Abstract
This chapter will introduce the building blocks underlying statutory interpretation in American jurisprudence: the sources of evidence American judges use to find the meaning of statutory language and the theories of interpretation American judges use when approaching an interpretation question. While at first glance this chapter may seem to be one designed for academics and theorists who argue about which theory is best, it is also designed for lawyers. Grasping the building blocks of statutory interpretation is essential for anyone wishing to make statutory arguments in an American court. Theory matters, but it matters in unusual ways. The sources and theories enable lawyers to “talk the talk”, so to speak. Lawyers do not win cases simply because they argue text to a textualist judge or purpose to a purposivist judge, but a textualist judge will listen more carefully to textual arguments, while a purposivist judge will want to know the statutory purpose. Finally, theory impacts the legislative process, from drafting to enactment; thus, this chapter will examine the role legislative history has had both now and in the past.
I would like to thank Eka Lomtatidze for her thoughtful comments, James Walsh for his excellent research assistance, and Dianna Lee for her helpful editing suggestions. Information in this chapter appeared originally in Jellum, 2013. Used, as revised, with the permission of Carolina Academic Press.
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Notes
- 1.
McNally v. United States, 483 U.S. 350, 372–73 (1987) (Stevens, J., dissenting) (“Statutes like the Sherman Act, the civil rights legislation, and the mail fraud statute were written in broad general language on the understanding that the courts would have wide latitude in construing them to achieve the remedial purposes that Congress had identified. The wide open spaces in statutes such as these are most appropriately interpreted as implicit delegations of authority to the courts to fill in the gaps in the common–law tradition of case–by–case adjudication.”).
- 2.
U.S. Const. art. I, §1; U.S. Const. art. II, §1; U.S. Const. art. III, §1.
- 3.
In Alexander v. Sandoval, 532 U.S. 275 (2001), the U.S. Supreme Court held that there was no private cause of action to enforce disparate–impact regulations promulgated under Title VI of the Civil Rights Act of 1964. Id. at 285. Justice Scalia, writing for the majority, said: “We therefore begin (and find that we can end) our search for Congress’s intent with the text and structure of Title VI.” Id. at 288. In other words, even though the statute at issue had been enacted during a time when the Court easily implied private rights of action, even though the enacting legislature might thus have anticipated that the Court would imply a cause of action in this statute, and even though implied rights are by their very nature non–explicit, Justice Scalia used a textualist approach to determine whether Congress intended the act in question to allow private causes of action. In essence, Justice Scalia obliterated the concept of implied private causes of action. In his dissent, Justice Stevens noted: “[T]oday’s decision is the unconscious product of the majority’s profound distaste for implied causes of action rather than an attempt to discern the intent of the Congress that enacted Title VI of the Civil Rights Act of 1964.” Id. at 317 (Stevens, J., dissenting).
- 4.
For a more detailed discussion of this topic, see Jellum (2009).
- 5.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
- 6.
United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005) (“[I]ndividuals should not languish in prison unless the legislature has clearly articulated precisely what conduct constitutes a crime.”).
- 7.
California’s statute provides, “The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.” Cal. Penal Code §4 (West 2013).
- 8.
E.g., People v. Superior Court, 926 P.2d 1042, 1056 (Cal. 1996) (stating, “while … [the rule of lenity] has been abrogated … it is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arises out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.”) (citations omitted).
- 9.
816 A.2d 562, 587 (Conn. 2003).
- 10.
See, e.g., State v. Grunke, 752 N.W.2d 769, 775 (Wis. 2008) (“If the words chosen for the statute exhibit a plain, clear statutory meaning, without ambiguity, the statute is applied according to the plain meaning of the statutory terms. However, if a statute is capable of being understood by reasonably well–informed persons in two or more senses[,] then the statute is ambiguous, and we may consult extrinsic sources to discern its meaning. While extrinsic sources are usually not consulted if the statutory language bears a plain meaning, we nevertheless may consult extrinsic sources to confirm or verify a plain–meaning interpretation.”) (internal quotation marks omitted).
- 11.
Textualism is similar to clara non sunt interpretanda (meaning transparent text requires no interpretation).
- 12.
Jurisprudentially, ambiguity is not consistently defined across jurisdictions. One common articulation of ambiguity is that statutory language is “ambiguous if it is capable of being understood by reasonably well–informed persons in two or more senses.” State ex rel Kalal, 681 N.W.2d 110, 124 (Wis. 2004). Although the “reasonable people disagree” standard is oft–articulated, it is inaccurate. Ambiguity more likely “means that there is more than one equally plausible meaning.” Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 41 (2008) (stating that although both sides presented “credible” interpretations, there was no ambiguity because “two readings of the language that Congress chose [were] not equally plausible\(\ldots\).”); Mayor of Lansing v. Michigan Pub. Serv. Comm’n., 680 N.W.2d 840, 847 (Mich. 2004); (stating that “a provision of the law is ambiguous only if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning.”).
