal use—not transporting
ii. Why isn’t Stevens controlling? The statute has been amended & Stevens is no
longer controlling precedent.
iii. Interpretation: If no comma, rule of last antecedent (applies to whole thing). But
Court says, “going to use a less technical version.” Not going to allow the lack of
comma to interfere w/ clear meaning. Meaning that forfeiture of vehicle, must be
related to the sale element.
1. Where the context requires that a qualifying word or phrase apply to several
preceding phrases, the qualifying word or phrase will not be restricted to its
immediate antecedent.
iv. Holding: forfeiture only allowed in instances where Δ transported for sale
v. Court’s interpretation
1. All conveyances . . . which
a. Are
i. Used or
ii. Intended for use
b. To
i. Transport or
ii. Facilitate the transportation
c. For the purposes of sale of [drugs] . . .
3. Grammar: Rules & Exceptions
a. Conjunctive or Disjunctive: “And” Versus “Or”
i. “And” generally thought of as conjunctive
ii. “Or” generally thought of as disjunctive
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iii. In statutory interpretation, sometimes “and” means “or”

1. EX: If someone asks you if you want pepperoni or sausage pizza, you
may say “pepperoni and sausage is fine”
2. This may mean that they are good together or that one or the other is fine
b. Singular & Plural Words & Masculine, Feminine, & Neuter
i. Singular words in statutes can include the plural
ii. Under federal & many state statutes, the masculine pronoun can also include
the feminine (& neuter) & vice versa
iii. A judge will ignore these rules if they lead to absurd conclusions
4. Problem 3-2 (p. 75-76)
a. Language at issue: “by withholding any of the basic necessities of life.” B/c there is no
comma before this clause, state argues that should apply to B.
b. State: wants to apply just to B.
c. Defense: Ignore the Rule of Last Antecedent b/c legislature intending to protect children.
Text is ambiguous. Therefore, look to purpose clause, which is to protect children, etc. from
being deprived of basic necessities of life.
d. In the real case, Δ was acquitted. Had them in car seats & didn’t drive too far while drunk!
VI. Beyond the Text: Absurdity, Ambiguity and Scrivener’s Error
a. No matter which approach to statutory interpretation a court uses, if the plain meaning of the text is
absurd or ambiguous, the court will go beyond the text
i. Three universally recognized exceptions to the plain meaning rule
1. Absurdity
2. Ambiguity
3. Scrivener’s Error
ii. Textualists are less willing to go beyond the text than others
iii. ARGUMENT: Practically speaking, as a lawyer, if the plain meaning of the text does not
favor your client’s position, then you need to be prepared to argue either that the statute is
absurd or ambiguous or that under the court’s approach, analysis does not stop w/ the text
b. Absurdity (the plain meaning of the statute is clear, but that meaning simply makes no sense)
i. The Golden Rule Exception: recognizes that when plain meaning leads to an absurd
result, then the court must go beyond the plain meaning to see if other sources
demonstrate that the absurd but plain meaning was not intended
1. If unambiguous or literal meaning of statute leads to absurd or unjust result or
inconsistency in statute, construer should search further for correct meaning of statute
and construe it to avoid absurd or unjust result
a. May be a way to demonstrate that text is ambiguous so construer may go beyond
specific word or phrase in question in its search for legislative intent
2. Reason for the exception: it is “unreasonable to believe that the legislator intended” the
absurd result
3. Exception is controversial
a. If disregard plain meaning for some other “non-absurd” meaning, isn’t the court
inappropriately “legislating”?
b. Even if appropriate to ignore plain meaning, where should the court turn to discern
meaning?
c. Should a court be guided solely by one extrinsic source or all extrinsic sources?
ii. Two Types of Absurdity:
1. Specific absurdity—where a statute is absurd only in the particular situation
2. General absurdity—where a statute is absurd regardless of the specific situation
iii. How should absurdity be determined?
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1. Does a court determine plain meaning & only then determine whether there is an
absurdity, or does a court apply the textual canons, look to the legislative purpose &
legislative history, first, & then determine whether there is an absurdity?
2. For textualists, must find absurdity before they will go beyond the text
3. Purposivists analyze the text & also ask what evil or mischief the statute was designed to
remedy as part of the process of interpretation & they seek to give a meaning to the text
that furthers that goal
4. Intentionalists look to the legislative history along w/ the text right from the start & w/o a
threshold requirement of ambiguity
iv. How is absurdity determined? (no universally accepted definition)
1. something is absurd when it is contrary to purpose/intent
2. something is absurd only where the statute is so gross as to shock common sense
a. a court decides whether a statute is absurd based on the facts of the case (great
deferential power to the court)
v. Criticism: the golden rule undermines textualism (even though it is a textualist doctrine)
vi. Robbins v. Chronister (10th Cir. 2006)
vii. Facts: Officer approached car of Robbins, Robbins tried to flee, Office shattered Robbin’s
driver’s side window with his baton. Car lost control and skidded toward Officer, Officer
shot Robbins. Robbins filed pro se civil rights complaint alleging excessive force. Crt.
Ruled shots fired was reasonable, but shattering the window with the baton was excessive
under the 4th Amendment. Crt. Awarded Robbins nominal fee of $1. Applying the Supreme
Court’s absurdity exception to the plain language rule, the crt. held that the Prison Litigation
Reform Act (PLRA) limiting attorneys fee awards in prisoner suits to 150% of the money
judgment does not apply to civil rights claims arising BEFORE the victim of the
constitutional violation was incarcerated. The Court awarded reasonable fee without cap
($915.16). This court affirms.
viii. Statutory language in question: “in any action brought by a prisoner”
ix. What Court did: Court declined to apply PLRA because an absurd result would be reached
because Congress could not have intended the statute to apply to meritorious civil rights
claims that arose prior to prison confinement.
x. Officer Chronister’s Argument: The PLRA caps Robbin’s fees at 150% of his damages--
$1.50. because he was a prisoner BEFORE he filed suit.
a. He was a prisoner at the time he brought action
b. He was awarded atty fees
xi. Court’s Interpretation: Legislative purpose was to curb frivolous lawsuits brought by
prisoners relating to the conditions and circumstances of their incarceration. However,
Congress did not intend to impose a fee limitation on pre-incarceration civil rights claims
brought by a P who subsequently became a prisoner and filed the action while in prison. Pre-
incarceration claims are outside of Congress’ attempt to curtail frivolous lawsuits.
xii. Holding: “In sum, we hold that it would be absurd to limit Mr. Robbins’s atty’s fees merely
because he happened to file his pre-existing constitutional claim while he was in prison.”
xiii. Dissent: Absurdity is when a result would shock the general moral or common sense. This
interpretation of the statute does not meet the standard. If you are trying to curtail frivolous
lawsuits, then don’t allow pre-incarceration lawsuits.
c. Problem 4-2
i. Statutory language at issue: felon
ii. Sands: will argue that felon applies only to a person that is an adult, & Mr. Baker is a minor (a
juvenile cannot commit a felony – can only commit a delinquent act)
iii. ARGUMENT: State: if a textualist, must argue that statute is ambiguous. Ordinary interpretation of
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felon would apply to both adults & minors. If this doesn’t work, argue absurd, b/c harboring an adult
& juvenile is the same.
iv. Sands: not absurd b/c in our system juveniles are treated differently
d. Scrivener’s Error
i. Sometimes the legislature errs when it drafts or amends a statute. The ensuing error, called a
scrivener’s error, creates ambiguity in the statute: Should the statute be interpreted as written
or as intended? This exception to the plain meaning rule permits judges “to correct” the
error, but the exception is limited.
ii. When statutes contain an obvious clerical or typographical error, judges will correct that
scrivener’s error.
iii. Example: changing the word “request” to “receipt” where language in statute provided that
a certificate would be furnished “upon request of the …request”
iv. A court should only fix drafting errors.
v. Koons Buick Pontiac GMC, Inc. v. Nigh, 125 S.Ct. 460 (2004)
1. Facts: buyer trading in old car & trying to buy new one; buyer ultimately signed 2 or 3 sales Ks;
seller lied to buyer in sales Ks; buyer returned car to seller & sued under the Truth in Lending Act
2. Issue: Whether the cap “except that the liability under this subparagraph shall not be less than
$100 nor greater than $1,000” applies just to the “in a consumer lease . . .” or applies to the
“twice the amount . . . .” Buyer is suing under “twice the amount” part, so wants to apply to both.
3. Statutory language at issue: “subparagraph”
4. Majority: says applies to both b/c looks to drafting manual (plain meaning can come from
places other than dictionaries); drafting manual says anything beginning w/ (A) – this type of
numeral (if would apply to “ii” only, would use “clause,” not subparagraph). Congress’s
purposes by adding lower provisions was to address mortgages. Court also says that non-sensical
to interpret otherwise b/c allow more – would be absurd to limit mortgages but not personal
loans. Ct finally indicates that if Congress were wanting to change the fact that had applied to
both before, Congress likely would have flagged this. Therefore, this particular cap applies to
both (i) & (ii).
a. Subparagraph was the wrong word used. Should have used the word “clause”.
b. Applies to clause 1 and 2—if Congress would have wanted it to not apply to clause 1, they
would have said, it only applies to 2.
5. Dissent: says applies only to the second part – takes more a textualist approach by looking at the
structure and punctuation & the location of the modifying clause; gets around the absurdity issue
by 1 year statute of limitations & generally going to pay less on finance charges for personal
property – will self-regulate, don’t need a cap. Scalia, Rehnquist & Thomas generally are
textualist.
6. Rehnquist & Thomas don’t sign on here: Thomas says that ambiguous. He is willing to look
at the statutory history (what we have on our sheet). Most likely this was a Scrivner’s error –
should have been moved out, but wasn’t. Looking at intrinsic factors.
7. Kennedy & Rehnquist look to the legislative history (more broadly).
vi. Problems w/ requiring Congress to fix all statutes w/ Scrivner’s errors is that very difficult to
pass statutes. Are courts simply an arm in Congress trying to interpret what Congress says
based solely on the language or is there more of an equal arm role?
e. Ambiguity
i. The plain meaning of the statute is equally susceptible to more than a single meaning
ii. Ambiguous has to mean more than just two reasonable interpretations—it has to mean two
equally plausible interpretations or some similar standard
iii. Lexicon ambiguity—the word itself is ambiguous
iv. Structural ambiguity—how the word is used in the sentence—the context ex) “short
men and women”

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v. Ambiguous does not mean “vague” or “broad” or “general”

vi. Ambiguity means that a statute can be read in two ways when applied to particular facts
1. For example, under one reading of a statue, there is liability, but under another reading,
there is no liability
vii. The fact that the circuits split on the meaning is not enough for a court to hold that there is
ambiguity
viii. Although ‘reasonable people disagree’ is often stated as the test, we think that most courts
are actually applying a higher standard
1. It probably means that there is more than one equally plausible meaning.
a. In other words, it has to be more than just two reasonable interpretations – it has to be
two equally plausible interpretations or some narrower standard
ix. A statute is ambiguous if it is capable of being understood by reasonable well-informed persons in
two or more sense (low standard)
x. If a statute is ambiguous, the reviewing court turns to the scope, history, context, and purpose of
the statute
1. Resort to legislative history is not appropriate in the absence of a finding of ambiguity or to
confirm or verify a plain-meaning interpretation
xi. A court will find an ambiguity when the court wants to find an ambiguity.
1. So how do you win?
a. Win on the underlying case (your case is better) and by using the language.
xii. Ambiguous means capable of 2 equally plausible meanings (Mayor of City of Lansing)
1. Simply b/c 2 litigants, or 2 judges, disagree about what a statute means does not lead to a
finding that the statute is ambiguous (Mayor of City of Lansing)
a. “Capable of being understood by reasonably well-informed persons in two or more
senses.” (Kalal: majority)
b. Oft articulated, slightly inaccurate description
2. Rather, a provision of the law is ambiguous only if it irreconcilably conflicts w/ another
provision, or when it is equally susceptible to more than a single meaning
3. Structure of the statute as a whole may resolve ambiguity (Koons: Scalia dissent)
xiii. Problems with finding ambiguity
1. A finding of ambiguity opens the door to consideration of other sources, such as the
purpose or legislative history, which some courts view dimly
2. “A finding of ambiguity . . . enables an appellate judge to bypass traditional approaches
to interpretation and either substitute presumptive rules of policy, or else engage in a
largely subjective and perambulatory reading of legislative history.”
xiv. Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc. 128 S.Ct. 2326 (2008)
1. Facts: Piccadilly filed Chapter 11 bankruptcy and prepared to sell its assets. It sought an
exemption from any stamp tax (taxes paid on deeds, mortgages, etc.) on the eventual
transfer under Section 1146(a) of the Bankruptcy Code.
2. Issue: Whether the stamp tax Piccadilly was exempt from paying was valid under the
Code section because the exemption occurred prior to a plan for transfer being
confirmed under the code?
3. Language at issue: “under a plan confirmed”
4. Fl’s Argument:
a. The text unambiguously limits stamp-tax exemptions to “postconfirmation transfers”
i. The phrase “plan confirmed” denotes a “confirmed plan” meaning one that
has been confirmed in the past
b. “Under” means “subject to”. A transfer made prior to the date of plan confirmation

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cannot be subject to, or under the authority of, something that did not exist at the time
of the transfer—a confirmed plan
c. Congress places the code section in a subchapter entitled “Postconfirmation matters”.
Statutory titles and section headings are tools available for the resolution of a doubt
about the meaning of a statute.
d. Policy-based: Substantive Canon (clear statement rules)—Courts should proceed
carefully when asked to recognize an exemption from state taxation that Congress has
not clearly expressed. (If congress wanted to exempt these transfers, then they should
have been clear about it.)
5. Piccadilly’s Argument:
a. “plan confirmed” is not the equivalent of “confirmed plan” and had Congress
intended that, it would have used that language as it did in another code section.
b. “Under” can easily be read to mean “in accordance with” (American Heritage
Dictionary)
6. Holding: For Florida based on most natural reading of the text
7. Dissent: This is overkill. The statute achieves its purpose. Congress has outlined a plan
with the point to exempt some category. So, why does the court want them to be more
clear? “Statutory language is not a game of blind man’s bluff. Judges are free to
consider statutory language in light of a statute’s basic purposes.” The majority’s view
runs contrary to what Congress would have hoped for.
xv. Problem 4-1 p. 101-2
xvi. Resolving Ambiguity
1. Purposivists & intentionalists don’t really need to find ambiguity to go beyond the text
(Kalal: concurrence), but they may talk in those terms to convince their brethren (Koons:
majority)
2. Textualists will go beyond text to extrinsic factors (Koons: Kennedy concurrence), but if
ambiguity can be resolved from other intrinsic sources, will start there first (Koons:
Thomas concurrence)
xvii. State ex rel. Kalal v. Circuit Court, 681 N.W.2d 110 (Wis. 2004)
1. Facts: Atty accuses ‘er & wife of allegedly stealing funds earmarked for her retirement account.
DA writes letter saying atty can take action (in other words, DA is not going to prosecute).
2. Issue: Whether refusing means explicit refusal or implicit refusal?
3. Statutory language at issue: “refuse”
4. Law: The test for ambiguity generally keeps the focus on the statutory language: a statute is
ambiguous if it is capable of being understood by reasonably well-informed persons in two or
more senses. It is not enough that there is a disagreement about the statutory meaning.
5. Rule: statutes plain meaning is clear. Refuse means refuse!
6. Majority: can look beyond the text to confirm the plain meaning (although the court here doesn’t
feel like it needs to)
7. First concurrence: writes to address the statutory approach. Her approach would be to look at
legislative history – intentionalist (seems to be this way).
8. Second concurrence: agrees that there is a refusal, but doesn’t agree w/ anything else. Not
textualist, not intentionalist. Don’t really know where he stands.
xviii. A statute is absurd when: we don’t know! There is no one uniform answer to this question.
Depends on your approach to interpretation.
xix. Ambiguity means: the word or phrase is susceptible to more than one equally plausible
meaning
xx. In State v. Kalal, the majority likely follows which approach: textualist
xxi. In State v. Kalal, the first concurrence most likely follows which approach: intentionalist

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VII. Approaches to Statutory Interpretation

a. Introduction
i. All courts start w/ the text (no matter which interpretation)
ii. All courts will look beyond the text in 2 narrow circumstances: absurdity & ambiguity
1. The meaning of text matters greatly, since some courts require a reason to consider
anything beyond it
2. Some courts will not consider anything beyond text unless there is absurdity or ambiguity
iii. Judges are not uniform in their approach to statutory interpretation
1. While all judges look to the plain meaning of text, some look only to the text
2. Some look at the text along w/ other sources
3. There is no one clear answer to the question of what courts will look at when the
text is clear
4. Uncertainty gives lawyers tremendous flexibility & creativity (& challenges)
iv. ARGUMENT: When a statute’s text does not favor your client’s position, but other sources
do, need to be ready to persuade court that it is appropriate to consider those other sources
v. Whether a court will give any weight to sources beyond the text, & if so to which ones & to
what extent, turns on the approach that the jurisdiction or individual judge takes to statutory
interpretation
b. The Three Dominant Approaches to Statutory Interpretation What should a court do after it
looks for the plain meaning?
i. Textualism
1. Narrowest approach
a. Agent of the Constitution
b. The statute is the law (the only thing presented to the President for signature) and, absent
absurdity or ambiguity, should be the only thing examined.
i. a stringent textualist will only look at other sources in cases of absurdity or ambiguity
ii. a moderate textualist will look more broadly at other sources, usually to confirm an
interpretation or to verify that there is no ambiguity
c. Criticism: the meaning of words vary with verbal context and surrounding circumstances
2. In its most stringent form, textualism holds that it is improper to consider anything
beyond the text w/o first finding that the text is either ambiguous or absurd
a. Strict textualists are rare
b. A more moderate textualist will look more broadly at other sources, usually to
confirm an interpretation or to verify that no ambiguity exists
c. If a plain meaning interpretation of a statute leads to the “wrong” result, while the
legislative history leads to the “right” result, a textualist judge might more readily
find statutory ambiguity in order to get to the extrinsic source of legislative history
d. Textualists apply textual canons when text is ambiguous
3. EX: Justice Scalia (but he’s not rigid) (“I play the game like everybody else . . . . I’m in a
system which has accepted rules and legislative history is used. . . . You read my
opinions, I sin with the rest of them.”)
4. After looking at the words, punctuation, & grammar, a textualist is finished unless
there is reason, usually an ambiguity or absurdity, to consult other sources
5. Reasons why textualists won’t consider other sources
a. They contend that it is difficult, if not impossible, to discern the intent of a group,
each member of whom may have a different reason for supporting the legislation, &
so looking for meaning expressed in a form other than the text is misguided
i. For this reason, they contend that it is wrong to attribute the words used by

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one legislator during the legislative process to the entire legislature

b. Looking beyond the text implicates constitutional concerns
i. Want to hold Congress to its words
ii. To do otherwise would permit Congress to legisle w/o completing the req’d
process for enactment of legislation
6. This form has not universally been embraced
7. Criticisms
a. Many believe that courts can most accurately interpret language only by looking at all
possible meaning
b. Simplistic b/c the meaning of words varies w/ the verbal context & the surrounding
circumstances, not to mention the linguistic ability of the users & readers
c. By limiting the search for meaning to just the text, judges give themselves more
discretion to decide that a statute means what that judge thinks it should mean
(narrow approach permits a judge to frustrate the intent of the legislature)
ii. Sliding Scale
1. The plainer the statutory language, the more convincing the evidence of a contrary legislative
purpose or intent must be for examination.
iii. Intentionalism
1. Broader approach than textualism
2. Agents of the Legislature
3. Seek to determine meaning from the author(s)’ intent
4. Does not need a reason – like ambiguity or absurdity – to consider sources beyond the
text (principally legislative history)
5. In interpreting language it is imperative to be truthful to the intent of the author, and to do
so, one must consult extrinsic sources
6. In order to avoid “making law,” courts should strive to carry out the legislature’s intent
7. Examining legislative history helps to achieve the goal of furthering legislative intent
8. Criticisms:
a. There is no one unified intent
b. They use the floor reports, but the legislators do not read all the reports
c. Legislative history is NOT the law (constitutional argument)
9. Start w/ text, but seek to discern meaning from the author’s intent
10. Does not need a reason (like ambiguity or absurdity) to consider extra-textual sources
11. Will peruse all available sources, including (principally) legislative history
12. Believe that interpreting language is imperative to be truthful to the author’s intent
13. Appealing b/c the legislature, not the judiciary, has the constitutional power to legislate;
in order to avoid making law, courts should strive to carry out the legislature’s intent
14. Apply textual canons as part of the plain meaning determination
15. Criticisms
a. Are courts equipped to discern the legislature’s intent?
b. Reliance upon legislative history is questioned b/c not every legislator reads every
committee report or hears all floor debates (& yet intentionalists use statements made
in those legislative documents to discern the entire body’s intent)
c. B/c constitutions require legislatures, not staff members, to enact laws, reliance on
statements arguably is unconstitutional
d. The state & federal constitutions require a specific legislative process: approval by
legislatures & presentment to the executive for approval or veto. Legislative history
is neither approved by a legislature nor the executive.

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iv. Purposivism
1. Agents of the Legislature, but seek to further statutory purpose
2. Focus on the legislative purpose: focuses on the broad goals of a statute, on the problem
the legislatures meant to address by passing the statute; both the text & legislative history
help a court determine those goals
3. They believe that the interpretive function cannot be completed without considering other
sources.
4. Plus:
a. Allows courts to seek meaning from the broadest number of sources to make a more
informed decision
b. All relevant evidence bearing on the meaning of the language at issue
5. Minus:
a. Legislation is the product of bargaining and will rarely have a single purpose that can
guide interpretation
6. To the extent legislative history explains the evil at which a statute is aimed, it can aid in
this analysis
7. Do not need a reason to look to extra-textual sources to discern meaning
8. Apply textual canons as part of the plain meaning determination
9. Believe that the interpretive function cannot be completed w/o considering other sources
10. Strengths
a. Even more than intentionalism, it allows courts to seek meaning from the broadest
number of sources to make a more informed decision
b. Urges a court to consider all relevant evidence b/c the underlying premise is that the
more such evidence the court considers, the more likely it is that the court will arrive
at a proper conclusion re: the meaning
c. Allows its adherents to interpret statutes in situations never contemplated by the
enacting legislature
11. Criticisms
a. Some question the competency of the courts to ascertain the purpose of a statute:
“legislation is the product of bargaining btw various interest groups rather than an
underlying common will or purpose among legislators. Thus statutes will rarely have
a single purpose that can guide interpretation.”
b. Others are concerned that consultation of extra-textual, non-textual sources of
interpretation in every case, regardless of whether the language of the statute is clear .
. . subordinates the statutory text and renders the analysis more vulnerable to
subjectivity
c. Some suggest that purposivism, like textualism & intentionalism, encourages
“activist” or “unintended” interpretation
c. Judicial Disagreement over the Competing Approaches
i. Much disagreement btw & w/in courts on virtually all questions re: the appropriate approach
to statutory interpretation
ii. Most judges want to be right on the substance, rather than rigid in their approach to
statutory interpretation
iii. Movement in both courts & legislatures may be towards a more comprehensive approach, but
plain meaning remains the focal point
iv. Alaska Sliding Scale Approach
1. The clearer the plain language of the text, the more compelling the extra-textual evidence
must be to overcome the plain language of the text

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2. Said another way, the plainer the statutory language, the more convincing the evidence of
a contrary legislative purpose or intent must be
3. Comes after textualism in the hierarchy
4. Balancing Approach
a. Less clear the text, less overwhelming the text has to be
b. Clear, more overwhelming
d. State v. Courchesne, 816 A.2d 562 (Conn. 2003)
i. Facts: Δ stabbed to death one victim (over a drug debt); at the time she was stabbed, she was
pregnant; mother was DOA at the hospital, but baby was delivered & lived for 45 days before dying
of oxygen deprivation to the brain.
ii. Issue: Is it necessary for the state, in order to seek the death penalty based on the aggravating factor
of Δ committing the offense in an especially heinous, cruel or depraved manner, to prove the Δ had
killed both of the victims in an especially cruel manner?
iii. Statutory Language at Issue = the offense: “murder of two or more persons at the same time or in
the course of a single transaction” --the offense
iv. Δ’s argument: plain language compels the conclusion that both murders must be committed in the
manner proscribed by the aggravating factor in order for the factor to be established
v. Rule
1. Proof that Δ committed at least one of the murders in the specified aggravated manner is
sufficient
2. When viewed in its context & history the statute’s language leads to the conclusion that when it
refers to “the offense” as applied in the circumstances of this case, it means the murder of either
of “two” persons referred to in the statute & does not mean both murders
vi. Dissent
1. Majority abandons the plain meaning rule & fails to apply the rule of lenity in a death penalty
case in which the majority states that the text of the statutory provision at issue favors the Δ’s
interpretation
2. Would uphold the trial court’s application of the rule of lenity & require that the state prove
beyond a reasonable doubt that both murders were committed in a cruel manner in order to satisfy
its burden of establishing the existence of the aggravating factor
3. Public choice theory teaches that legislation is the product of bargaining btw various interest
groups rather than an underlying common will or purpose among legislators; thus, the statutes
will rarely have a single purpose that can guide interpretation
vii. Language at issue?
1. The offense
viii. State’s interpretation?
1. Either murder
ix. Defendant’s interpretation?
1. Both Murders – Plain Language
x. Majority
1. Either Murder (agrees with the state). (surprising because the text of the statute supports the
Defendant’s
a. Deterrence = Purpose
b. Finding this defendant guilty will deter others from killing over $410

xi. Dissent
1. Says there is a penal consequence: Dissent says follow the rule of lenity
xii. Majority’s Theory?
1. Purposivism—looked at purpose of death penalty
a. Statutes enacted for a purpose
b. All relevant evidence leads to better decisions
xiii. Dissent’s Theory:
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1. Ambiguous or absurd, Scribner’s error:

xiv. Dissent’s rationale:
1. No one else does it
2. Allows judges to be dishonest
3. Purpose is too general to be helpful
4.
a. Textualist, and focus on text
b. Judges can be dishonest
c. No one else does it
d. Purpose is hard to find—leads to uncertainty
e. Public choice theory
f. Purpose is too general to be helpful.
g. Encourage legislator to draft more clearly
e. Problem 5-1
i. What if Whetmore had never withdrawn consent?
1. Can’t consent to your own death
2. Where in the text does it say anything about mitigation?
a. Textualist approach: “taking” a life vs. “accepting” a life
b. Sliding scale: didn’t act willfully (definition: done deliberately; often a conscious violation
or disregard of the law) b/c . . . difficult argument b/c statute is pretty clear
ii. What if Whetmore had refused to participate in the plan from the beginning, & the others
overpowered him when he legitimately lost the dice game (which they played for him)?
1. Language is very clear
2. No purpose clause or legislative history here; we only have a judge reading the statute
iii. What if Whetmore were 14 years old & the other members of the group were adults (same facts as in
problem case)?
1. Actual case: drew lots; 14 year old boy lost; not prosecuted for eating 14 year old
2. Nowhere in the text here does it say there is a difference btw adults & children
iv. What if Whetmore, an adult, was the weakest & most likely to die & the others simply overpowered
him w/o casting lots? 33 guilty; 1 not guilty
v. What if one explorer simply tried to kill Whetmore & Whetmore killed that explorer in response
(assume only the statute applies)? 16 guilty; 17 not guilty
1. Case law: look at the purpose of the statute & use the word “willfully” to get them there
2. Can argue that “willfully” is ambiguous – would have to argue this for all the others
a. Must argue that result is absurd
b. ARGUMENT: Can argue the “take the life” language; self-defense, not intending to “take
the life,” intending to protect myself
f. Questions
i. As a judge, I would use the following approach: textualist, intentionalist, purposivist, sliding
scale? There is no right answer. Make sure you can support your approach.
ii. Overall, we found reasons to justify the result we wanted.
VIII. The Textual Canons: Noscitur a Sociis & Ejusdem Generis
a. Questions
i. According to textualists, when should the textual canons be applied: after plain meaning
has been addressed & the statute is ambiguous or absurd
ii. According to purposivists/intentionalists, when should the textual canons be applied:
together with the text’s plain meaning
iii. In the following phrase: “assault, beat, and wound,” the word assault cannot mean a violent
physical attack due to the following rule: Rule Against Surplusage
iv. In the following phrase: “assault, battery, and false imprisonment, we interpret the word
assault as meaning “freedom from apprehension of a harmful or offensive contact” due to the

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following rule: noscitur a sociis

v. The rule noscitur a sociis directs that: the meaning of words that are placed together in a
statute s/b determined in light of the words w/ which they are associated
vi. Some courts will consider many of these canons only under limited circumstances, such as
when an ambiguity exists: . . . from context
vii. Applying noscitur a sociis to the following list “Duck, Goose, Pig, Swan, Heron,” a judge
should interpret pig to mean: a judge should not apply the cannon to words occupying
the same level of abstraction, & a judge should not apply the canon to words that are
not ambiguous
b. Introduction
i. Description: canons lay somewhere btw the text & purely extrinsic evidence
ii. Focus: legislature’s enacted “expression”
iii. Criticisms
1. B/c they mainly go by Latin names, the common-sense direction they offer becomes
clouded in legal mystery
2. Apparently inconsistent: academics argue that for every canon there is an equal &
opposite canon
3. Authors think criticism is misguided
c. When Should Textual Canons Affect Plain Meaning?
i. Textual canons often state what might seem to be obvious
ii. Words are inherently ambiguous; at a minimum, the context surrounding the words at issue
(meaning the remainder of the statute) will play a role in a their interpretation
iii. What should courts properly consider besides the words themselves?
iv. Although canons are often used to resolve ambiguity, that is not always the case
d. The Rule of Lenity: An Introduction
i. Based on constitutional concerns
1. DP requires that criminal statutes give fair warning of the scope of criminal law
2. Thus, a person cannot be punished for engaging in conduct that a reasonable person
imputed w/ knowledge of the law could not know was illegal
ii. Generally applied only if
1. The statute at issue is penal in nature; and
2. The statute is ambiguous even when the purpose & legislative history of the statute have
been analyzed
iii. Courts generally do not apply the rule of lenity unless the ambiguity persists even after
examining all other sources of interpretation
e. The Common Textual Canons
i. The Rule Against Surplusage
1. A textual canon
2. Every word is placed in a statute for a reason
3. “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.”
a. Why would you want the legislature to use 10 words that basically same the same thing when
they could use one word that would cover everything?
4. Avoid interpreting a provision in a way that would render other words, sections, or provisions of
the Act superfluous or unnecessary
5. Every word/clause/phrase of the statute matters
a. It is a “cardinal principle of statutory construction” that “ a statute ought, upon the
whole, to be so construed that, if it can be prevented, no clause, sentence, or word

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shall be superfluous, void, or insignificant”

b. Thus, a statute should not be interpreted in a way that renders a word superfluous
6. Presumption: that the legislature did not just put words in for no reason. Each word,
phrase, & sentence has meaning
7. Reality: in conflict w/ how lawyers think & write; legislatures often try to cover all
possibilities
8. 2 distinct aspects
a. Every word must be given meaning: a statute cannot be interpreted in a way where
certain words or provisions are rendered superfluous by the interpretation
b. Different words in the same statute cannot mean precisely the same thing: if
they did, one word would be redundant
9. EX: If statute imposes liability for “malice and intent,” both “malice” & “intent” must be
proved, & each word must be interpreted to mean something different than the other
10. Rule is not absolute
11. Few exceptions
a. Courts may reject words as surplusage if they are completely meaningless or
inconsistent w/ the legislature’s intention as plainly expressed in the statute
b. Exceptions also exist where words are clearly “inadvertently inserted” or where they
are “repugnant to the rest of the statute”
c. In rare cases, words can be ignored where they are “patently” surplusage
12. Feld v. Roberts & Charles Beauty Salon, 459 N.W.2d 279 (Mich. 1990)
a. Facts: ‘ee was injured on the job & filed for workers’ comp; pursuant to statute, ‘er & its
insurance carrier requested ‘ee to undergo a medical exam to be conducted by a physician of
their choice; ‘ee refused unless accompanied by her attorney
b. Procedure: hearing referee (Workers’ Comp Board?) granted ‘er mtn to suspend payment of
benefits until ‘ee submitted to medical exam – held that atty had no right under statute to be
present; Court of Appeals reversed, holding that ‘ee did have right to have her atty present;
‘er appealed
c. Issue: Whether ‘ee has right, under statute, to have atty present at ‘er-requested med exam.
d. Statutory Language at Issue: “The employee shall have the right to have a physician
provided and paid for by himself or herself present at the examination.”
e. π (‘ee’s) argument: an ‘ee has the right to have counsel present during the medical exam b/c
the statute does not expressly preclude attorneys
f. Analysis: This rational (π’s argument) ignores the obvious fact that the legislature has
expressly prescribed that an ‘ee has the right to have a personal physician present; to read into
the text the right of an ‘ee to include the presence of an atty merely b/c the statute doesn’t
expressly prohibit counsel would neutralize the effect of the entire § 385 sentence in question
& render it nothing more than surplusage
i. Why say one person (doctors) can be there when everyone can be there?
ii. Maybe legislature assumed that attorneys already could be present.
iii. Maybe legislature was trying to address a particular need it saw &, therefore, focused
on physicians
g. Rule: “The fundamental rule of construction that every word in a statute should be given
meaning and no word should be treated as surplusage if at all possible, is applicable . . . .”
“Therefore, we determine that the legislative intent of § 385 is to limit the right of an
employee to the presence of a personal physician during an examination requested by an
employer. Thus, we conclude that § 385 does not grant an employee the right to have counsel
present during a physical examination requested by the employer . . . .”
h. Make the statute clearer: “only physicians”
i. What about w/holding comp: she’s not obstructing, just wants to bring someone w/ her

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ii. Noscitur a Sociis

1. Introduction
i. Definition
ii. Literal: “It is known from its associates.”
iii. Explanation: the meaning of words that are placed together in a statute s/b
determined in light of the words w/ which they are associated.
b. Expresses the common sense notion that although a phrase or a word may mean one
thing in isolation, it may mean something substantially different when read in context
c. Words grouped in a list should be given related meaning
d. The meaning of words that are placed together in a statute should be determined in
light of the words with which they are associated
i. The common trait shared among words grouped together
1. Example: assault
a. Assault, wound, beat, kill
i. Ordinary, physical interpretation
b. Assault, battery, IIED
i. Technical, legal meaning
c. Assault, robbery, kidnapping, rape
i. technical, criminal meaning
e. The coupling of words together shows that they are to be understood in the same
sense.
f. The canon thus expresses the common sense notion that although a phrase or a word
may mean one thing in isolation, it may mean something substantially different when
read in context
g. Criticisms
i. The Rule Against Surplusage & nosictur a sociis can be in tension
ii. Does the canon apply to unambiguous text? Perhaps more than any other
canon, it makes sense to apply this one regardless of ambiguity, since
context provides meaning. However, courts disagree as to when to use it.
1. Some courts use it as part of textual analysis
2. Others hold that cannot be used if the text is unambiguous
h. Presumption: words w/o context may be meaningless: Context will explain which
meaning was meant
i. Reality: overuse can render words meaningless & conflict w/ rule against surplusage
i. Should only be applied to words w/ different levels of abstraction; &
1. Like: snacks, apples, grapes, carrots
2. Not to: boiling, hot, lukewarm, cool, cold
3. Not to: duck, heron, goose, pig, swan
ii. Should only be applied when words don’t have independent
meaning/unambiguous meaning
1. Not to: duck, heron, goose, pig, swan
2. People v. Vasquez, 631 N.W.2d 711 (Mich. 2001)
a. Facts: officer investigating a complaint re: a loud party found Δ urinating on the front lawn
of a private residence; suspecting that Δ was an intoxicated minor, officer requested Δ’s name
& age; Δ lied about both; prosecutor charged Δ w/ “resisting and obstructing” via statute
MCL 750.479; trial court quashed the charge
i. D lied to a police officer
b. Issue: Whether Δ “obstructed” w/in the meaning of the “resisting and obstructing” statute,
the police officer when he lied to him.
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i. whether, by lying, the D ‘obstructed’ the police officer

c. Statutory Language at Issue: “obstruct”
d. Analysis: word “obstruct” is used in a list of 5 other words (resist, oppose, assault, beat &
wound) & should be considered in that context & given a meaning logically related to the 5
surrounding words of the statute. Each of the words, when read together, clearly implies an
element of threatened or actual physical interference. No physical interference here. Had
legislature intended to include non-physical forms of obstruction, would have used other
words, such as lies, falsifies, etc.
e. Rule: Legislature chose 6 words that when read together, evidence an intent to proscribe
only threatened or actual physical interference, & there is none here.
f. Majority held that the six words grouped in the statute (obstruct, resist, oppose, assault, beat
[and] wound) had only a physical element linking them together, so lying would not fall within the category of
obstruction as laid out by the statute.
i. Policy based argument: Rule of Lenity
g. Concurrence: When viewed together, in proper context, the words depict a range of
conduct: the behavior runs from verbal utterances & physical acts that threaten to physically
interfere w/ an officer to the erection of physical barriers, physical interference, & the
perpetration of physical harm. If we think of it as separate acts, we will have gaps in between.
i. The concurrence felt that the words were laid out in a continuum from the mildest
violation (obstruct) to the severest violation (wound)
h. Dissent: Many common & approved usages of the word “obstruct.” Disagrees w/ the
majority’s conclusion that the legislature’s placement of the word “obstruct” in a list of words
also including (the others) indicates an intent to limit the common meaning of the word to
include only physical obstruction. The lead opinion’s conclusion that physical interference is
the only element common to all six words overlooks the fact that the simple notion of
interference also connects the six words. Dissent says that applying noscitur a sociis make
the term ambiguous.
i. Dissent uses another canon & looks at the statute as a whole: in another part of the
statute, legislature broke up first 3 words & second 3 words
ii. If look at it this way, makes the term clear
iii. The dissent pointed out that the six words were separated into two groups earlier in
the statute; and if the cannon will be applied it should be applied to the separate groups
1. Furthermore, the dissent feels that there is no ambiguity so the cannon should not
be applied
a. by applying the cannon to all six words, the majority created an ambiguity
iii. Note 6 p.171
1. Use Noscitur a sociis all the time says Jellum. You can’t read something without inherently
doing it in your mind. Duck, Goose, Pig, Heron. We use it but not to this level. We don’t have to look at every
meaning and rob them of their independent meaning!
iv. Problem 6-2 p. 172
1. “by physical or non physical interference”
2. Add in language that causes “anything that can cause a distraction or delay to the police work”
3. Remove all 6 terms and say “inhibits”
4. Define words
5. “included, but not limited to”
6. “or otherwise”—general catchall to the end of the statute
7. Findings, Purpose Clause or Preamble
8. Legislative debate—legislative history
v. Ejusdem Generis – “of the same kind, class, or nature”
1. Introduction
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a. What trait do the words share?