- 13.
The absurdity doctrine was first introduced in 1892 in the famous case Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). This exception allows judges to look beyond the ordinary meaning of the text to extra–textual sources when the statute would be absurd if interpreted as written. If, after reviewing the extra–textual evidence, a judge determines that the legislature did intend the absurd result, then that intention should control. But if, after reviewing the extra–textual evidence, the judge determines that the absurdity was not intended, then the absurdity exception gives the judge the option to ignore the ordinary meaning. See, e.g., Green v. Bock Laundry Machine Co, 490 U.S. 504, 509 (1989) (rejecting the ordinary meaning of the word “defendant” in Rule 609(a) (1) of the Federal Rules of Evidence as absurd).
- 14.
The scrivener’s error exception to the plain meaning rule allows judges to correct obvious clerical or typographical errors. See, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993).
- 15.
See, e.g., Fla. Dep’t of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1074–75 (Fla. 2011) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. However, if the statutory intent is unclear from the plain language of the statute, then we apply rules of statutory construction and explore legislative history to determine legislative intent.”) (internal quotation marks omitted).
- 16.
Green v. Bock Laundry Machine Co, 490 U.S. 504 (1989).
- 17.
Church of the Holy Trinity v. United States, 143 U.S 457 (1892).
- 18.
Compare Smith v. United States, 508 U.S. 223, 228–29 (1993) (holding that exchanging a gun for drugs was “use” of a firearm), with Watson v. United States, 128 S. Ct. 579, 586 (2007) (holding that receiving a gun in exchange for drugs was not “use” of a firearm).
- 19.
Compare Patrie v. Area Coop. Educ. Serv., 37 Conn. L. Rptr. 470, 473 (Conn. Super. Ct. 2004) (using the ordinary meaning of the word “assault” for an indemnification statute, which was written for lay people), with Dickens v. Puryear, 276 S.E.2d 325 (N.C. 1981) (using a legal meaning of the word “assault” for a limitations statute, which was written for lawyers).
- 20.
Nix v. Heddon, 149 U.S. 304, 307 (1893) (holding that a tomato is a vegetable not a fruit).
- 21.
State ex rel. Helman v. Gallegos, 871 P.2d 1352, 1359 (N.M. 1994).
- 22.
See, e.g., INS v. Cardoza–Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring) (“[The majority] attempts to justify this inquiry by relying upon the doctrine that if the legislative history of an enactment reveals a clearly expressed legislative intention contrary to (the enactment’s) language, the Court is required to question the strong presumption that Congress expresses its intent through the language it chooses. Although it is true that the Court in recent times has expressed approval of this doctrine, that is to my mind an ill–advised deviation from the venerable principle that if the language of a statute is clear, that language must be given effect–at least in the absence of a patent absurdity.”) (internal quotation marks omitted).
- 23.
Conroy v. Anskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring).
- 24.
Green v. Bock Laundry Mach. Co., 490 U.S. 504, 529 (1989) (Scalia, J., concurring).
- 25.
Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991). Currently, only Justice Thomas seems to be completely onboard with this approach.
- 26.
508 U.S. 223 (1993).
- 27.
Smith, 508 U.S. at 242 (Scalia, J., dissenting).
- 28.
Bailey v. United States, 516 U.S. 137 (1995) (holding that a defendant who carried a gun in the trunk of his car did not “use” a firearm within the meaning of the statute).
- 29.
Watson v. United States, 128 S. Ct. 579, 586 (2007).
- 30.
443 U.S. 193 (1979).
- 31.
Purposivism is also known as the legal process theory.
- 32.
143 U.S. 457 (1892).
- 33.
Id. at 458.
- 34.
Id. at 465.
- 35.
Id. at 459.
- 36.
For an interesting and heated debate between Justice Scalia and Judge Posner regarding statutory interpretation , see Posner (Sept. 18, 2012) and Shim (Sept. 18, 2012) (“Scalia transformed his response from a defensive to an offensive one, calling Posner’s accusation that he had an inconsistent judicial record, to put it bluntly, a lie.”); Posner (Sept. 20, 2012).
- 37.
United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543–44 (1940) (citations omitted).
- 38.
42 U.S.C. §§2000e et. seq. (2012).
- 39.
5 U.S.C. §552 (2012).
- 40.
LeFever v. State, 877 P.2d 1298, 1299–1300 (Alaska Ct. App. 1994).
- 41.
Anchorage v. Sisters of Providence in Wash., Inc., 628 P.2d 22, 27 n.6 (Alaska 1981).