b. A species of noscitur a sociis (but applies to catch alls); like noscitur a sociis, raises
the issue of what trait the words share
c. When general words in a statute precede or follow the designation of specific things
(as in a list, such as “cars, boats, and other vehicles”), the general words should be
construed to include only objects similar in nature to the specific words.
d. You use this cannon when there are general words used or where words were placed
as a “catch-all”
i. Catch-alls are often placed as a way for the legislature to include all possible
instances to which they have yet to foresee, yet not able to include (to cover
their butts in cases for which they did not foresee)
e. Definition
i. Literal: “of the same kind, class, or nature”
ii. Explanation: when general words in a statute precede or follow the
designation of specific things (as in a list, such as “cars, boats, and other
vehicles”), the general words s/b construed to include only objects similar in
nature to the specific words
1. The specific words indicate the class of items to which the statute applies
2. The general words extend the statute to everything else in the identified
class including things that might not have existed when the statute was
enacted
3. The “all other” canon
f. Compare to noscitur a sociis:
i. Noscitur a sociis: broader concept
ii. Ejusdem generis: narrows down a list: the “all other” category
g. Presumption: legislature is trying to limit the general catchall to the types of activities
mentioned
h. Reality: legislature simply is trying to be sure it has plugged all the holes
i. Courts disagree on whether it should be applied to unambiguous text
j. Not an ironclad rule, an aid for interpretation
k. When the list of things is not sufficiently similar, ejusdem generis should not apply
l. Raises the specific issue of whether, & if so how, a list’s trait should constrain the
meaning of generalized catch-alls
m. Typically is used to narrow broad catch-alls or statutes that define terms as “including
but not limited to” a series of specifics
2. Ali v. Fed. Bureau of Prisons (2008)
a. Facts: Federal Prisoner—left two duffle bags of personal property at a prison—
transferred to new prison. Noticed items missing---religious and nostalgic. Field
complaint violation of Federal Tort Claims Act. Action barred.
b. Issue: Whether the BOP officers who allegedly lost petitioner’s property qualify as
“other law enforcement officers within the meaning of Section 2680 (c)?
c. Statutory language at issue: any other law enforcement office
d. P’s argument: Not an officer—not exempt. Only includes cops acting in a customs
or excise capacity.
i. Relies on ejusdem generis: when a general term follows a specific term, the
general term should be understood as a reference to subjects akin to one with
specific enumeration. In P’s view: any officer of customs or excise or other
law enforcement should be read as a 3 item list, and the final catchall phrase

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other law enforcement should be limited to the officers of the same nature as
the preceding phrase.
e. Court’s Interpretation: “Any” has an expansive meaning. Congress’ use of “any”
to modify “other law enforcement officer” is most naturally read to mean law
enforcement officers of whatever kind.
i. Also the text references to “tax or customs duty” and any officers of customs
and excise indicate that Congress intended to preserve immunity for claims
arising from enforcement of tax or custom.
f. Holding: for D—Cops.
g. Rationale: Had Congress intended to limit the statute’s reach it could easily have
written “any other law enforcement officer acting in a customs or excise capacity.”
Instead, it used the unmodified, all-encompassing phrase “any other law enforcement
officer.” Statute therefore forecloses lawsuits against US by any not just some law
enforcement officers.
h. Dissent (1): Court uses “any” . It takes a single phrase to extend the statute so that it
covers all detentions of property by any law enforcement officer in whatever capacity
he acts.
i. The word any can mean many different things and must be limited to objects
the legislature intended them to apply.
ii. The courts construction of the phrase any other law enforcement office runs
contrary to our duty to give effect, if possible, to every clause and word of a
statute. Adds to more surplusage
iii. Congress specifically meant to apply it to customs and excise, and not so
broad, as example by legislative history.
i. Congress did not intend for NO law enforcement officer in the US to be exempt from
Tort action
j. Dissent (2): The issue is what was congress’ scope?
i. Context and not dictionary set scope
ii. Legislative intent: based on context, congress intended a narrow tort-liability
exception for customs and excise
iii. Looks to drafting history
iv. The difference between a broad and limited exception is huge. “A limited
interpretation of the phrase “any other officer” would likely encompass only
those law enforcement officers working at borders to enforce custom and
excise. The majority instead interprets it broadly to include tens of thousands
of officers performing unrelated tasks.”
3. Commonwealth v. Plowman, 86 S.W.3d 47 (Ky. 2002)
a. Facts: criminal action against Δ for second-degree arson
i. D set fire to a bulldozer; an arson statute prohibited the setting fire of vehicles.
b. Issue: Whether a bulldozer is a building w/in the meaning of the statute?
i. Whether a bulldozer is a vehicle for the purposes of the arson statute?
c. Statutory Language at Issue: “vehicle”
i. D: a vehicle is something that transports people
ii. State: vehicle is anything that moves people or things
d. Rule: Yes, a bulldozer is a vehicle
e. Analysis: Legislature gives a definition of building (strange meaning, not plain meaing); do
not apply plain meaning when there is a statutory definition
f. Majority: a bulldozer is a building b/c when look to statute’s history & intent of the
legislature, decides that legislature intended word “vehicle” to have an expansive meaning

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(originally only applied to places people live, but was broadened in 1982); says its
unnecessary to apply ejusdem generis or any other textual canon b/c unambiguous. Doesn’t
give us a definition for “vehicle.” Doesn’t tell us what vehicle means. Just says that a
bulldozer is a vehicle.
i. Ejusdem Generis should not be applied to the interpretation of the statute b/c there is
no ambiguity
1. the definition of vehicle clear (and yet the majority never expounds on what that
definition is)
ii. The legislature intended an expansive view for the word buildings
iii. the court held that a bulldozer is a ‘vehicle’ within the definition of a ‘building’ for
purposes of the arson statute
g. Dissent
i. Vehicle is defined as a device for transporting persons or things; a conveyance
1. A bulldozer is for the clearing of land; serving no meaningful
transportation function
ii. “vehicle” in its plain meaning – i.e., a means of transporting persons or goods
 this places bulldozers outside the scope of the arson statute
iii. Says that vehicle is ambiguous b/c
1. Ambiguity is inherent when people can reach different reasonable interpretations
re: the meaning of language (but this is not our test)
2. Statute doesn’t include a definition, so the word’s ambiguous (but this is not our
test either)
3. Patent redundancies in the statute (but is not our test either)
iv. Says vehicle is: “a device or structure for transporting persons or things; a
conveyance” or “[t]hat in or on which any person is, or may be carried . . .”
v. Bulldozer: earth mover
vi. Dissent uses ejusdem generis to resolve the alleged ambiguity; shows that vehicle
means moving property
vii. Connotations are associations you put w/ a word
viii. Ejusdem generis gives a word its connotative meaning
ix. BUT, by using dissent’s interpretation, have violated the rule against surplusage. On
the other hand, if said all vehicles, might cover bulldozers, etc. Creates tension btw
the canons.
vi. COMPARE: Ejusdem Generis & Noscitur a Sociis
1. EG tells us how to find items outside the list expressed in the statute
2. NAS tells us how the list gives meaning to the items w/in it
3. When there is a list of items w/ a general collective (or catchall) phrase such as “other,”
EG is the applicable canon, not NAS. This distinction preserves the purposes of these 2
different canons.
4. Courts often use the terms interchangeably, but that is wrong
vii. Expressio (or Inclusio) Unius Est Exclusio Alterius
1. Introduction
a. Definition
i. Literal: the inclusion of one thing excludes the other
ii. Definition: by including specific items & not using a catch-all, the legislature
meant to exclude items not listed
iii. This is a rule of negative implication
1. by including some things, the legislature intentionally left out others
iv. Example:
1. My children are Jonathan, Ross, and Emily.

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a. This means than none of my children are Samuel

2. Federal Rule of Civil Procedure 9(b) requires allegations of ‘fraud or
mistake’ be pleaded with particularity.
a. In applying the cannon, the courts have held that no other allegation
need be pled that way – just fraud or mistake.
b. Properly applied only when it makes sense as a matter of legislative purpose
c. Understood as a descriptive generalization re: language rather than a prescriptive rule
of construction, the maxim usefully describes a common syntactical implication
d. Presumption: the legislature actually considered all possible options & selected only
those it wanted
e. Reality: legislature rarely thinks of every possibility; hence, the catchalls
f. In some circumstances, of course, considering all options is impossible; therefore, a
few judges have suggested that this canon is unreliable & should not be followed
g. Should not be used w/ ejusdem generis
2. Chevron U.S.A., Inc. v. Echazabal (2002)
a. Facts: Echazabal applied for a job with Chevron. He had Hepatitis C. Exposure to
toxins in Chevron plant would aggravate the illness. He sues.
b. Issue: Whether Americans with Disabilities Act of 1990 permits a regulation of the
EEOC to hire an individual because of his performance on the job would endanger his
own health, owing to a disability?
c. Statutory language at issue: pose a direct threat to others--qualification standard
d. Qualification standard under EEOC: a person may not pose a risk to himself or
others.
e. Chevron’s Argument: relies on qualification standard
f. P’s argument: omission of this means that Congress did not intend it=expresio unius
est exclusion alterius
g. There is not a list—you have to have two or more items to have a list and you must
look to the list.
h. Take away from the case-bottomline: ejusdem generis is inappropriate where
there is no list.
3. Dickens v. Puryear, 276 S.E.2d 325 (N.C. 1981) (sexual pervert gets his ass kicked)
a. Facts: π sleeping w/ Δs 17-year-old daughter & gave her drugs & alcohol
i. P was beaten and threatened by the D. D then told the P that if the D didn’t
leave town or P would be killed. P’s claim is intentional infliction of
emotional distress. The P filed his claim after 1 year had run, but before 3 yrs.
1. The SoL for assault and battery is one year; there is a general SoL of three
years.
b. Issue: Whether the 1-year SoL applied or the 3-year-SoL applied to the future threat of harm.
i. Whether an IIED claim is barred by the one year SoL, where the IIED claim is
based in actions of assault and battery.
c. Footnote eight has the language of the statute which doesn’t list an IIED claim:
i. “Libel, slander, assault, battery, or false imprisonment.”
1. What is an assault?
a. Three possible meanings:
i. Ordinary meaning/conception;
ii. Legal meaning (tort)
iii. Criminal
d. Statutory language at issue: assault
i. D claims that the IIED claim is grounded in assault and battery, therefore the
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claim should be barred by the one year SoL

1. D wants the ordinary meaning applied
ii. P argues that the factual showing on the motion supports a claim for IIED a
claim which is governed by the 3 yr period of limitations
1. P wants the legal interpretation b/c it could still encompass the future
threat
iii. What does the court use? The legal meaning is being implemented
1. Why? Well, who is the SoL audience? Attorneys (legal audience)
a. Compare this to the term assault being given aordinary meaning in the
case where the kid jumped on the teacher’s back and the audience of
the statute was teachers/school officials
2. Nositrus Sotrios: the common link between the five words listed in the
statute is the tort element
3. Express Unius Est Exclusio Alterius: the presumption is that the
legislature thought of all the possibilities, and the legislature
decided/purposefully left IIED claim out
a. Problem with this presumption is that legislatures never think of
everything
b. You do not use Expressio Unius where there is a catch-all
4.
e. Rule: Future threat falls in the 3-year-SoL b/c legislature meant to exclude it
f. The court held that had a claim for assault and battery (which was barred by the one
year SoL), and a separate claim for IIED which is governed by the 3 year SoL.
g. Analysis
i. Threats for the future were actionable. Assault barred
ii. Why use legal meaning of assault? Ambiguous. Know that assault can have more
than one meaning, so apply noscitur a sociis; b/c in the context of battery & other
intentional torts, apply the legal meaning
iii. What language should the legislature used?
1. “All intentional torts”
a. Sometimes less language give you more options
viii. Problem 6-3
1. The term “common show” is/is not (circle one) ambiguous because:
a. Is
b. When look the term, there is more than one equally plausible meaning
i. “Common” has 19 definitions listed in the Webster’s dictionary
ii. “Show” has 29 definitions
1. So what did the legislature mean by “common show?”
a. Did they mean any exhibit that could be seen and used by the public
(like a self operated mechanical horse), or those events that had to
supervised by an operator (like rides at a carnival)?
b. What was common to refer to? The frequency of occurrence of the
show’s use, or to the quality of the ‘show’ being presented?
2. You would have to look to other sources, outside the plain words of the
statute, to ascertain what the legislature meant by ‘common show’
therefore the phrase is ambiguous.
c. Doesn’t have an independent meaning outside of the statute
d. Therefore, look to definition in statute, which also can have more than one equally plausible
meaning b/c “all other shows of like character”
2. Which textual cannons should be applied?
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a. Ejusdem Generis (same kind, class, or nature)

i. What does the list of ‘common shows’ have in common?
1. they are all generally found at carnivals
2. they are all run/operated by a carnival employee
3. tickets/money is given to a carnival employee to participate
4. all are supervised activities
3. What interpretation will a court use?
a. Since the list of activities listed under the definition of common show by the
legislature are generally monitored activities associated with carnivals, an
unsupervised customer-operated mechanical horses located in front of a store used by
children would probably not be included by the statute.
b. A court would most likely apply the canon noscitur a sociis/ejusdem generis to this statute b/c
i. General words “and all other shows . . .”
ii. Follow designation of specific things
4. Applying noscitur a sociis/ejusdem generis (whichever you choose above), a court would likely
rule that the mechanical horse is/is not a common show because
a. Common factor: entertainment/amusement ride for money (is)
b. Common factor: stuff typically found at the fair (not in front of a store for $) (is)
c. Common factor: in statute, rides accommodate many people (is not)
5. Applying expressio unius, a court would likely rule that the mechanical horse is/is not a common
show because: it’s not specifically included in the statute
6. The most likely result is that a court would likely rule that the mechanical horse is/is not a
common show because of which of the above rules
a. Is
b. Ejusdem generis
ix. The Presumption that Identical Words in the Same Statute Have Identical Meaning
1. When you change a word, you change the meaning – REMEMBER THIS ! (This is
especially important as to legal writing.)
2. “Identical words used in different parts of the same act are intended to have the same
meaning.”
a. “Presumption is not rigid & readily yields whenever there is such variation in the
connection in which the words are used as reasonably to warrant the conclusion that
they were employed in different parts of the action w/ different intent.”
3. The use of identical words in different places creates a presumption that each should be
given the same meaning, but other facts may overcome the presumption and, as a
consequence, allow a court to ascribe different meanings to the same word.
4. Meaning may well vary to meet the purposes of the law, to be arrived at by consideration
of the language in which those purposes are expressed, & of the circumstances under
which the language was employed
5. Usually applies to one particular statute
6. JENSEN v. ELGIN, JOLIET & EASTERN RY. CO. (1961) Kids lose 
a. Facts: Decedent sustained a back injury at work; D was found liable and damages
were awarded; the judgment was reversed however and the cause was remanded for a
new determination of damages.
i. Decedent dies from other causes before the determination could be made.
ii. An adminisistratrix was substituted in the complaint and was amended for the
benefit to go to the decedent’s adult, non-dependent children
b. Statutory sections at issue: The term ‘children’ was used in §1 of the Federal
Employers’ Liability Act and §9 (which is being interpreted in this case)

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i. Section 1: Wrongful death – [right of action for wrong death in the personal
representative] for the benefit of the children of such employee …
1. the term children was interpreted as meaning “dependant minor children”
ii. Section 9: Any right of action … shall survive to his or her personal
representative, for the benefit of the children of such employee …
c. Issue: whether the right of action of an injured employee may be prosecuted for the
benefit of the decedent’s adult nondependent children
i. P: wanted the ordinary meaning of the word children
ii. D: wanted the narrow interpretation that the purpose of the statute was to
protect the minor defendant children
iii. SC had interpreted children in section 1 as dependant children
1. Identical words presumption: identical words in the same statute are
presumed to mean the same thing  corollary of this presumption is that
different words have different meanings
2. Remember that the act is different from the statute: the act is what the
legislature passes; the statute is what is signed into law. The act can be
broken up and placed in different areas when signed into statute status
d. The court found that the children are not in a position to ask for a judgment in their
favor when their father died of other causes
7. JENSEN v. ELGIN, JOLIET & EASTERN RY. CO. (1962) Kids win 
a. This court felt that the lower court erred in assessing that since section 1 was
interpreted as minor dependant children, section 9 (using the same language) meant
the same
b. The basis of liability and measure of damages that may operate to prevent some
children from recovering under the wrongful death provisions of section 1 are not
present in an action which survives under section 9
i. In section 1, the children are suing on behalf of their own injuries
1. An adult child would not have monetary damages
ii. In section 9, the children are continuing the suit that was brought on the basis
of the dead person’s injury
1. The money would go to the state
c. The court is of the opinion that the word ‘children’ has its ordinary dictionary
meaning in both sections 1 and 9.
x. Questions
1. A court will apply in pari materia only when text is ambiguous.
a. False
b. This is the one exception
2. The Whole Act Rule directs courts to
a. Look at the entire statute whenever enacted a whole
b. This is one aspect of “in pari materia”
3. When a legislature has not defined a word, it is appropriate to look at how the identical
word was interpreted in another statute IF the other statute shares a common purpose
w/ the first
xi. In Pari Materia-tells us where in the statute we can look for a word’s definition
1. Definition
a. Literal: “part of the same material”
b. Presumptions:

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i. internal consistency within a single statute, as well as coherence among

different statutes on the same subject
ii. Courts can readily discern when two statutes are “related” enough so that the
same word used in each one should be given the same meaning
1. Both presumptions are not always realistic
c. Two aspects of this canon:
i. Whole Act: Words of a single section must be construed in light of the entire
statute, and not in isolation (Patriot Act example)
ii. Whole Code: The same word in ‘related’ statutes be given the same meaning
d. Explanation: if the legislature uses the same words when legislating on similar
subjects, those words should be given the same meaning; the language of a statute s/b
interpreted in context, meaning both the statute as a whole & other related statutes
e. In Pari Materia is broader than Identical Words Presumption: applies across statutes
& sections of statute
2. Two aspects
a. Whole Act: Statutory construction is a holistic endeavor
i. A provision that may seem ambiguous in isolation is often clarified by the
remainder of statutory scheme
ii. In other words, words must be construed in context of the act as a whole
b. Whole Code: The same word in “related” statutes be given the same meaning
3. Presumptions
a. Internal consistency w/in a single statute
b. Coherence among different statutes on the same subject
c. Courts can readily discern when 2 statutes are “related” enough so that the same word
used in each one should be given the same meaning
d. Presumptions are not always realistic
4. The Whole Act Rule
a. Rule: a provision that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme; in other words, words must be construed in
context of the act as a whole
i. Look at the entire statute, and
ii. Look at the entire act (i.e., Patriot Act)
b. Presumption: legislature is aware of all existing, related laws & considers the statute
in its entirety to enact statutes that are consistent
c. Reality: legislature rarely is aware of all the existing relevant laws, but it should be
d. Example: Rhyne v. K-Mart Corporation, 449 S.E.2d 371 (N.C. 2004)
i. Facts: P’s were assaulted & beaten by 2 K-Mart ‘ees after walking around in a K-
Mart parking lot for the second time (supposedly for exercise). ‘ees as agents for K-
Mart, were convicted of false imprisonment or unlawful detainment, IIED, &
negligent injury to P’s; P’s each were awarded compensatory as well as punitive
dmgs
ii. Issue: Whether the punitive damages statute caps damages in a multi-party P suit as
to P’s combined or individually.
1. Does the 250k cap limit the amount per plaintiff, or per defendant?
iii. Statutory Language at Issue: “a defendant”
1. This is not an absurd statute (its not a good statute either), but its not
absurd (it doesn’t shock the consciences and it doesn’t go against the
purpose of the legislature
iv. K-Mart’s Argument: plain meaning
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v. Should apply per defendant. The use of singular terms in the statute applies to reduce
each P’s individual punitive damages award.
vi. Is “a defendant” ambiguous? Yes, b/c has 2 equally plausible meaning
1. Singulars tend to include plurals in statutory construction: not a realistic rule, but
used to make statutory construction easier
2. A defendant: plain meaning would suggest singular
vii. Rule: No, the cap isn’t limited to P’s combined, it is extended to P’s individually
(even if joined together in a lawsuit). The trier of fact should consider factors as to
each P’s cause of action and not as to each D.
viii. In Pari Materia--Majority goes outside & looks at the whole act & says that the
statute says “a verdict” as well & means a singular connotation; also looks to other
parts of the statute to determine singular
1. Although the statute refers to the a defendant in the singular, the
second sentence refers to a verdict (in the singular)
a. A jury may return multiple verdicts on one verdict sheet and we
may refer to the multiple verdicts in the singular “the jury
returned its verdict” however this doesn’t mean that only one
verdict was remitted.
2. Holding: the statute applies to limit the recovery of each plaintiff
ix. We can look to the purpose to find in pari material--What was purpose of
statute? Maybe . . . (we don’t have definitive indication)
1. To limit punitive damage awards
a. If this were the purpose, does the decision fulfill this purpose?
i. Yes, b/c damages were actually reduced (from $11 million), but
could argue that would be even less if combined
2. Ensure conduct is punished only once—so, doesn’t want to allow a bunch of
different punitive awards—only one
a. Does decision fulfill this purpose?
i. Yes: P’s acted separately, so liable to each person
ii. No: Part of the same transaction or occurrence, punishing twice
5. The Same Word in Related Statutes Should Have the Same Meaning Rule
a. Rule: The same word in “related” statutes be given the same meaning; look at those
statutes that share a common purpose
b. Presumption: legislature is aware of all existing, related laws & considers the statute
in its entirety to enact statutes that are consistent
c. Reality: legislature rarely is aware of all the existing relevant laws, but it should be
d. Example: Commonwealth v. Smith, 728 N.E.2d 272 (Mass. 2000)
i. Facts: Δ engaged in sexual activity w/ his daughter, beginning at age 11
ii. Issue: Whether a Δ who engages in sexual activity w/ his daughter but doesn’t
penetrate her vaginally w/ his penis is guilty of incest as set forth in G.L. c. 272, § 17.
(Whether oral sex counts under the incest statute here?)
iii. Statutory Language at Issue: “sexual intercourse”
iv. Rule: No.
v. D wanted technical meaning.
vi. Analysis
1. Sexual intercourse as used in the statute does not encompass unnatural sexual
acts or other sexual activity
2. Legislature has not defined sexual intercourse in either the incest statute or the
rape statute
3. Majority says the term is ambiguous (“the term ‘sexual intercourse’ in the
incest statute . . . could properly be construed to encompass the acts here alleged
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to have been engaged in by the Δ w/ his daughter”)

4. Δ argues that when legislature amended rape statute in 1974 to include unnatural
sexual intercourse & then in the Gallant case, court defined sexual intercourse for
purposes of the rape statute, didn’t amend the incest statute & incest statute
doesn’t include unnatural intercourse
5. Majority says not in pari materia w/ this statute (b/c they are in different statutes
 the purpose of a rape statute is different from that of a incest statute)
a. Incest statute purpose: protect children and protect family integrity
6. Majority refuses to define the rape statute broadly b/c in Decency Chapter there
is a section re: drugging people for sex & legislature there changed the legislation
to include both sexual intercourse & unnatural  the legislature had many
chances to amend, but didn’t amend the incest statute but choose not to.
7. Majority Opinion: You have in pari materia when you have two different
statutes in the same chapter. So should a drug statute be more related and in
pari materia with and rape statute just because it appears in the same chapter
than instead of an incest statute because it is not in the same chapter?
vii. Dissent
1. Wants a result-oriented outcome
2. Based on the purpose of the statute, majority should have found incest
3. Dissent says no relation btw Drugging People statute & this statute; statutes not
in pari materia
4. Dissent takes a purposivist approach b/c purpose of statute is to protect children
& the only way to do this is by interpreting sexual intercourse broadly; also gives
an absurdity argument (re: father & son)
viii. Legislature subsequently made a change to include all related acts
1. Dissent was correct that purpose was to protect children
2. Majority was correct; forced the legislature to do what should have done

K In pari materia: you cannot look at words in isolation

xii. Problem 7-2

1. Babbitt v. Sweet Home Chapter Commun., 515 U.S. 687 (1995)
a. Facts: Respondents are small landowners, logging companies, & families dependant on the
forest products industries in the Pacific Northwest & in the Southeast, & organizations that
represent their interests; respondents brought the action to challenge the Secretary’s
regulation defining harm (particularly including habitat modification & degradation in the
definition)
b. Issue: Whether the Secretary of the Interior exceeded his authority by promulgating a
regulation pursuant to the Endangered Species Act which interprets the word “take” (via
defining “harm”) in the statute too broadly.
c. Statutory language at issue: “harm”
d. Rule: No. The Secretary’s interpretation of “harm” to include the indirectly injuring
endangered animals through habitat modification permissibly interprets “harm” to have “a
character of its own not to be submerged by its association”
e. Canons used by Court of Appeals: noscitur a sociis
f. Canons used by Majority: plain meaning, rule against surplusage
g. Canons used by Dissent: plain meaning, ejusdem generis/noscitur a sociis
xiii. Problem 7-3
1. Language at issue: person
2. Issue: Whether T.J. is a person as defined in the statute?
3. T.J. would want the court to find the term ambiguous; the state would not want the court to find
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the term ambiguous.

a. Why? T.J. wants the court to look at the other statute.
b. State wants person to mean a human being (to include juveniles)
4. ARGUMENT: The plain meaning of “person” is ambiguous if you are representing T.J.
a. How? Person can mean “any person” or “any person over age 16”
5. T.J.’s strongest argument would be based on absurdity b/c
a. Purpose of juvenile justice system promotes rehabilitation & if allowed to penalize, then
against his purpose
b. Absurd b/c doesn’t have a limit
c. Penalty for two juveniles is reform school v. penalty for lewd & lascivious conduct is 1-5 –
penalizing one substantially more than another
6. Prosecutors: Purpose is sending both off to reform school b/c both consented as opposed to lewd
& lascivious conduct where one doesn’t consent. T.J. loses!
7. See handout

f. Titles
g. The Role of Components Chapter 7
i. Bill: the paperwork that contains a proposed statute.
1. Engrossed—passed by congress
2. Enrolled—signed by president
ii. Act: the paperwork that contains a proposed statute that has been enacted.
iii. Statutes at Large: Statutes enacted chronologically.
iv. Code: Arranged by topic.
v. Purview of the bill: the words of the bill that follow the enacting clause become law and
provide the substance of the statute.
vi. Enacting Clause: Are required. The enacting clause itself does not become law; only
language following it. Usually comes after the long title. “Be it enacted by the Senate and
House…”
vii. Some of the language that is not officially enacted law can affect interpretation, while some
of the language that is enacted into law, meaning it is within the purview of the statute, is not
relevant to interpretation. Moreover, even when it is relevant, it is given little weight.
viii. A formalistic approach to statutory interpretation would suggest that nothing before the
enacting clause should be considered for statutory interpretation, while everything after it
should be considered. After all, language that precedes the enacting clause is not “enacted”
nor intended to have the force of law. That’s not the approach courts take, though.
ix. Long Title: Immediately following the words “A BILL” is the long title. Typically begins
with the words “to” or “relating to” and then expresses the general purpose of the bill. The
title indentifies the subject of the act.
1. Identifies where the bill’s substantive provisions will be codified. So, in addition to
giving a general description of the act, the long titles can also identify statutes that will be
affected by the bill’s enactment, including whether it will be a new statute, or if not,
which existing statutes it will amend or repeal.
x. Short Title: Included after enacting clause. Typically states, “This act may be cited as the
___ Act of ____.”
xi. Role of Long and Short Titles:
1. Most judges refuse to rely on either the long or short title unless necessary to resolve
ambiguous statutory language. Titles are of use only when they shed light on some
ambiguous words or phrase. They are but tools available for the resolution of a doubt.
But they cannot undo or limit that which the text makes plain. The title cannot control
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the plain words of the statute.

xii. Holy Trinity Church started the whole mess of whether to rely on legislative history
1. Facts – P church contracted with pastor in England to come to US for employment at its
church; P was charged & convicted for violating federal law, which prevented employer
from contracting with foreign laborers to come to US for employment; P argued that law
did not apply to churches
2. Issue – whether statute covered this situation?
3. Holding – No; the term “laborer” in statute applied only to cheap unskilled labor & not to
professional occupations such as ministers & pastors; it would be absurd for law to apply
here; title of act shows intent of congress was simply to stay influx of cheap unskilled
labor; P did not violate federal law
4. Rule – Titles of statutes may be used to interpret meaning if meaning is ambiguous;
a thing may be within letter of statute and yet not within spirit of statute
5. Reason – this case looks at long title, which was before enacting clause; statute said it
was unlawful for anyone to assist in importing aliens into US under K made prior to
importation to perform labor in US; statute was not ambiguous & on its face it applied,
but court said it did not apply because that was not legislature’s intent, because title
suggested it was not meant to apply here; title overcame clear statutory language;
common understanding of “laborer” does not include preachers
6. Seems that court was trying to avoid plain meaning of statute by giving great effect
to title because court admitted that language was clear
7. Could argue that “to perform labor” in statute means that, because labor is equivalent of
work in ordinary usage, & because professionals work, professionals perform labor
xiii. Argument: Holy Trinity demonstrates that courts are not competent to analyze legislative
materials & should not use them to vary meaning of text or otherwise discern meaning
xiv. Argument: the meaning of text cannot be discerned w/o considering the legislative process:
Legislators assume that lawyers will argue about the meaning of text, & so “try to leave as
little meaning to context as possible, at time creating word usages that have no parallel in
ordinary conversation”
xv. Originally, took from England the idea that legislative history should rarely ever be used
1. Initially, U.S. followed England
2. Changed w/ Holy Trinity, which opened the floodgates (1940s)
xvi. In 1989, Scalia came to SCT & moved it more towards the left (textualist) on continuum

Caminetti v. US (1917)

Facts: 3 cases put in single opinion. P’s convicted for violating the White Slave Traffic Act. Basically,
they took whores across state lines and were punished for conduct involving an immoral purpose.
Issue:
Language at Issue: any other immoral purpose
D’s interpretation: Just having an affair. Not engaged in prostitution or White slave traffic.
Commercialized vice or traffic of women for gain was not in the purview of the statute.
P’s interpretation: Any immoral purpose
Court Interpretation: There is no ambiguity in the terms of the act. It is specifically an offense to
knowingly transport or cause to be transported in interstate commerce, any woman for the purpose of
prostitution or debauchery or for any other immoral purpose.
• If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the

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courts to enter speculative fields in search of a different meaning.

Dissent: “Immoral” is very ambiguous. “White Slave Act” means commercialized vice. Everybody
knows the difference between occasional immoralities of men and women and the systematized and
mercenary immorality of “white slave traffic”. The Short title provides the statute’s purpose.

Preambles, Purpose Clauses, and Legislative Findings

The Role of Preambles

History of Preambles in America: The preamble cannot control the enacting part of the statute in cases
where the enacting part is expressed in clear, unambiguous language.

• Even though preambles are not controlling, legislatures continue to use them to determine the
reasons for adopting a statute. Preambles identify the policy that led the legislature to enact the
law.
• Preambles, purpose clauses, and findings are all identified as preambles.
• True Preamble: Precedes enacting clause; identifies acts purpose
• Purpose clause: After enacting clause--identify the mischief, or problem, the legislature sought to
correct by enacting the statute.
• Findings clause: After enacting clause--state facts or motivations for the statute.
• Preambles cannot be used to enlarge or confer powers, nor control the words of the act. A
legislature cannot overrule established case law concerning a statute by merely passing a preamble
without any corresponding change in the wording of the statute.
• The modern trend is to give little weight to the preamble regardless of whether it falls before or
after the enacting clause.

Bottomline: Preambles are relevant to interpretation because they often state considerations that led the
legislature to enact a statute. If you want to know why a statute exists, the bill’s preamble may be the place
to look.

Commonwealth v. Besch (Pa. 1996)

Facts: Appellant charge with violating PA Corrupt Organizations Statute (Pa. COA). Appellant had by
specific agreement with Douglas Woodward developed a business of distributing marijuana and cocaine.
The enterprise existed at the Appellant’s home as the central location for buying, packaging for resale and
sell.

Issue: Does enterprise come within the scope of Pa.COA?

Language at Issue: “enterprise”

Statute: To prevent criminals from using money, etc. to infiltrate businesses.

Commonwealth Arg.: The definition of enterprise does not restrict itself to only legitimate enterprises, but
also illegal enterprises.

Appellant’s Arg.: Enterprise only extends to legitimate enterprises—not drug enterprises. The statute was
enacted to punish individuals engaged in organized crime, not organized criminals.
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Court’s Interpretation: In construing the intent of the statute we need to look beyond its actual words.
The express intent was to prevent infiltration of legitimate businesses by organized crime. The statute was
enacted to punish persons engaged in organized crime not organized criminals. The appellant never tried to
“infiltrate” any business. (relies on Preamble)

Holding: Appellant’s organization existed for buying and selling drugs. Appellant was a member of the
organization and engaged in activity under Pa.COA, but not one piece of evidence connects the drug
enterprise with a legitimate business or any attempt to infiltrate a legitimate business.

Dissent: (Does not rely on Preamble)

Majority relies on Preamble language which only says stuff about legitimate businesses; however, the
language of the statute mentions both legitimate and illegitimate businesses. Should have relied on plain
language of the statute and not looked to the Preamble.
The court should have followed the statute’s interpretation that this statute was based on (the Federal RICO
statute). That would have nailed the appellant.

Problem 7-1 p. 210-11

IX. Legislative History

Using Legislative History
A Continuum

To Resolve To To Defeat
the meaning Confirm the the Meaning of
of Ambiguous & Meaning of Clear Text
Absurd Text Clear Text

Never Always

a. Questions
i. Assuming a court will review legislative history during interpretation, the most authoritative
is . . . conference committee report
1. Committee report: rpt generated by the committee before gets sent to the committee of
the whole
2. Floor debate: least relevant
3. Conference committee report: bicameral; comes after bill has been passed by both
chambers & are debating changes; two versions are merged into one; ultimately the bill is
revised & a conference committee report is generated
a. Sometimes there may not be a conference committee report (b/c both chambers may
approve one version – not very common)
b. In that case, the committee report would be most persuasive
4. Statement from the sponsor
ii. At what point along continuum should a court use legis history? This is a matter of opinion.
1. Never (0)
2. To determine the meaning of ambiguous/absurd text (22)

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3. To confirm the meaning of clear text (5)

4. To defeat the meaning of clear text (0)
5. Always regardless of the clarity of the text (5)

b. Introduction
i. Courts generally give legislative history less weight today than in prior years
1. A true intentionalist will rely on legislative history even when text is clear
2. A purposivist will do so to the extent it illuminates legislative purpose
ii. Legislative history develops in stages
1. Comments made during committee hearings
2. Comments made during debate in the “committee of the whole”
3. Comments made during final passage
4. Legislators even insert statements into the legislative record that were not
contemporaneously considered or even heard by the legislature
5. **None of these comments are approved by the legislative branch or presented to the
executive for approval**
iii. Legislative history is not law
1. Only statutory text is approved by the legislature & presented to the exec for signature
2. Many committee reports & other docs are drafted by staff members (& so, perhaps,
reflect the intent of the staff members who drafted them, not the legislature)
iv. Does it make sense to give more weight to common law rules of interpretation that the
legislature may be wholly unaware of (like expressio unius) & that may actually conflict w/
the way lawyers are trained to write (like the rule against surplusage), rather than statements
contained in a conference committee report?

c. Legislative History Hierarchy:

i. Conference committee reports (at top—most useful)
ii. Committee reports
1. Committee prints—only available to insiders, not the public—for internal use
iii. Earlier drafts or versions of bills and rejected amendments
iv. Drafter’s commentary
v. Statements, remarks, and debates that take place in either the Committee of the Whole or on
the floor of either chamber
vi. Comments made by those opposed to legislation
vii. Executive signing statements

d. Legislative History: A Continuum

i. There is a continuum of circumstances in which legislative history might be used
ii. The text is the focus for all of the approaches, including intentionalists
1. Some say the text s/b read in light of the legislative history, b/c the text results from & so
only has meaning viewed in that context: “statutes first gain meaning w/in the context
that gave them life: the give & take of the legislative process,” & so as a result, “we must
read it w/in the context of the legislative process, which is reflected in the statute’s
legislative history”
iii. Continuum of Legislative History. Question: At what point, if any, along the continuum
does the optional or required use of legislative history become unsupportable?