- 42.
655 F.2d 951 (9th Cir.), cert. denied, 455 U.S. 898 (1981).
- 43.
Id. at 953.
- 44.
Id. at 956 n.9 (citing 127 Cong. Rec. 10376).
- 45.
Jellum and Hricik (2009, 44).
- 46.
Id. at 906.
- 47.
Id. at 908.
- 48.
Id.
- 49.
Id. at 907.
References
Chomsky, Carol. 2000. Unlocking the mysteries of Holy Trinity: Spirit, letter, and history in statutory interpretation. Columbia Law Review 100:901.
Davies, Jack. 2007. Legislative law and process in a nutshell, 3rd ed. St. Paul: Thompson/West.
Dworkin, Ronald. 1986. Law’s empire. Cambridge: Harvard University Press.
Easterbrook, Frank. 1983. Statutes’ domains. University of Chicago Law Review 50:533.
Easterbrook, Frank H. 1990. What does legislative history tell us? Chicago–Kent Law Review 66:441.
Eskridge, Jr., William N. 1987. Dynamic statutory interpretation. University of Pennsylvania Law Review 135:1481.
Eskridge, Jr., William N. 1990. The new textualism . U.C.L.A. Law Review 37:624.
Eskridge, Jr., William N., and Philip P. Frickey. 1994. Introduction to Henry M. Hart, Jr. & Albert M. Sacks, the legal process. In The legal process: Basic problems in the making and application of law, ed. William N. Eskridge, Jr. and Philip P. Frickey. New York: Foundation Press.
Eskridge, Jr., William, Philip P. Frickey, and Elizabeth Garrett. 2001. Cases and materials on legislation: Statutes and the creation of public policy, 3rd ed. Eagen: West Group.
Eskridge, Jr., William, Philip P. Frickey, and Elizabeth Garrett. 2006. Legislation and statutory interpretation, 2nd ed. New York: Foundation Press.
Farber, Daniel A. 2000. Do theories of statutory interpretation matter? A case study. Northwestern University Law Review 94:1409.
Fuller, Lon L. 1949. The case of the Speluncean explorers. Harvard Law Review 62:616.
Gluck, Abbe R., and Lisa Schultz Bressman. 2013. Statutory interpretation from the inside–an empirical study of congressional drafting, delegation, and the canons: Part I. Stanford Law Review 65:901.
Hart, Henry M., and Albert M. Sachs. 1994. The legal process: Basic problems in the making and application of law, ed. William N. Eskridge, Jr. and Philip P. Frickey. New York: Foundation Press.
Jellum, Linda D. 2009. “Which is to be Master,” the judiciary or the legislature? When statutory directives violate separation of powers. U.C.L.A. Law Review 56:837.
Jellum, Linda D., and David C. Hricik. 2009. Modern statutory interpretation: Problems, theories, and lawyering strategies, 2nd ed. Durham: Carolina Academic Press.
Katzmann, Robert A. 1988. Summary of proceedings. In Judges and legislators: Toward institutional comity, ed. R. Katzmann, 174–175. Washington, DC: Brookings Institution Press.
Katzmann, Robert A. 2012. Statutes. New York University Law Review 87:637.
Kernochan, John M. 1976. Statutory interpretation: An outline of method. Dalhousie Law Journal 3:333.
Nourse, Victoria F., and Jane S. Schacter. 2002. The politics of legislative drafting: A congressional case study. New York University Law Review 77:575.
Posner, Richard A. 1983. Statutory interpretation–in the classroom and in the courtroom. University of Chicago Law Review 50:800.
Posner, Richard A. Sept. 13, 2012. The spirit killeth, but the letter giveth life. New Republic 18.
Posner, Richard A. Sept. 20, 2012. Richard Posner responds to Antonin Scalia’s accusation of lying. New Republic. http://www.tnr.com/blog/plank/107549/richard-posnerresponds-antonin-scalias-accusation-lying. Accessed 11 Nov 2013.
Scalia, Antonin. 1997. A matter of interpretation: Federal courts and the law. Princeton: Princeton University Press.
Shim, Eileen. Sept. 18, 2012. Yet another round of the Scalia–Posner fight. New Republic. http://www.tnr.com/blog/plank/107429/scaliaposner-fight-supreme-court. Accessed 11 Nov 2013.
Walker, John M. 2001. Judicial tendencies in statutory construction : Differing views on the role of the judge. New York University Annual Survey of American Law 58:203.
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Jellum, L.D. (2015). The Theories of Statutory Construction and Legislative Process in American Jurisprudence. In: Araszkiewicz, M., Płeszka, K. (eds) Logic in the Theory and Practice of Lawmaking. Legisprudence Library, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-19575-9_7
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