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- Turn clear text

ambiguous

├ │ │ │ │ ┤
Never Used Sometimes Used Always Used
- most restricted end
-few justices - used to confirm meaning of clear text -to defeat clear text
- whether text is
ambiguous or not
- Scalia - Give as much weight as text
- Intentionalists & Purposivists
-unrestricted end

- Absurd/ambiguous

- Textualists would be btw Never & Sometimes

iv. In re Sinclair, 870 F.2d 1340 (7th Cir. 1989)

1. Facts: Sinclair’s had a family farm & had to file bankruptcy. Filed under Chapter 11 of the
Bankruptcy Act of 1978. Congress added Chapter 12 in Oct of 1986, which provided benefits to
farmers. The Sinclair’s wanted to convert their case from 11 to 12. (Bankruptcy judge declined;
district court affirmed.)
2. Issue: Whether the Sinclair’s can convert from Chapter 11 to Chapter 12?
3. Language at Issue: “shall not apply”
4. Rule: No. Even though the Conference Committee report conflicts w/ the statute, this Court
says the statutory language prevails b/c “Congress has done nothing to change § 302(c)(1),
implying that the statement in the committee report may have been the error.” “What came out of
the conference, was what was voted for by House & Senate, what was signed by the President,
says that pending Chapter 11 cases may not be converted.”
5. Analysis
a. Committee reports help courts understand the law, but this report contradicts rather
than explains the text. So the statute must prevail.
b. Note: sometimes “shall” can be interpreted as “may” & vice versa, but the debtors didn’t
make this argument in this case
c. Sinclair’s, on the continuum, want to defeat the meaning of clear text
i. The Sinclair’s want to be on the far right of the continuum
d. This court (Sinclair court) will look at legislative history
i. To decode language
ii. When text is ambiguous
e. This court takes classic textual approach to legislative history; they are at
“absurd/ambiguous” on the continuum
i. Where did the court stand on the continuum? The far, far left (why: the judge
writing the opinion was closely in line with the Scalia)
1. The majority is concerned with the use of Legislative history because
a. Committee reports are not approved by Congress and is not signed by
the president (they are not law)
b. You can obscure reports by pointing out little snippets of the reports
c. Written by staff members or lobbyists
d. Legislatures can potentially manipulate the floor debates

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e. Can be used as a crutch  sloppy drafting (the legislature would not

have an initiative to write good clear legislation if they know that their
debates will be used to ascertain what they were trying to accomplish)
f. Leg. History is not readily assessable (and not reasonable to think that
someone will look through such history)
g. Financial problems with paying an attorney to look through the history
f. American Trucking: “When aid to the construction of the meaning of words, as used in the
statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however
clear the words may appear on ‘superficial examination.’”
g. “the search is not for the contents of the authors’ heads but for the rules of language they
used.” (p. 223.)
h. Remember: staff members write legislative history
i. Caminetti: “To treat the text as conclusive evidence of law is to treat it as law – which under
the constitutional structure it is.” The plain meaning rule of this case rests on “constitutional
allocation of powers.”
j. “Legislative history . . . may not be used to show an “intent” at variance w/ the meaning of
the text.”
k. §302(c)(1) has an ascertainable meaning, a meaning not absurd or inconsistent w/ the
structure of remaining provisions. It says that Chapter 11 cases pending on the date the
law went into force may not be converted to 12. (emphasis added)
l. Although the court says that the text is clear and there is no need to look at legislative
history, and yet the court goes ahead and looks at the history anyway.
i. Lesson to learn: look at what a court does as well as what it says
v. In re Idalski, 123 B.R. 222 (Bankr. E.D. Mich. 1991)
1. Facts: Debtor voluntarily paid $ into employee retirement system. $ was paid back to her after
she filed for bankruptcy & left her employment. The trustee sought the $ as part of the
bankruptcy estate.
a. exception in the bankruptcy code that excludes spend thrift trusts
i. Why? b/c the people who will have such trusts are rich and Congress has an
interest in keeping rich people’s $ in their family
2. Issue: Whether the retirement (ERISA) $ is part of the bankruptcy estate?
3. Language at Issue: “applicable nonbankruptcy law”
4. Rule: No. Nothing in the legislative history clearly indicates that the reference to applicable
nonbankruptcy law contained in § 541(c)(2) does not include restrictions which are enforceable
under applicable federal law.”
5. Analysis
a. Despite statute’s plain language, # of cases had concluded that Congress didn’t mean to
include ERISA in “applicable nonbankruptcy law” based on legislative history
b. Bankruptcy trustee wants to defeat the meaning of clear text
c. Court falls in the middle; it confirms the clear text
d. Plain meaning rule “s/b applied where the statutory construction urged by a party is so
inherently improbable that it defies common sense.” (p. 229)
e. Plain meaning rule should operate in a manner analogous to parol evidence rule applicable to
private Ks. The intent of the legislature, as established by review of extra-statutory materials,
should accordingly be “relevant to the solution of the case only if consistent w/ the ‘meaning’
which may reasonably be attached to the words used” in the statute.
f. Legislative history has the potential to give meaning, and although it may be an
incorrect application to defeat clear text, most courts feel that its appropriate to use
legislative history in order to confirm clear text or to resolve an ambiguity and/or
absurdity.

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vi. Comparison of Cases

1. Sinclair court
a. Says that legislative history may not be used to show an “intent” at variance w/ the meaning
of the text
b. If plain meaning is absurd when read w/ other provisions, then might consider
2. Idalski court
a. Will use legislative history if “statutory construction urged by a party is so inherently
improbable that it defies common sense”
b. In that case, use history where it is consistent w/ the meaning which may reasonably be
attached to the words used in the statute
vii. Arguments opposing the use of legislative history
1. Violates Constitution
2. Isn’t relevant
3. Isn’t readily available
4. It is Malleable
5. Encourages sloppy legislation
viii. Problem 8-1
1. D.A.: Text is clear – no reason to go to legislative history
a. History could help this position: this was not just any assistant DA, it was the senior most
DA taking the place of the DA in his absence.
2. Defense
a. The actual code states that the court may look at legislative history regardless of a finding of
an ambiguity
b. Look to the State statutory directive, which directs to look at the purpose & legislative history
c. Have statements from the floor debate that meant to be limited to D.A.
3. D.A.’s response
a. ARGUMENT: Attack the validity of the floor debates (one legislator’s intent does not
equate to the intent of the whole); however, no conference committee or committee report
here
b. The first assistant here signed – not just anyone; like an arm of the D.A.; extension
4. Defense
a. Purpose: purpose is to prevent abuse by fire-breathing prosecutors
b. Generally, prosecutors cannot appeal cases; legislature wanted this extension of appeal to
apply only in limited situations
c. The more people who can sign, the more appeals we will have, which will frustrate the
purpose
5. D.A.’s response
a. Still only have a limited right of appeal
b. Prosecutor was out of town
6. What if judge doesn’t like the statute? Give reasons why would want to look at legislative
history.
a. Staff writes the committee reports; may have their own agenda
b. Legislative history is not law
c. Prevent judges from giving their interpretations of the law
d. If LH conflicts w/ the text itself, then text governs
e. If using LH violates the constitution, then should never use it! No, use it only when
ambiguous/absurd.
f. Problem: ambiguous/absurd are the hardest cases. Going to use the least reliable source
(LH) to clarify? Maybe just use as a tool. A rule saying that not going to use legislative
history may not help create clear laws.

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When Legislative History Conflicts

United Steelworkers v. Weber (1979)

Facts: 1974 collective bargaining agreement requiring no less than one minority applicant be admitted to
a training program for every non-minority applicant until the percentage of blacks in craft positions equaled
the percentage of blacks in the local work force. Eligibility to the program was determined on the basis of
plant seniority, with black and white applicants to be selected on the basis of their relative seniority, within
their racial group. Weber, P, was not selected for the program but two black applicants selected had less
seniority than Weber.

Procedure: Weber sued alleging that the use of the 50% minority admission quota to fill vacancies violated
Title VII, which prohibits racial discrimination in employment. District Court and COA agreed. USSC
reversed.

Issue: Whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide
affirmative action plans that accord racial preferences?

Language at Issue: discriminate

P’s Argument: Rests upon literal interpretation of Section 703(a) and (d) of the Act. Congress intended
to prohibit all race-conscious affirmative action plans. Legislative Intent.

Court’s Interpretation: “A familiar rule that a thing may be within the letter of the statute and yet not
within the statute, because not within its spirit nor within the intention of its makers.” The prohibition
against racial discrimination in Sections 703(a) and (d) must be read against the background of the
legislative history and historical context from which the Act arose. To forbid all race conscious decisions
would bring about an end completely at variance with the purpose of the statute and must be rejected.

Analysis:
• Congress feared the integration of blacks into mainstream society could not be achieved unless
trends were reversed.
• From a House Report—it is shown Congress did not intend to wholly prohibit private and voluntary
affirmative action efforts
• Language: “Nothing contained in this title shall be interpreted to require any employer…” The
section was designed to prevent Section 703 from being interpreted in such a way as to lead to undue
Federal Government interference with private businesses because of some Federal employee’s ideas
about racial balance or racial imbalance.”
o In view of this legislative history and in view of Congress’ desire to avoid undue federal
regulation of private business, use of the word “require” rather than the phrase “require or
permit” fortifies the conclusion that Congress did not intend to limit traditional business
freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action.

Holding: Reversed. Title VII’s prohibition against racial discrimination does not condemn all private,
voluntary, race-conscious affirmative action plans.

Dissent:
• Plain language of Title VII quite simply prohibits racially discriminatory admission quotas

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• “Our task in this case, like any other case involving the construction of a statute, is to give effect to
the intent of Congress. To divine that intent, we traditionally look first to the words of the statute
and, if they are unclear, then to the statute’s legislative history.”
• Majority says “spirit” of the Act is to provide open employment opportunities for Negroes.
However, the true purpose of the Act was to prohibit employment discrimination against Negroes.
• Legislative history is clear—no racial discrimination in employment is permissible under Title VII,
not even preferential treatment of minorities to correct racial imbalance.
• Minority Report and floor debate show the purpose of the Act is to eliminate all discrimination.
• Senator Humphrey states on the House floor that “nothing in the bill would permit any official or
court to require any employer or labor union to give preferential treatment to any minority group.”
• Senator Kuchel stated, “The bill now before us…is color-blind.”
• Look at Substitute Bill: no preferential treatment should be permitted was in this bill too
• “It cannot be doubted that the proponents of Title VII understood the meaning of their words, for
seldom has legislation been debated with greater consciousness of the need for ‘legislative history,’
or with greater care in making thereof, to guide the courts in interpreting and applying the law.”

X. Legislative Silence (Subsequent Legislative History)—The “Dog Does Not Bark” Canon
a. Questions
i. Intentionalists/Purposivist (today) generally use legislative history . . . to confirm the
meaning of a clear statute
ii. The most common legislative response to judicial interpretation
1. Nothing - CORRECT
2. Attempted amendment of the statute
3. Amendment of the statute at issue
iii. Courts should find legislative acquiescence whenever the legislature fails to amend a statue
after a judicial interpretation
1. True, courts should generally find legislative acquiescence from silence
2. True, but only if the court is sure that the legislature was aware of the interpretation
3. False, courts should only rarely find legislative acquiescence from silence – CORRECT
4. False, court almost never find legislative acquiescence from silence
iv. The legislative acquiescence doctrine rests on the notion that legislatures are usually silent
after judicial interpretations of statutes b/c
1. They believe it is the courts’ function to interpret statutes
2. The have more pressing issues to address
3. They are unaware of the decision
4. They agree w/ the interpretation - CORRECT
b. Introduction
i. Silence is the most common legislative reaction to judicial interpretation of a statute
1. Arguably, legislative silence shows acquiescence (Passive assent or agreement)
2. The assumption that silence means acquiescence encourages those interested in a
particular issue (legislators, lobbyists, & others) to
a. Follow judicial interpretations, &
b. See, legislative correction of unintended or incorrect interpretations
3. Silence can also mean
a. That the legislature is content w/ the interpretation
b. The legislature is busy w/ more pressing legislation
c. The legislature may be aware of the interpretation, believe it wrong, but be unable to
reach a consensus what the “correction” should be
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d. The legislature is unaware of the interpretation (most likely)

ii. Why not correct arguably incorrect statutes that a court has invited the legislature to correct?
1. Legislature may not be aware
2. Getting a statute enacted is much easier than getting it revised
3. Political considerations may work to forbid legislative corrective action
iii. Safe assumption: Congressional inaction means that Congress does not intend to act at all
iv. However, Congressional inaction is perhaps the weakest of all tools for ascertaining
legislative intent & courts are loath to presume congressional endorsement unless the issue
plainly has been the subjection of congressional inaction
c. Post-Interpretation Legislative Inaction (silence means something)
i. General Rule: subsequent legislative silence is irrelevant for statutory interpretation
ii. Presumptions Behind the Exception
1. Legislature is aware of the judicial opinion, &
2. Legislature approves the judicial interpretation
iii. Reality
1. Legislature rarely aware of all judicial opinions (Bocchino)
2. Silence rarely equals approval
a. Usually means an inability to act
i. Flood case: Congress tried to amend 50 times  is this approval?
1. What to know for test: a court may give weight to legislative history,
especially if it allows them to make a decision they want, or to support
their position.
3. All the concerns of legislative history & then some
iv. The meaning courts ascribe to legislative silence implicates both
1. The principle of separation of powers &
a. If a court overrules the initial decision interpreting a statute, then it is in essence
rejecting a legislative act
b. Ascribing meaning to silence ignores the fact that silence lacks all the supporting
evidences of legislation enacted pursuant to prescribed procedures, including
i. Reduction of bills to writing
ii. Committee reports
iii. Debates
iv. Reduction to final written form
v. Voting records
vi. Executive approval
2. The doctrine of stare decisis
a. Stare decisis requires that prior judicial decisions should not be overruled absent
compelling reasons
b. Stare decisis
i. Fosters predictability
ii. Furthers the goal of treating like-cases in the same way
iii. Reduces litigation & other social costs
c. While courts generally should overrule prior decisions that are clearly wrong, it
makes a difference when
i. The prior decision interpreted a statute, &
ii. Congress remained silent despite knowing the erroneous interpretation
d. Generally, courts should apply a “super strong” stare decisis rule: Absent compelling
evidence that the initial interpretation was wrong, courts are particularly reluctant to

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overrule it.
v. ARGUMENT: b/c a court can never be sure why a legislature has failed to act, silence is
inherently ambiguous, & so relying on it to mean only that the legislature agreed w/ the
interpretation is a choice of one of two equally possible interpretations
vi. Exceptions (Flood & Kuhn)
1. Basis for an exception
a. Separation of powers: if Congress by silence agrees w/ the court’s interpretation,
then Congress s/b the one to change it
b. Stare Decisis: courts are reluctant to overturn wrong decisions & absent compelling
evidence in statutory interpretation cases, courts don’t generally do so
2. When to find an exception
a. The Court is sure that legislature was aware of the opinion
b. Repeated attempts to legislatively overrule the judicial opinion fail
c. The topic is one of extreme importance to legislature (like anti-trust laws & the
commerce clause)
d. The Court repeatedly invites the legislature to act
e. The entity being regulated acts in reliance on the opinion
vii. Flood v. Kuhn, 407 U.S. 258 (1972)
1. Facts: A baseball trader who was traded from one team to another w/o being consulted
complained to the Commissioner of Baseball demanding he be made a free agent & given the
power to make his own Ks. When his request was denied, he sued, claiming a violation of federal
anti-trust laws.
a. Trial court: judgment for Δs
b. Appellate court: affirmed
2. Issue: Whether baseball is an interstate trade or commerce under the antirust laws
3. Statutory language at issue: “interstate trade or commerce”
4. Rule: SCT says no, based on Federal Baseball Club (1922) & Toolson (1953)
5. Analysis
a. Court actually says that professional baseball is a business & it is engaged in IC
b. Four reasons for court’s affirmance of prior cases
i. Congressional awareness for 3 decades of the Court’s ruling in Federal Baseball (in
which the court suggested to Congress that baseball is commerce & falls under the
guise of anti-trust legislation, like other sports)
ii. The fact that baseball was left alone to develop for that period upon the
understanding that the reserve system was not subject to existing federal antitrust
laws
iii. A reluctance to overrule Federal Baseball w/ consequent retroactive effect
iv. A professed desire that any needed remedy be provided by legislation rather than by
court decree
c. Prior rulings by the SC holding that baseball was an exception (other sports were
considered interstate commerce) and was an intrastate activity, not interstate
i. Stare decisis: the majority leans heavily upon this argument
1. Why is this argument lacking?
a. b/c the Court can overturn a prior wrong interpretation
2. A court is less likely to overturn a prior ruling on a statute, than on the
common law
ii. Separation of powers:
1. By Congress trying to amend the law (and failing) why should the Court
make law by overruling their prior decision
d. Since that time, 50 bills have been introduced in Congress re: the applicability of antitrust

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laws to baseball: a few passed one house or the other, but never enacted
e. Court says baseball is an exception & anomaly, but b/c it has been the law for half a century,
it is entitled to the benefit of stare decisis
f. Standard Majority would use to overrule Stare Decisis: “Super Strong”
i. A court is less likely to overturn a prior ruling on a statute (there is an even greater
need for consistency in the interpretation of statutes/laws)
1. if the courts have interpreted a statute wrong, then it is the job and responsibility
of the legislature to revamp the statute
g. There is a presumption that the legislature knows of the Court’s decision (in this case
this is true, but sometimes legislative silence is not validation of a Court’s actions,
merely it is indicative that the Court is unaware
h. Problems with the legislative silence presumption:
i. Presumes legislative awareness
ii. Presumes legislative agreement
i. Dissent
i. Congress has acquiesced in prior decisions
ii. The court has been inconsistent by isolating baseball
iii. Errors that deny substantial federal rights s/b overruled
iv. Can alleviate concerns by making the statute prospective only
v. Standard dissent would use for overruling a case involving statutory interpretation:
When errors deny substantial federal rights.
j. Definition by the courts of IC has changed since the anti-trust statute was enacted
i. Textualists would agree w/ the dissent
ii. What should we do when the statute is clear?
viii. Bocchino v. Nationwide Mut. Fire Ins. Co., 716 A.2d 883 (Conn. 1998)
1. Facts: π had a fire insurance policy, requiring that any suit on the policy be brought w/in one year
of any covered loss; a fire burned π’s house & π sued w/in one year; b/c of computer error the
district court dismissed the suit; π re-filed suit w/in one year of the dismissal, but more than one
year after the fire; suit is to recover proceeds of ins policy
a. Trial court: judgment for Δ b/c
i. Suit not brought w/in one year, pursuant to K
ii. The accidental failure of suit statute (which tolls the S/L for a brief period of time)
did not operate to save π’s action
b. Π’s argument
i. § 52-592 (which would allow π to commence a new action any time w/in one year
after the determination of the original action) applies
ii. Wants the court to overrule existing case law directing that the statutory section does
not apply to policy provisions of π’s insurance K
1. P wants the interpretation of “time limited by law” to be interpreted broadly
(limited by any law including the one that requires a time limitation language to
be used in insurance Ks)
a. D wanted the language to be interpreted narrowly (only SoL limitations 
not contractual limitations as presented here)
2. Issue: Whether the saving clause applies to defeat the one-year limit of π’s policy?
3. Statutory Language at Issue: “time limited by law”
a. This seems ambiguous
i. Could mean a time prescribed in a statute
ii. Could mean the time prescribed in a contract
b. But resolved by Chichester
i. Π wants the court to overrule Chichester
ii. But majority won’t overrule b/c say that legislative silence is acquiescence

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iii. Don’t know that legislature was even aware of this 1902 case
1. our presumption is that the legislature is aware of all case law
a. unlike the Flood case, there was no bills presented after Chichester
b. there is no evidence that the legislature was even aware of the case
4. Rule: No, based on
a. Chichester
i. π previously brought an action on a fire insurance policy w/in the one year provision,
but the action was nonsuited after π introduced evidence; appeal was dismissed; π
immediately commenced another action
ii. This court affirmed: “the provision in the policy sued upon requiring an action to be
brought w/in 12 months after the fire does not operate as a S/L. It is a part of the K;
the rights of the parties flow from the K & must be governed by the rules of law
applicable to Ks. Such a provision in a K of insurance is valid & binding upon the
parties.”
iii. Court specifically rejected the claimed applicability of the accidental failure of suit
statute & argument that it applied b/c the fire ins policy which contained the 1 year
suit provision, was a std policy mandated by ins statutes
iv. The statute is an amendment to the S/L & does not affect this K
b. Vincent: adhered to Chichester, does not apply to save a second action on an insurance
policy brought beyond the applicable contractual limitation periods but w/in one year of a
timely, but unsuccessful, prior action on the same loss
c. Monteiro: court cited Chichester for the proposition that a condition requiring suit to be
brought w/in one year does not operate as a S/L.
5. Analysis
a. S/b especially careful overturning cases b/c of stare decisis
b. Legislature’s failure to take corrective action as manifesting its acquiescence
c. Furthermore, need to show proper respect for the separation of powers & exercise prudence
& respect re: overruling of cases that involve the construction of a statute
d. Dissent
i. Cannot compare this case to prior precedent
1. Chichester: π failed to make out a prima facie case as a result of his failure to
prove “immediate notice” to the Δ after the fire, which, in addition to a
contractual limitation period of one year for instituting an action, was a condition
of the ins policy & an essential element of the case
2. Monteiro: commenced action against Δ more than one year after he had suffered
the loss
ii. Stare Decisis doesn’t really apply b/c this P had no choice in the failure of the case
(the court made an computer error which caused the p’s claim to fail, and in
Chichester the P voluntarily dismissed his case)
iii. The value of adhering to precedent is not an end in & of itself . . . if the precedent
reflects substantive injustice. Consistency must also serve a justice related end.
iv. Result is manifestly unjust  this P did what he was suppose to do and through no
fault/action of his own the first attempt of legal action failed (he’s being punished for
the court’s failure/lapse)
v. Dissent believed that prior judicial interpretations s/b overruled if erroneous w/o
regard to whether the common law or a statue was in issue
e. Most ppl (especially Jellum) don’t give much merit to the legislative aquesience (silence)
ix. Problem 9-1
a. Defense:
i. How motivated was legislature to act? It was very unlikely that another issue like
this was to come up again
1. there was not much momentum to get such a bill passed, so the silence should not

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be given too much weight

ii. Stare Decisis would not really be binding b/c the original court was divided in its
decision
b. Prosecution:
i. The legislature was silent and that silence should be indicative of approval of the
original decision
ii. Strict adherence to stare decisis
XI. Finding and Using Purpose
a. How do you find purpose? (First place to look for purpose is the plain language/text)
i. Heydon’s Case (Eng. 1584)
1. “for the sure and true interpretation of all statutes … four things are to be discerned and
considered:
a. 1st What was the common law before the making of the Act?
b. 2nd What was the mischief and defect for which the common law did not provide?
c. 3rd What remedy the Parliament hath resolved and appointed to cure the disease of
the commonwealth?
d. 4th The true reason of the remedy.
2. The Mischief Rule:
1. identify the law as it existed prior to the enactment of the statute
2. identify the “mischief” the legislature had sought to remedy by enacting
the statute
3. interpret the statute in a way that best “suppresses that mischief” and
“advance[s] the remedy
b. Questions
i. Which statutory interpretation approach is most likely to reject the notion that subsequent
legislative silence is acquiescence?
1. Textualism – CORRECT
2. Sliding Scale
3. Intentionalism
4. Purposivism
ii. The best place to find the statutory purpose is:
1. A purpose clause
a. Not every statute will have one
b. Not all adopted: some go into the statute & some come before the bill (not really
codified); doesn’t really matter, court will look at them the same way
2. Text
3. Legislative history
4. Social & legal context
a. Social context
i. Where would this be relevant?
ii. Patriot Act: enacted in response to 9/11
b. Legal context
i. Legislature is responding
ii. Legislature’s response to baseball
5. A, B & C only
6. All of the above – CORRECT
c. Finding Purpose
i. A purposivist would say that the text s/b read in light of the purpose, & so purpose must be
discerned first

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1. Go further than textualists in emphasizing purpose

2. Do not believe that meaning can be discerned w/o understanding purpose
ii. A strict textualist might disagree & might look to the purpose only if the text is ambiguous or
vague, most textualists recognize that language has meaning only in context, & part of
context is purpose
iii. Statutes often have more than one purpose. Which one controls?
1. Not that long ago, “in addition to being fewer in number [statutes] were typically w/ a
greater degree of generality & thus were more amenable to being interpreted in light of a
general purpose.”
2. “The work of the . . . judiciary is more likely to be seen in political terms today” than just
a few years ago.
iv. Statutory Purpose v. Legislative Intent
1. Purpose: the overall aim or goal of the statute; the mischief to be corrected
2. Intent: the legislative intent as to the specific issue before the court, what would the
legislature have intended as to that issue
3. Good Example: Church of Scientology v. U.S., 612 F.2d 417 (p. 298)
a. Majority looks for purpose
b. Dissent looks for intent
v. Where to find purpose
1. Text
2. Purpose clause/preamble
3. Social context
4. Legislative history, &
5. Legal context
vi. Be aware that sometime purposes conflict
1. The statute itself has more than one purpose
2. Other statutes’ purposes conflict (Off Track Betting)
vii. Kentucky Off-Track Betting, Inc. v. McBurney, 993 S.W.2d 946 (Ky. 1999)
1. Facts: McBurney placed several horse-racing bets via KOTB (who simulcast the horse racing) &
took bets. McBurney became grossly indebted to KOTB & wrote personal checks (that were of
no value) to indicate his willingness to make good on his debt, but asked they not be cashed.
KOTB requested McBurney execute a promissory note, which McBurney executed. McBurney
paid 12 installments, totaling $84,000, then defaulted. KOTB filed suit to recover the balance.
2. Issue: Whether McBurney has to pay the $?
3. Statutory Language at Issue: “lent or advanced . . . is void” (at the end)
a. Outline the Statute
i. Every K, conveyance, transfer or assurance
1. for the consideration, (in whole or in part),
a. of money, property or other thing
i. won, lost or bet in any game, sport, pastime or wager,
2. for the consideration
a. of money, property or other thing
i. lent or advanced for the purpose of gaming, or
ii. lent or advanced at the time of any betting, gaming, or wagering
iii. to a person then actually engaged in betting, gaming, or wagering
ii. Is void
b. Eliminate Irrelevant Language: (parenthesis = added language)
i. Every contract
1. for the consideration, (and)
a. of money

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i. (actually) lost or bet

2. for the consideration
a. of money
i. lent or advanced for the purpose of gaming, or
ii. lent or advanced at the time of any betting, gaming, or wagering
iii. to a person then actually engaged in betting
ii. Is void
4. Rule: Yes.
5. Analysis
a. Much has happened since statute enacted: allow gambling, lottery, increase betting
b. All of these show that the legislature intended to encourage gambling
c. Therefore, the later statute impliedly repealed this statute
d. Majority: Rejects π’s argument that this statute was impliedly repealed. According to the
majority, the purpose was to prevent unacceptable social conduct. The purposes of the 1992
amendments were to acknowledge technical advances & benefit businesses. The majority
finds those purposes from the statutes.
e. Dissent: 1992 amendments implicitly repealed this statute. Looks at social context. We
have changed our view of gambling. No longer a terrible, horrible, thing. Says majority’s
argument is preposterous: legal to place a bet, legal to loan money, should be able to put
them together. But this is not necessarily preposterous.

d. Using Purpose in Interpretation: Using Purpose to Defeat the Plain Meaning

i. Probably the most controversial use of purpose

ii. Only purposivist judges are willing to admit to using purpose this way
iii. How to use purpose
1. To defeat plain meaning (Holy Trinity/Squirrel Case)
2. To confirm plain meaning
3. To resolve ambiguity/absurdity (Holy Trinity)
iv. Using Purpose Today: help the judge get there if it helps your case
v. Holy Trinity Church v. U.S., 143 U.S. 457 (1892)
1. “Holy Trinity Church is the case you always cite when the statutory text is hopelessly against
you.”
a. “any … corporation in any manner whatsoever, to prepay the transportation, or in any
way assist or encourage the importation or migration, of any alien or aliens, any
foreigners, into the United States … to perform labor or service of any kind.
b. Language of the statute is NOT ambiguous, but the result in this case is somewhat
absurd. (no one definition of absurd: continuum)
2. Where does Holy Trinity fit on the continuum? Defeat the meaning of clear text.
3. Facts: Holy Trinity entered into a K w/ Warren for Warren to come to the U.S. & perform
services as a rector. The U.S. claimed the K was forbidden by statute & an action was
commenced by the U.S. to recover the penalty prescribed by the Act.
a. Circuit Court held that the K was w/in the prohibition of the statute &, therefore, rendered
judgment for the U.S.
b. According to the majority, the language is not ambiguous; but conflicts w/ purpose
4. Issue: Whether the statute at issue precludes Warren from entering the U.S. to execute a K to
perform services as a rector.
5. Statutory Language at Issue: “labor”
a. Definition of “labor”
i. physical toil or bodily exertion, hard muscular effort directed to a useful end,
ii. intellectual exertion, mental effort
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b. What is the best argument?

i. Ambiguity: Which definition did the legislature want?
6. Rule: The evil which was intended to be remedied, the circumstances surrounding the appeal to
congress, the reports of the committee of each house, all concur in affirming the intent of
congress was simply to stay the influx of this cheap, unskilled labor.
7. Analysis
a. Majority finds the purpose from the legislative history: house & committee reports
b. Says committee is suggesting that the purpose is more narrow
c. Why didn’t the committee take care of the problem? They were worried they would run out
of time. Majority looking more at this intent from the general committee rpt.
d. Also looks to other cases & social context (influx of cheap labor at the time)
e. We are a Christian nation argument (shouldn’t be relevant at all)
f. Why was the court so quick to say the act was clear, but allow purpose to control?
i. ***REMEMBER: Back during the time this case was decided, purposivism was
most popular & courts always looked to the purpose.
1. Today the courts would make the legislature re-due the statute outside the
finding of ambiguity or absurdity
g. ***This case started the trend of looking at legislative history.***

ABSURDITY

Broad Narrow
Definition Definition

Plain meaning Plain meaning Plain meaning

conflicts with would lead to an leads to results
purpose/intent unjust/illogical that shocks the
(Holy Trinity result (Robins general moral
Church) Majority) or common
sense (Robins
Dissent)

vi. Ohio Division of Wildlife v. Clifton (squirrel case), 692 N.E.2d 253 (Ohio Mun. Ct. 1997)
1. Questions
a. This case was rightly decided: True (22), False (5)
b. For those of you who are textualists, what result in this cae?
i. Text controls: Δ is guilty, Angele, Daniel, Nicole dies
ii. Purpose controls: Δ is innocent, Angele, Daniel, Nicole lives
2. Facts: Δ Clifton discovered & rehabilitated a dying squirrel. Δ took the squirrel into her home,
where it became accustomed to its environment & thrived. Δ dressed the squirrel in a costume,
carried it in the 1997 Pumpkin Show parade & won first prize in the most unusual pet category.
This attracted the attention of a wildlife officer, who went to Δ’s home & attempted to take the
squirrel into custody. Δ applied for a wildlife license to retain the squirrel, but was denied & was
ordered to release the squirrel back into the wild
3. Issue: Whether the wildlife statute precludes Δ from retaining the creature w/o a permit.
4. Statutory Language at Issue: “fur-bearing animals”

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a. Clifton wanted fur-bearing animals not to include rescued squirrels as exhibited here
b. State wanted the language of the statue to include this squirrel
5. Rule: Yes, but absurd here, so allow Δ to keep animal.
6. Analysis
a. Δ was denied a license
i. When could a person get a license to keep such an animal?
1. when it is dead, stuffed and placed on a wall
b. Language really was clear: “fur-bearing animal”
c. Text is clear, but not the intended purpose
d. Court looked at the ultimate aim of the criminal justice system: justice. Justice would not be
served by killing the squirrel.
e. Purpose of this statute: to prevent animals that may contain diseases from getting in peoples’
homes & spreading disease.
f. Statute may not be absurd, but absurd as applied in this particular case b/c the purpose of the
statute (to protect the public from disease infected animals) is not applicable in these
circumstances
i. Generally, absurdity in application is not a good approach  there is a need for clear
rules (Textualists would not like the result in this case)
vii. Problem 10-2, Must a Segway be driven on the road?
1. Defendant argument:
a. Absurdity in application
i. It is more dangerous for a Segway to be driven on the road (both for the person riding
the Segway and for the motorist who have to maneuver around them on the road).
2. Prosecution argument
a. Clear text
b. Legislative history
i. Segway is similar to a moped (only you stand up)
c. Purpose
i. Safety of pedestrians: Segways pose a risk to pedestrians; the same kind of risk that
the legislature was trying to prevent.
XII. Conflicting Statutes
a. Last-enacted Rule: General v. Specific Statutes
1. When two statutes appear to conflict, a judge should attempt first to interpret them to avoid
finding actual conflict by using the canons of construction or other available interpretive
technique.
2. If a conflict is impossible to avoid, then…
a. specific statutes trump general ones
b. later-enacted statutes trump earlier ones
c. earlier-specific statutes trump a later-general statute
d. unless the context of the later-enacted statute indicates otherwise
3. Quick glance:
a. General v. Specific
b. Earlier v. Later
c. Earlier-Specific v. Later-General
i. Questions:
1. What is the general rule regarding conflicting statutes? Reconcile them first so
they do not conflict
2. Which controls, the later enacted or the earlier enacted statute? Later enacted
3. Which controls, the specific or the general statute? Specific
4. Which controls, the later/general or the earlier/specific statute? Earlier/specific;
unless the later enacted indicated otherwise

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5. What presumption are these rules based on? Congress was aware of the earlier
statute
d. Courts try very hard to avoid implied repeals (unless there is a legislative expression of
repeal).

ii. Williams v. Commonwealth 829 S.W.2d 942 (Ky. Ct. App. 1992)
1. Facts: Williams killed another with a shotgun; Williams was convicted of manslaughter and
received a five year prison sentence; the judge at sentencing declined to consider alternative
sentencing set forth in a 1990 statute, relying on a 1976 statute; Williams argues that the 1990
statute is more specific and therefore controlling.
2. Issue: Which statute controls?
3. Holding: The earlier statute controls because the intent of the legislature in enacting the 1990
statute was not to repeal earlier mandatory sentencing statutes.
4. Statutes at issue:
a. KRS 500.095 [enacted in 1990]
i. In every case in which a person pleads guilty or is convicted of a crime punishable
by imprisonment, the judge shall consider alternatives to a prison term.
b. KRS 533.060(1) [enacted in 1976]
i. When a person has been convicted of an offense … classified as a Class A, B, or C
felony of such an offense involved the use of a weapon … such a person shall not be
eligible for probation or conditional discharge.
5. Court’s analysis:
a. Both statutes are specific, but the earlier statute controls b/c it is most consistent with
legislative intent [KRS 533.070(1) was also enacted in 1990, and had the phrase “where
imprisonment is not required by statute” which the court held to be indicative that the
legislature was aware of some mandatory prison requirements which it did not wish to
repeal.]
6. Dissent:
a. There is a clear conflict between the statutes, and, where a conflict exists, the latter statute
controls.
7. Questions:
a. If both statutes were specific, why didn’t the later-enacted statute control? The 1976 statute
applied to the specific crime exhibited here, whereas the 1990 statue, while specific, was
applicable generally to all crimes.
b. How should a court determine whether a statue is general or specific? Look to the text and
decide whether the statue is universal, not particularized, as opposed to special.
i. For example: a statute regulating all fruit is general relative to one concerning
bananas.
c. What is the general rule regarding implied repeals? Courts dislike implied repeal;
generally disfavored unless it is clear that the legislature aware of earlier statute and
they wanted the later statute to control.
d. What is the presumption on which this rule is based? That the legislature will clearly
express intent to repeal the statute.

b. Implied Repeals (implied repeal is disfavored by the courts)

i. Implied repeal is based upon the presumption that the legislature knew about the existing related
statutes
ii. Courts are very reluctant to hold that a later-enacted statute impliedly repeals an earlier one
without clear indication of legislative intent to do so.
1. If the legislature knew about the earlier statute and wanted to repeal it, then why didn’t the
legislature express its intention to repeal by saying so explicitly in the new statute?

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Morton v. Mancari (1974)

Facts: Non-Indian, Bureau of Indian Affairs employees, challenge The Indian Reorganization Act of 1934, which
gives preference for qualified Indians where an Indian and non-Indian are competing for a promotion or position
within the BIA.

Procedure: District Court concluded that the Indian preference was implicitly repealed by the EEOC.

Issue: Whether the Indian preference was repealed by the Equal Employment Opportunity Act of 1972?

P’s Argument: Since the 1972 EEOC Act proscribed racial discrimination in government employment , the Act
repealed the provision of the 1934 Act that called for preference in the BIA.
Holding: No.

Rationale:

• Title VII of the Civil Rights Act of 1964 explicitly exempts Indians and Indian tribes. This exemption reveals
a clear congressional recognition, within the framework of Title VII, of the unique legal status of tribal and
reservation-based activity.
• Nowhere in legislative history of EEOC 1972 is there mention of Indians.
• Cardinal Rule: repeals by implication are not favored!
• The preference is a longstanding component of the Government’s Indian program.
• There is nothing in the legislative history that indicates affirmatively any congressional intent to repeal the
1934 preference.
• The Indian preference is a specific provision applying to a very specific situation. The 1972 Act on the other
hand is of general application. Where there is no clear intention, a specific statute will not be controlled or
nullified by a general one, regardless of the priority of enactment.
• Where there are two acts upon the same subject, the rule is to give effect to both if possible.

Problem 13-1

iii. Tennessee Valley Auth. v. Hill 437 U.S. 153 (1978)

1. Facts: The Tellico dam was nearly complete when a new species of fish was discovered. If the
dam’s gates were shut (which was the next step to completion), the food supply to the fish would
die and the new species would die as well. The Endangered Species Act prohibited actions which
would thereby destroy the habitat of an endangered species. Time and again, the House
Appropriations Committee allocated funds to the dam project, and stated that the Act did not
apply to projects so close to completion (as exhibited by the Tellico dam), because such a holding
would have unreasonable results
2. Issue: Whether the Appropriation Committee’s comments had bearing on the interpretation of the
Endangered Species Act?
3. Holding: Analysis of the Act is based upon legislative proceedings leading up to the enactment of
the Act, not the post-passage expressions of intent. If the judicial interpretation is incorrect, the
legislature can make the appropriate corrections (which they did).
4. Dissent: It is unreasonable to think that the intention of the legislature was to prevent the
completion of a multimillion dollar project as was exhibited here.
5. Questions:
a. Why did the majority conclude that there was no implied repeal? The Appropriations
Committee’s comments were buried in a much larger bill (very little value to show
legislative intention of repeal  must be clear evidence for implied repeal).

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b. Do you agree? Yes, Congress should have thought of the issue and addressed it in the
codified law.
c. According to the majority, the statutes were reconcilable. What was the majority’s
reasoning? The problem could be solved by relocating the fish to another suitable
environment so as to permit the project to proceed as rapidly as possible. [Move the fish,
save the fish, close the dam, and everybody’s happy]
d. Why does the dissent disagree? Common sense interpretation of the statutory language:
the Act prohibited action that would destroy the habitat, but in this case the project was
almost finished (action doesn’t include completed projects).
e. Does the fact that later, Congress enacted a statute that specifically exempted the dam from
the ESA, show that the dissent was correct? No, it only shows that important people
wanted the completion of the dam, not that the interpretation of the Act was wrong.
f. Who is to blame for the fact that the dam was 99% completed then halted? Congress is to
blame because they didn’t do their job (either by forseeing possibilities such as this, or
by taking codified action (not merely Committee reports) after the problem arose.

XIII. Adopting Judicial Interpretations of Similar Statutes from Other Jurisdictions

a. Three situations:
i. Adoption of a Model or Uniform Act
1. In adopting a Uniform/Model Act, the states are looking for uniformity across state lines
2. Although the interpretation by courts of “sister” states are not binding, those holdings
should be given great deference to achieve uniformity
3. At times, legislatures make clear their desire for uniformity by adopting statutes that
specifically direct courts to construe uniform statutes in uniformity with other states
ii. When one state patterns a statute verbatim after another state’s statute (borrowed statutes)
1. Adopting the judicial interpretations of a “borrowed statute”
a. When a statute is adopted from another jurisdiction, a court will look to settled
judicial construction in the other jurisdiction as of the time the statute was adopted
b. Canon Presumption:
i. Courts presume that the adopting legislature was aware of all the other state’s
judicial constructions of the statute and intended to adopt not only the statute,
but also these judicial constructions as well.
1. Is this presumption accurate?
c. Van Horn v. William Blanchard Co.
i. Facts: Comparative negligence statute  P is barred from recovery if the P’s
negligence is greater than the D’s negligence
1. P’s negligence = 50%
2. D1 neg. = 30%
a. D2 neg. = 20%
ii. Statutory language at issue: “negligence of the person”
1. P: wanted it interpreted in the plural (the combination of both defendants)
2. D: individually against each defendant
iii. Legislative History: this statute was adopted from a Wisconsin statute; the
Wisconsin courts determined to implement the individual, rather than the
aggregate, approach
iv. Issue: whether a state that adopts a statute from another state should adopt that
other state’s construction of that statute as well?
v. Holding: yes; the court used the Wisconsin construction/interpretation
1. There were other state’s that had the same/similar statue; however the

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court picked the Wisconsin court  why not the others?

vi. Rule: legislative enactments patterned after other states are ordinarily
adopted w/ prior constructions placed on them by highest court of parent
jurisdiction
vii. Dissent – because other state adopted this approach is not good enough reason
to be bound by this construction because this construction produces
inequitable result; general rule is that courts give a statute patterned after that
of another state the same construction placed upon it by highest court of other
state, but this rule is merely a tool for ascertaining true intention of
legislature; judicial decisions of another state are not conclusive evidence of
legislative intent; legislative history indicates that bill’s sponsors considered
not only law of source state, but law of other states; by literally following
construction of source state, Court abandoned any real interpretation of statute
& does not consider public policy; language of statute itself does not demand
interpretation reached by majority
viii. Opinions from courts in other states are generally persuasive authority, but
are never binding!
iii. When a state enacts its own statute, but other jurisdictions coincidentally have similar,
though not identical, statutes.

Hillesland v. Fed. Land Bank Ass’n of Grand Forks (ND 1987)

Facts: Hillesland worked for the association. His job was to give financial advice to members. After being
contacted by the Westby’s, Hillesland’s sons bought their farm. Bank’s review committee thought there
might be a conflict of interest. Farm sold anyway. Fired—damage ass’n image and reputation.

Procedure: Hillesland sued alleging violations of Farm Credit Act, etc. DC granted summary judgment
dismissing. Appealed, arguing implied covenant of good faith and fair dealing in all employment contracts
and that was violated.

Analysis:
At-will employees may be discharged at any time for any reason. Exceptions to remedy this harshness are a
public policy exception and the implied covenant of good faith and fair dealing.

The North Dakota statute is modeled after California statute.

P’s Arg.: CA courts have given good faith and fair dealing exceptions, so that should be adopted by ND.

Holding: NO, ND will not follow CA.

Rationale: Given the erratic development of this doctrine, we decline to follow either CA or any variant.
We choose to align ourselves with the emerging majority of sister states which have rejected the implication
of a covenant of good faith and fair dealing in employment contracts.

Problem 11-1

XIV. The Impact of Constitutions on Interpretations

a. Constitutional Avoidance Doctrine: interpret statutes (if possible) to avoid getting to a constitutional
question  if there is an interpretation that doesn’t involve the constitution, use that one

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i. Courts can avoid the plain meaning of the text when the court concludes that there has been
scrivener’s error. We then turn to two specific ocnsitutional requirements that can directly
affect the interpretive process: the requirements that (1) statutes satisfy due process by
providing notice and (2) they not constitute prohibited ex post facto laws.
ii. The primary rationale for this doctrine is that it promotes separation of powers: it requires
courts to acknowledge legislative surpremacy.
iii. The canon only applies when there are at least two competing interpretations that are “fair”
constructions of the statute.
iv. “every state or federal statute should – if any other possible construction remains available
– be construed so that it does not violate the U.S. Constitution.”
1. Thus, ‘where a statute is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which such questions are
avoided, our duty is to adopt the latter.’
v. Why is there this doctrine?
1. B/c there is a presumption that the legislature only enacts statutes that are in accordance
with the constitution, and they could not have intended a statute to be enacted that is
contrary to the constitution
a. “The Court presumes that the legislature acts in accordance with the Constitution, and
the Court has no power even to consider the possibility that the legislature has not,
unless a case or controversy forces it to…”
2. Problem with the Constitutional Avoidance Doctrine
a. At times, judges seem to strain to find an interpretation that avoids the constitutional
question
b. U.S. v. Marshall
i. Facts: Mandatory sentencing based upon the weight of illegal substances, but a “mixture’ of
a drug is not to be converted to an equivalent amount pure drug; rather, the mixture is
included in the weight of the illegal substance  problem in this case is that a single dose of
LSD is too miniscule to be sold alone. LSD must be attached to something else, like a small
piece of paper or sugar cube. The amount of LSD has not been diluted (such as is the case
with the cutting of cocaine). The problem lies in the fact that a person with one dose of LSD
in a glass of orange juice would have a ten year minimum sentence, whereas one who sells
19,999 doses of pure LSD would escape the five year mandatory set out by the statute.
ii. Statutory language at issue: “mixture”
1. state wants to include the weight of the blotter paper
iii. Holding: Majority held that the blotter paper is included in the weight of the LSD doses b/c:
1. the statute doesn’t require pure weight
2. the LSD becomes a part of the blotter paper (there is no way to separate the two,
therefore it’s a mixture)
iv. Constitutional issue in the case: due process/equal protection violation
1. 1 dose in a heavier medium would carry a heavy penalty, whereas 1,000 doses in pure
form would not carry a heavy penalty (who’s the worse criminal compared with who gets
the most punishment for their actions?)
v. Dissent: the court did interpretory “handsprings” to avoid the constitutional question
vi. Another avenue for attack: Ambiguity
1. What is a mixture?
a. It is reasonable to construe that the LSD on blotter paper to be interpreted as either
being a mixture, or not being a mixture (they are equally plausible)
c. What about archaic laws? Sodomy laws; bans on birth control.

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i. The legislative representatives are reluctant to change certain laws as they could be see as,
for example, “pro-sodomy”
ii. The courts do have the obligation to rule on statutes that are clearly in conflict with
constitutional rights of individuals (even though the legislature is reluctant to change the
unconstitutional, archaic law)
Problem 16-1
I believe Mr. Beemer has a strong case for challenging his indictment on making a false statement to a
federal officer with the jurisdiction of a federal agency. In accordance with United States v. Taylor, I would
argue that the plain language of 18 U.S.C. Section 1001(a) does not contain an “exculpatory no” exception.
I believe there is much ambiguity to be found in the statute. It is important to note that in certain
circumstances, the government may not prosecute an individual for false or fraudulent statements which
were made in response to questioning initiated by the government where a truthful statement would have
incriminated the defendant. This is evidenced by the 5 th amendment’s protection against self-incrimination.
The statute seeks to balance between affirmative representations and mere exculpatory denials. In this case,
I believe response by Mr. Beemer was a mere exculpatory denial and did not have the purpose of giving
false information for the government to rely on to their detriment. Would the government really base a case
on the statements of one individual, who could go down for giving information to the government? For that
reason, I believe that by being allowed to protect against self-incrimination, Mr. Beemer should not be
charged.

However, there is a strong argument based on United States v. Rodriguez-Rios that Mr. Beemer should be
charged and found guilty. In this case, the court found that the language of Section 1001 was plain and
there was no reason to deviate. The court found that “no” was, indeed, a statement. In accordance with the
statute, a person who makes any false statement is in violation. In this case, that is what Mr. Beemer did.
The court found that the 5th amendment protects one from incriminating himself. In that situation, a person
need not say anything, but merely remain silent, not giving an answer or statement and exercise his 5th
amendment protection. Therefore, it is likely that Mr. Beemer should have just said nothing at all to
exercise his 5th amendment protection.

Finally, I would argue that rather than get in to whether Mr. Beemer should have been silent or said no to
protect himself from self-incrimination, the bottomline is we are dealing with a constitutional question of
due process. In that situation, we should utilize the constitutional avoidance doctrine. In order to avoid
construing a statute in a way that it violates the Constitution, we should follow the guidance of the cour tin
Taylor, finding that “no” is an exception.

XV. The Impact of Agency Interpretations

a. DEFERENCE is due to an agency’s interpretation of a statute
b. Questions
i. When an appellate court reviews a lower court’s interpretation of a statute, what is the
standard for review?
1. De Novo – CORRECT
2. Deference
3. Abuse of Discretion
ii. When a court reviews an agency’s interpretation, what standard of review applies?
1. De Novo
2. Deference – CORRECT
3. Abuse of Discretion
iii. Chevron’s first step looks at what? The clarity of the statute

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iv. Chevron’s second step looks at what? The agency’s interpretation.

v. An agency is more likely to win at which step of Chevron’s 2-step test? Step 2.
vi. A textualist will look at an agency’s interpretation of a statute before applying the textual
canons or looking at legislative history?
1. True
2. False – CORRECT. Textualist will look at what Congress promulgated & statutory
interpretation process. Then go to the agency’s interpretation.
vii. The best reason to defer to the agency’s interpretation is
1. That the agency has expertise in the area
2. That Congress has impliedly delegated to the agency – CORRECT (according to Jellum;
all the rest are true, but this is the best answer)
3. That the agency is more accountable to the electorate
viii. An appellate court’s standard of review as to facts: abuse of discretion (a form of deference)
ix. An appellate court’s standard of review as to law: de novo. Why? In same position.
c. Giving Deference to Agency Interpretations
i. Introduction
1. Federal agencies have no authority to act until Congress grants, or DELEGATES, power
to them. Congress delegates power by enacting statutes called enabling statutes directing
agencies to accomplish specific objectives, such as keeping the food supply safe.
2. Agencies often play an important role in interpreting statutes.
3. The president controls agencies
4. Courts generally defer to findings of facts by an agency
5. Administrative agencies have capabilities of doing things that all levels of government do
combined
a. Adjudicate (affect specific individuals’ rights) formally & informally
i. In the process of adjudication, may interpret a statute
ii. EX: OSHA statutory term, for example. If regulation is challenged, the court
reviews deferentially.
b. Enact & interpret
i. Regulations (regs are the equivalents of statutes)
ii. Statutes: agencies interpret more statutes than courts
c. Investigation & enforcement of regs
6. To a greater degree than ever before, society is subject to agency regulation
7. To the extent courts defer to agency interpretations, power shifts from courts &, perhaps,
Congress to the executive branch
8. In Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Court
decided how much deference courts must give to an agency’s interpretation of a statute
9. Congress entrusts agencies to implement law b/c those working for agencies are experts
in a given field
10. B/c Congress cannot legislate every detail, even when it enacts a comprehensive statute,
it delegates authority to agencies to fill gaps. Agencies fill gaps in many ways, including:
a. Interpreting a statute during an adjudication
i. A formal adjudication occurs when there is a judicial-like hearing prior to the
decision (ex: when an agency revokes a daycare operator’s license, the
operator would be entitled to have a hearing before an administrative officer
to challenge the agency’s decision)
ii. An informal adjudication occurs when a decision is made, but no actual
hearing takes place (ex: if the daycare operator’s license simply is renewed,

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then no hearing typically is held)

b. Rulemaking: promulgating a regulation during the process; the agency must interpret
the statute delegating it the power to act
i. Have both formal & informal rulemaking also, but the difference is not critical
ii. Letters: an agency’s letter (ex: in response to a question from an entity the
agency regulates) is an example of a policy setting b/c there is no formal rule-
making process
iii. **As the degree of formality increases, deference to the agency’s decision
increases
11. In administrative review, an appellate court generally defers to findings of fact made by
an agency for much the same reason that it defers to a trial court
12. Why a different standard of review for administrative agency?
a. Congress has impliedly delegated to the agency to pick up & fill in the holes
b. Agencies have expertise in the area, knowledge in the area, & will make better,
informed decisions
c. Agencies have accountability to the electorate (EX: FEMA) (unlike judges, agencies
are not immune from the public)
ii. Chevron’s Two Step Test
1. The court held that judges must defer to an agency’s interpretation of an ambiguous
statute—so long as the interpretation was reasonable—when that interpretation was
made pursuant to an agency’s rulemaking process.
2. Two Step Test
a. First, a court must determine whether Congress has unambiguously decided the issue
i. Whether Congress has spoken to the precise question at issue
ii. This step focuses on the statute
iii. Of course, whether a statute is ambiguous will depend on your approach to
interpretation (legislative history, preamble, etc.)
iv. When statutes are ambiguous, then we look to agency interpretations (Step 2)
b. Second, a court must examine how the agency resolved the ambiguity & whether the
agency’s interpretation is reasonable (not whether the court agreed with it, but
whether it was reasonable.)
i. Review is deferential to the agency
ii. The Court does not determine solely whether it agrees w/ the interpretation,
but whether the interpretation is reasonable (How to you determine if it is
reasonable: look to see if legislative history, text, or purpose can be used in
your favor)
iii. Only rarely does the SCT find that an agency’s interpretation was
unreasonable under Step 2
iv. Where to look: text, legislative history, purpose, textual canons – same
thing that looked at under Step 1
1. Then why is it harder at step two to overrule an agency interpretation
when you are looking at the same stuff? B/c the courts give the agency
great deference at step 2. Unless the agency’s interpretation is completely
off the wall, and there was no way such an interpretation could
reasonably have been made, then the agency interpretation will be upheld
at step 2.
2. Even more deference is given to the agency interpreting their own
interpretation  the agency wrote it itself and is interpreting its own

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language (must be VERY wrong to be overruled)

3. Why 2 steps?
a. At one step looking at the legislature, at the other, looking to the agency
b. Step 1: Finding something ambiguous is a much stricter standard; Step 2:
Reasonableness standard is very low; very rare to overturn as being unreasonable
(much more deferential)
4. Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
a. Facts: Pursuant to the Clean Air Act Amendments, Congress enacted certain requirements
applicable to states that had not achieved the national air quality stds established by the EPA.
States that had not achieved the required levels had to establish a permit program regulating
“new or modified stationary sources” of air pollution. The EPA regulation promulgated to
implement the permit requirement allowed a State to adopt a plantwide definition of the term
“stationary source”.
b. Issue: Whether the EPA’s decision to allow States to treat all pollution-emitting devices w/in
the same industrial grouping as though they were encased w/in a single “bubble” is based on
a reasonable construction of the statutory term “stationary source”?
c. Rule: Yes.
d. Holding: Based on the examination of legislation and its history we agree that Congress did
not have a specific intention on the applicability of the bubble concept in these cases, and
conclude that the EPA’s use of that concept here is reasonable policy choice for the agency to
make. The Agency’s interpretation represents a reasonable accommodation of the competing
interests and should be given deference.
e. Analysis
i. To overturn an agency’s interpretation, a court must generally hold either (1) that
Congress did not intend to delegate the authority; or (2) that Congress
unambiguously decided the issue
ii. Principle of administrative interpretations has been consistently followed by this
Court.
iii. This was a reasonable policy choice: In this case, the Administrator’s interpretation
is reasonable & thus is entitled to deference: the regulatory scheme is technical &
complex, the agency considered the matter in a detailed & reasoned fashion, & the
decision involves reconciling conflicting policies
iv. Agency are the experts
f. Chevron steps (rationale/reasoning and basic ‘in a nutshell’):
i. Intent of Congress Clear – controls
1. With Scalia on the court, this question has become “whether the statute is
ambiguous”
a. You can make anything “ambiguous” so there has been a shift to power
in the agencies
b. What has happened is that Chevron is on the decline, with it only
applicable to the more formal processes/opinions of agencies
2. Analysis:
a. Pre-Chevron: power with courts
b. Post-Chevron: power with congress
c. Post-Scalia: power with the agency
3. Reasons/rational of giving the agencies the power
a. “implicit delegation” of interpretation power to the agencies; the courts
are going to assume that if Congress left an ambiguity or gap, then
Congress wanted the agency to decide.
b. Expertise: aren’t the scientists/experts at the agencies better situated to
make decision on these narrow areas

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c. Political accountability: if the public doesn’t like the agency’s

interpretation, then the executive branch is held accountable through
elections (as opposed to judges with life terms)
ii. Intent of Congress not clear – Agency’s interpretation is reasonable
d. Agencies must interpret their own regulations
i. Should these interpretations receive more or less deference than Congress’s
statutes?
1. More
a. It’s very rare for an agency’s interpretation to be overturned
2. However, it all comes down to the judge and what they give them deference
wise—THIS IS WHERE THE PLAINLY WRONG TEST APPLIES!!!!!!! LOOK
OUT FOR THIS ON EXAM—WHO PROMULGATED THE CLAUSE (EITHER
A REGULATION OR STATUTE) IN EFFECT THAT NEEDS
INTERPRETATION

ii. Problem 17-1

1. What is the statutory language at issue: public accomodation
2. How does the Dentist want the language interpreted? Not subject to public
accommodation
3. How does Ms. Jones want the language interpreted? Subject to public accomodation
4. Chevron step 1:
a. Dentist Argument for ambiguity:
i. “Public accommodation” ambiguous
ii. They are a business, so should be excluded based on Mercer Rev. Stat.
129.211(c)
iii. Based on Senate Report: Do not hold themselves out to be for the public at
large
1. Have a sign that says by appointments only
2. Have history of refusing to accept certain patients (those lacking dental
insurance, personality clashes, and failure to pay bills)
3. Application forms for to be served must be filled out and submitted
iv. Admin. Code—shall not apply to business that is wholly private. Seems to be
b. Ms. Jones? Public accommodation is not ambiguous
i. Plain language of 129.211 (c) states that a business which accommodates the
public cannot discriminate based on disability
ii. Senate Report:
1. Dentist office is relied upon by the public at large
2. Dentists have an obligation to serve the public
iii. Mercer Admin. Code
1. “place of accommodation” is establishment dealing with services of any
kind
a. Clinics hospitals and pharmacies—very similar to dentist

5. Chevron step 2: Assuming the court finds that Congress did not speak to the precise issue
a. Dentist’s best argument that the agency’s interpretation is reasonable? Great
deference to agency and sources support the agency’s interpretation
b. Jones’ best argument? Codified purpose and legislative history  the agency’s
interpretation is not reasonable when matched to the purpose/intent of the law.

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6. Sometimes agencies have to interpret their own regulations

a. Should they receive more deference in this interpretation?
b. Yes, b/c they have interpreted their own regulation & they really should know what it
means. Therefore, we do give more deference here.
c. Rarely, if ever, is an agency’s interpretation of its own regulation overturned

Adjudication
• May hold a formal, judicial type hearing or act less formally
• Formal Administrative Hearings: resemble a civil trial with many of the same procedural
accoutrements
• The main difference between civil trials and formal administrative hearings are that:
o Administrative hearings take place before an ALJ rather than a trial judge
o The rules of evidence do not apply in administrative hearings
• Informal Administrative Hearings: very few procedures required
o APA only requires:
 The agency must decide the issue promptly
 The agency must notify the affected party of its decision and provide a brief statement
of the reasons for the denial

Legislative Rulemaking:
• Agencies interpret statutes when they promulgate, or enact, regulations
• Formal Rulemaking: resembles formal agency adjudication, meaning there is an administrative
hearing with trial like procedures
o Applies broadly to everyone, not just particular parties
• Informal Rulemaking: (notice and comment rulemaking)
• Require an agency to:
o Publish notice of a proposed regulation in the Federal Register, in which the agency solicits
comments from the public about the proposed regulation.
o The agency then collects and responds to comments by publishing both in the Federal
Register, explaining why it accepted or rejected the proposed changes to the regulation.
o At the end of this process, which usually takes years, the agency promulgates a regulation

Non-Legislative Rulemaking:
• Agencies act in less formal ways, for example, an agency may respond to a regulated entity’s
question about the meaning of a regulation or statute.
• An agency may issue enforcement guidelines or publish procedural and policy manuals
• These lack “force of law”, so they do not receive Chevron deference.

Christensen v. Harris County

Issue: Whether the agency should receive Chevron deference for an interpretation of a statute it reached in
an informal manner?

Holding: No

Rule: Interpretations made with the “force of law”, those being formal actions, formal adjudication, formal
rulemaking, and notice-and-comment rulemaking, should be given Chevron deference.

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Interpretations made without force of law, opinion letters, policy statements, agency manuals, and
enforcement guidelines, should be given the Skidmore-power to persuade deference.

United States v. Mead Corp., (2001)

Facts: Mead’s binders were classified by the Customs Service as tariff free; however, the agency changed its
interpretation and began classifying them as “bound dairies” subject to tariff.

Procedure: Mead filed suit. Federal Circuit held that Customs classification rulings should not get Chevron
deference because rulings are not preceded by notice and comment and thus do not carry the force of law and are not
like regulations, intended to clarify the rights and obligations of importers beyond the specific case under review.
The USSC held that administrative implementation of a particular statutory provision qualifies for Chevron
deference when it appears that Congress delegated authority to the agency generally to make rules carrying the
force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that
authority.

Issue: Whether a tariff classification ruling by the United States Customs Service deserves judicial deference?

Holding: The tariff classification has no claim to judicial deference under Chevron, there being no indication that
Congress intended such a ruling to carry the force of law, but we hold that under Skidmore v. Swift & Co., the ruling
is eligible to claim respect according to its persuasiveness.

Rule: administrative implementation of a statutory provision gets Chevron deference when it appears that Congress
delegated authority to the agency to make rules carrying the force of law, and that the agency interpretation claiming
deference was promulgated in the exercise of that authority. (Some agency actions might qualify for chevron
deference even though the agency used less formal procedures.)

held that (1) a federal agency's administrative implementation of a federal statutory provision
qualifies, for Chevron deference when it appears that (a) Congress delegated authority to the agency
to make rules carrying the force of law, and (b) the agency interpretation claiming deference was
promulgated in the exercise of that authority; (2) delegation of such authority may be shown in a
variety of ways, such as by (a) an agency's power to engage in adjudication or notice-and-comment
rulemaking, or (b) some other indication of a comparable congressional intent; (3) a Customs Service
letter ruling concerning the proper classification of an imported item has no claim to Chevron
deference, because there is no indication that Congress intended such a ruling to carry the force of
law; (4) however, the letter ruling in question was eligible under Skidmore v Swift & Co. (1944) to
claim respect according to the ruling's persuasiveness; and (5) the Skidmore assessment ought to be
made in the first instance by the Court of Appeals or the CIT.

Scalia, J., dissenting, (basically, use Chevron) expressed the view that (1) the Supreme Court's new
doctrine in the case at hand, which doctrine largely replaced the Chevron decision with a totality-of-
the-circumstances test, was neither sound in principle nor sustainable in practice; (2) instead, the
Supreme Court should have adhered to the original Chevron formulation, under which any resolution
of a federal statutory ambiguity, by the agency administering the statute, that is authoritative--that
represents the official position of the agency--must be accepted by the courts if the resolution is
reasonable; and (3) with respect to the tariff classification in question, the Supreme Court should have
(a) deferred to the reasonable interpretation given by the Customs Service to the statute which the
Customs Service was charged with enforcing

Barnhart v. Walton
Facts:
The Social Security Act authorizes payment of Title II disability insurance benefits and Title XVI
Supplemental Security Income to individuals who have an "inability to engage in any substantial gainful

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activity by reason of any medically determinable...impairment...which has lasted or can be expected to last
for a continuous period of not less than 12 months."
After developing a serious mental illness, Cleveland Walton lost his job as a teacher in October 1994.
Eleven months later, Walton was working as a cashier. When Walton applied for Title II disability insurance
benefits and Title XVI Supplemental Security Income, the Social Security Administration denied him
benefits, reasoning that his "inability" to engage in substantial gainful activity lasted only 11 months. The
District Court affirmed. In reversing, the Court of Appeals held that the 12-month duration requirement
modifies "impairment" not "inability," that no similar duration requirement relates to an "inability," and that,
therefore, Walton was entitled to benefits despite regulations restricting them to those unable to work for 12
months. Further, the appellate court concluded that Walton qualified for benefits since, prior to his return to
work, his "inability" would have been "expected" to last 12 months.
Question:
Does the term "inability," in the Social Security Act, include a 12 month requirement, such that the inability
must last, or must be expected to last, for at least 12 months? Is the term "expected to last" applicable only
when the "inability" has not yet lasted 12 months? (Must the inability last or be expected to last for the same
amount of time?)
Conclusion:
Yes and yes. In a 9-0 opinion delivered by Justice Stephen G. Breyer, the Court held that the Social Security
Administration's interpretations of the statute fell within its lawful interpretative authority. Justice Breyer
noted that the Administration has determined in both its formal regulations and its interpretation of those
regulations that an "inability" must last the same amount of time as an "impairment," or last or be expected
to last not less than 12 months. "The statute's complexity, the vast number of claims that it engenders, and
the consequent need for agency expertise and administrative experience lead us to read the statute as
delegating to the Agency considerable authority to fill in, through interpretation, matters of detail related to
its administration," concluded Justice Breyer.
Analysis:
The Court rejected the Christenson formality distinction, saying, “the fact that the Agency previously
reached its interpretation through means less formal than ‘notice-and-comment’ rulemaking does not
automatically deprive that interpretation of judicial deference.” Mead was clear that no bright-line rule
existed based on how the interpretation was arrived at. Reaffirming, that some non-legislative rules might
receive Chevron deference.
CONGRESSIONAL INTENT is used to determine whether Chevron deference should be given.
-In determining whether Congress has the intent, the Court does not review legislative history for actual
intent, rather it looks for “hypothetical intent,” based on the factors indentified here:
1) the interstitial nature of the legal questions, 2) the relevance of the agency’s expertise, 3) the importance
of the question to administration of the statute, 4) the complexity of the statutory scheme, and 5) the careful
consideration the agency has given the question over a long period of time.
The test for whether Chevron applies is simply whether Congress meant for the courts to defer.
-The more difficult the issue and the regulatory scheme, the more experience the agency has in the
particular area, the more important resolution of this issue is to the agency’s ability to administer the
program, and finally, the more carefully the agency would have wanted courts to defer to the agency.
• This is a promulgated formal regulation and the agency has properly interpreted its own regulation

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• This is a long-standing agency interpretation

Scalia Concurrence: said that the notion that particular deference was owed to an administrative
agency interpretation of longstanding duration was an anachronism.

Deference to Agencies: Brown & Williamson

FDA v. Brown & Williamson Tobacco Corp. (2000)
Facts: FDA knew tobacco was deadly, but never regulated it as a “drug.”
Holding: Majority rejected the FDA’s decision to regulate tobacco. The majority held that Congress
had: 1) created a distinct regulatory scheme for tobacco products, 2) squarely rejected proposals to
give the FDA jurisdiction over tobacco, and 3) acted repeatedly to preclude other agencies from
exercising authority in this area.
While Congress may not have spoken to the precise issue, it had spoken broadly enough on related
questions to prevent the agency from acting at all. No deference whatsoever was accorded the
agency’s interpretation, even though the agency used force-of-law procedures.
Gonzalez v. Oregon
The Court again found that Congress had not delegated to an agency, but in this case applied
Skidmore deference rather than no deference to the agency interpretation.
Issue: Whether the Controlled Substances Act allowed the US Atty General to prohibit doctors from
prescribing regulated drugs for use in physician-assisted-suicide, notwithstanding a state law
permitting the procedure?
Holding: Interpretation entitled to Skidmore because Atty General did not have interpretative power
in this area. Rejected Skidmore and gave agency’s interpretation no deference.
Under Brown & Williamson and Gonzalez, when Congress does not intend to delegate a specific issue
to an agency, then the agency’s interpretation is entitled to either no deference or to Skidmore
deference.
Summarize:
Chevron—many thought applied to all agency interpretations
Chirstensen—limited Chevron’s reach by holding that Chevron applied only where the agency acted
with the force of law
Mead and Barnhart—expanded Christensen to hold that Chevron applied whenever Congress so
intended
Brown & Williamson and Gonzalez—limited Chevron. Prior to these cases, courts assumed that
when Congress left a gap or drafted ambiguously, Congress implicitly intended to delegate power to
agency interpretation. Now a court needs to ensure that Congress actually intended to delegate the
interpretative power: gaps and ambiguities are not enough.
To get through Mead’s Mess:
First, ask whether Congress intended to delegate the specific issue to the agency at all. If Congress
never delegated, then the agency has no power to interpret the statute and either Skidmore or no
deference is appropriate.
Second, if Congress has delegated the specific issue, then, using the traditional tools of interpretation,
ask whether Congress has spoken to the precise issue before the Court. If so, that is the end of the

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matter, for Congress has the authority to interpret its own statutes. But if Congress has not directly
spoken, if Congress has left a gap or impliedly delegated, then proceed to the next step.
Third, if Congress has not spoken, then focus on the interpretative method used and ask whether the
agency has acted with the force-of-law. If the agency acted with the force-of-law, then, so long as the
agency’s interpretation is reasonable, Chevron applies. If not, no deference is due.
Fourth, ask whether Chevron deference is appropriate even though the agency failed to act with
force-of-law. This focuses on the question at hand. If the other factors in Barnhart suggest that
Congress intended the agency to receive such deference, then the agency interpretation may still be
entitled to receive Chevron deference. Those factors are: 1) the issue is a major or non-major issue,
2) agency expertise is important to resolve the issue, 3) the interpretation is important to the
administration fo the statute, 4) the statutory scheme is complex, and 5) the agency has held the
interpretation for a long time. The agency’s interpretation must be reasonable or no deference is due.
Finally, if Chevron deference is not due, Skidmore deference will likely be appropriate, assuming the
agency’s interpretation has the power to persuade the court.
Problem 17-2

It is a standing rule, perhaps, longstanding agency rule, that the Park Service has promulgated a regulation
that allows local park directors to prohibit surfing when he determines that conditions are unsafe.
Therefore, deference should be given to the agency. We should not look to the relevance of the non-
legislative interpretative rule that the individual park ranger gave, because the agency has promulgated a
rule that he can make a rule. I would apply the Mead Rule: administrative implementation of a particular
statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.

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e. Review of Administrative Law

i. Deference to Agency Interpretations
1. Regulations
a. Plainly wrong test
ii. Statutes: 2-Step Test
1. First determine whether statute is clear or ambiguous
a. Use all the traditional means of statutory interpretation
i. Text
ii. Legislative history
iii. Context: social & legal
iv. Purpose
b. Rationale
i. If clear, then Congress has spoken, agency cannot interpret
ii. If ambiguous, Congress has implicitly delegated to agency
1. Agency expertise
2. Agency knowledge
3. Congress delegated
2. Second, if statute is ambiguous, then ask whether agency interpretation is reasonable
a. Look to
i. Text
ii. Legislative history
iii. Context: social & legal
iv. Purpose
b. Step 2 more deferential to agency
i. Agency more likely to win at this step
ii.
Agency Deference to Judicial Interpretation

Nat’l Cable & Telecomms. Assn. v. Brand X Internet Servs.

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Facts: Title II of the Communications Act of 1934 subjects all providers of “’telecommunications service’
to mandatory common-carrier regulation. The FCC concluded that cable companies that sell broadband
internet service do not provide ‘telecommunications service’ and are exempt from mandatory common-
carrier regulation under Title II.”

Language at issue: “Offer”

Issue: Was the FCC interpretation a lawful construction of the Communications Act under Chevron and the
Administrative Procedure Act? Was it correct for the FCC to make a rule? Did Chevron apply or should
stare decisis be relied upon?

Holding: FCC interpretation was correct. The Chevron framework governs our view of the Commission’s
construction. Congress has delegated to the Commission the authority to promulgate binding legal rules; the
Commission issued the order under review in the exercise of that authority; and no one questions that the
order is within the Commission’s jurisdiction. Hence, we apply the Chevron framework to the
Commission’s interpretation of the Communication’s Act.

Rationale:
COA in Portland overrode Commission rule. However, a court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds
that its construction follows from the unambiguous terms of the statute and thus leaves no room from
agency discretion. (Basically, if the statute was unambiguous, stare decisis prevails because the agency
had no reason to interpret the statute without ambiguity)

-In this case, the Portland decision did not hold that its interpretation of “telecommunications
service” was the only permissible reading of the statute.

The Commission is in a far better position to address these questions than we are.

Bottomline:
Court held that if a prior court had determined that the statute was clear under Chevron’s first step, then the
agency would be bound by that judicial interpretation. But, if the court did not decide that the statute was
clear, then the prior interpretation would not bind the agency. In other words, a prior interpretation does not
eliminate a pre-existing ambiguity. The prior interpretation merely reflects a determination that either there
is no ambiguity or that there is ambiguity. If there is no ambiguity, then Congress has spoken and the
agency, as well as the courts, must abide by Congress’s intent. But if the statute is ambiguous, then whether
a court issues the first interpretation of an ambiguous statute or an agency does, the agency is not bound by
that interpretation.

Dissent:
Basically, Portland court was not ambiguous, the language was unambiguous, so stare decisis should be
relied upon. Providers other than the cable company provide high speed internet. It remains perfectly clear
that someone who sells cable-modem services is offering telecommunications. For that simple reason set
forth in the statute, I would affirm the COA.

Bowles v. Seminole Rock & Sand or Auer Deference—An agency’s interpretation of its regulations has
controlling weight unless it is plainly erroneous or inconsistent with the regulation.

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Problem 17-3

29CFR 1625.2(a) says unlawful to give preference between people who are over 40

Since the employees you represent are over 40, it is unlawful for the employer and union to give health
benefits to people 50 and older, but not those 40 and older. (Basically, if you are over 40, you should get
the same things people over 50 get)

Hamilton spoke to the issue of reverse age discrimination and ruled that that was not a claim. Since the
federal regulation was enacted subsequent to this case, stare decisis should be relied upon. (refers
specifically to problems faced by older workers)--so the court found this language unambiguous. Since the
language is unambiguous, if Chevron is applied, a court should stop at step one. Therefore, no deference
should be given to the agency.

Assuming, the court finds that the language of Hamilton was not unambiguous, based on Chevron,
deference would be given to the agency. If deference is given to the agency, the agency would say that
there can be a claim of reverse age discrimination. The agency will rely on 29 USC 1625.2(a). The agency
can also rely on language in 29 USC 621, which is the Congressional Statement of Purpose which states that
the intent is to promote employment, not promote benefits, as is the case here. Again, the Senate hearings
echo this.

The employer might argue, that unless benefits are given to older workers, then they will not be able to
employ older workers, which would be contrary to the purpose of the act, because older workers would not
be interested if they could not get some benefits.

Hamilton v. Caterpillar Inc., (7th Cir. 1992)

Facts: Caterpillar planned to shut down 2 plants & in the process struck a deal w/ the union to amend its retirement
plan to permit earlier retirement for those over 50 w/ 10 years of service. P (Hamilton) brought a class action suit on
behalf of those btw 40 & 50 for reverse age discrimination.
Issue: Whether the ADEA extends coverage to all discriminated on the basis of age or only to older workers?
Rule: Older workers.
Analysis: Despite EEOC regulations, some language in the statute (29 U.S.C. § 623), & language in the Act’s
purpose statement, Congress was concerned that older people were being cast aside on the basis of inaccurate
stereotypes about their abilities & sought to regulate only that aspect of age discrimination, not age discrimination
generally.
Garrett v. Runyon, U.S. EEOC, Appeal No. 01960422, 1997
Facts: 2 rural mail carriers were hired at the same time (same seniority) & both were up for promotion. CBA had no
tie-breaker provision; therefore, Postmaster originally used provision from another CBA & gave to appellant b/c she
scored higher on the Rural Carrier Examination. CBA later was amended to include a tie-breaker provision that
called for the “earliest date of birth” to be used. Consequently, appellant had position taken away from her.
However, both appellant & other carrier were w/in the covered class of the ADA (over 40).
Issue: Whether Postmaster could use age as tie-breaker where both carriers fell into protected age group?
Rule: No.
Analysis: Regulation provides both are protected. Must defer to regulation (despite Hamilton). Age cannot be used
here.

XVI. EXAM REVIEW

a. Common Mistakes on Exams
i. Not understanding the theories & not knowing which one to use to best represent client

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ii. Not clearly reading the statutory language

1. The statutory language is critically important
2. Don’t tell her the statute says something that it does not
iii. Read multiple choice slowly & carefully
b. Questions to Ask When Answering An Exam Question
i. What is the statute?
ii. What is the statutory language at issue?
iii. Is the language ambiguous? Could you argue that it is ambiguous? (Usually want to argue
that language is ambiguous.)
iv. If this is a court case, what theory of construction is the Majority/Dissent using?
v. What canons of construction apply here?
c. Can purpose & intent be the same?
i. Yes, absolutely.
ii. Purpose → broad meaning behind the statute.
1. Even if not thinking of a specific example at time enact, still may think that will cover a
certain behavior b/c so broad.
d. Do all approaches to statutory interpretations use textual canons or just textualists?
i. All, but textualists more so
ii. When more than one applies, analyze them all
iii. Whichever one favors your client!
iv. Remember: Every theorist starts w/ the text.
e. Scale Towards Abstraction
i. text - - components - - canons - - context - - legislative history - - unexpressed purpose
ii. textualist - - plain meaning (textualist) - - contextualists - - intentionalist - - purposivist
1. To us, textualist & plain meaning are the same
2. Intent often found in legislative history
3. Whereas purpose can be found just about anywhere
f. Textualism Arguments
i. Against: Textualism presumes judges are intellectually dishonest & will not abide by their
constitutional duties. This is a demeaning presumption towards the judiciary.
ii. For: It encourages legislators to write clearer statutes. On the other hand, other people argue
that language will inevitably have ambiguity when applied to particular fact patterns & strict
textualism does not really guide legislators on how to draft for the difficult or unanticipated
cases. It is not the judiciary’s job to instruct the legislature on how to write statutes.

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