Justice Breyer delivering the majority opinion of the court.

After looking at the _____, we are still left with an ambiguity regarding the ____ Act.
Because our goal is to choose the interpretation that (definition of chosen theory of
interpretation), we will look to the text, canons of interpretations, and Legislative
History to determine (the main factor of statutory interpretation theory). Canons
are rules of thumb meant to assist the judiciary to figure our ambiguous language.
They are not meant to be binding rules, but more so mere guides to held the judicial
branch. Many times courts will look to legislative history if there is an ambiguity.
Legislative History includes committee reports, conference committee reports, floor
debates, or presidential signing statements. Some judges criticize Legislative
History because legislatures vote on the words of the statute, not on the history.
However, LH may shed some light on a legislative intent because when citizens
encounter law and consider everything, we assume that it comes from a single
author. This court must address the issues ruled upon by the previous courts.
(Issue 1, 2, 3).
Issue #1
Text says _____. However, this still leaves ambiguity because _____.
LH (depending on theory): state the cons, but using them because…
 Committee reports- apply the facts
 Conference committee reports- apply the facts
 Floor debates- apply the facts
 Presidential signing statements- apply the facts

Canons: state what the canon is and how it applies to our facts
 Textual canons
o Noscitur a Sociis
o Ejusdem Generis
o Expressio Unius
o Whole Act Rule
o Rule to Avoid Redundancy
o Golden Rule
 Substantive canons
o Avoidance canon
o Rule of Lenity
 Chevron Doctrine

Closing remark regarding which method of interpretation (text/LH/canon)

outweighs the other because of the (statutory interpretation theory we are using).
[Same analysis above for issues #2 and #3]
[Come to overall conclusion: reverse or affirm]

Justice Scalia (dissenting/concurring)

Argue for theory and what is important to look at: Issue #1, 2, 3 with same analysis
of text/LH/canons as above
PURPOSIVISM (BREYER)

Purposivism: Looks to Congress’ general aim or purpose in crafting the legislation (as
specific legislative intent is more difficult to divine)
- Democratically elected Congress enacts laws to achieve a purpose determined
to be beneficial to the public/community, courts and administrators should
obey
- Underlying assumption- Courts should presume Congress rationally fulfills
its apparent goals and that its work product is relatively coherent.
- Background purposes, legislative supremacy not only permits, but sometimes
requires Court to deviate from conventional meaning of the text.
- “function of the courts is to construe language so as to give effect to the intent
of Congress.” [American Trucking Ass’ns (U.S. 1940)]
- Purposivism: The FDCA’s “basic purpose – the protection of public health –
supports the inclusion of cigarettes within its scope.”
- better promotes public policy and our country’s democratic principles.
- The broad, overarching goal is more important than a literal interpretation.
- involves a court saying “given the general level of legislative intent, what do you
think Congress would have said if they had considered this specific question
- Start with the language of the text, if the text is ambiguous, go to the legis
history. If you can find a specific intent in the legis history, we apply that intent.
- If they fail to find a specific intent, rather than engaging in imaginative recon,
will examine the underlying purpose the legislator had, and try to apply that
purpose to the present facts.
- NOT translating the text…rather interpreting it to apply to what we know now
- Purposivists- when they find ambiguity, they apply the current facts to the
overarching purpose of the statute.
o apply what we know now to past statutes.
- Statutes need to be interpreted in accord with promoting public policy. This is
best accomplished by drawing in other sources to gain a better understanding
of the meaning such as: legislative history, purpose, and current values.
- unreasonable to think that Congress could think of every scenario that may
arise when enacting a bill
o The Constitution is a “living document” and the drafters did
not anticipate technology such as cars, planes, Internet, etc.
impacting the country and the effect the law they created upon
it.

Purposive Statutory Interpretation (718):

- The first thing that the Court ought to analyze is the text of the
statute itself and the language used. “Any conflict between the
legislative will and the judicial will can and must be resolved
in favor of the former.” Reed Dickerson. The Court must
 respect the role of the Legislature “as the chief policy-
determining agency of the society, subject only to the
limitations of the constitution under which it exercises its
powers.” At the same time, the Court must be “mindful of the
nature of law and of the fact that every statute is a part of the
law and partakes of the qualities of law, and particularly of
the quality of striving for even-handed justice.” The Court
must determine the purpose of the statute, and construe the
text to achieve that purpose such that the text is not given a
meaning it “will not bear” and the meaning would not violate
any clearly stated policy. In the ………………….. case, the Court
must look to the immediate purpose for which the statute was
enacted to address. The court should “put itself in
imagination in the position of the legislature.

- The court can use legislative history or other evidence “to develop
a coherent and reasoned pattern of applications intelligibly related
to the general purpose.”

(b) Purposivism
- The Mischief Rule, Lord Coke - Heydon’s Case, Eng. 1584:
o Courts should consider the following factors to interpret
statutes:
 1. What was the common law prior to the statute?
 2. What was the mischief and defect for which the
common law did not provide (necessitating a
statute)?
 3. What remedy has the legislature implemented to
cure the disease of the commonwealth?
 4. “The true reason of the remedy; and then the
office of all the judges is always to make such
construction as shall suppress the mischief, and
advance the remedy, and to suppress subtle
inventions and evasions for continuance of the
mischief, and pro privato commodo [(for private
benefit)], and to add force and life to the cure and
remedy, according to the true intent of the makers of
the Act, pro bono publico” [(for the public good)].

 Congress could not be expected to put everything into a statute.

- Examples:
o
o Following precedents and analyzing the method of
statutory interpretation will help interpret future
 cases in a similar method; avoiding further
uncertainties that linger. For instance, in Shine v. Shine,
the Court held support obligations to be non-
dischargeable because that had been the practice
historically. The Court in Shine analyzed the purpose of
the bancrupcy laws and reasoned that following the
plain meaning of the statute would bring about
absured results.
o Furthermore, in Holy Eternity Church, the Court held
the phrase “Labor of any kind” did not apply to a
pastor. The Court came to this decision by looking at
the intent of the statute, which was to stop the influx of
manual and cheap labor. By using Committee Reports
and the title of the Statute to come to the decision that
“common understanding of the terms labor and
laborers does not include preaching and preachers.”

Substantive/Whole Act Rule: Consider the whole act in trying to figure out the
interpretation. Cannot exclude any part of the statute, else will distort the
legislative intent.
- Titles: Consider this in cases of textual ambiguity and for
understanding intent/purpose of the statute (e.g. Holy Trinity).
- Preambles and Purpose Clauses: Help better understand the broad
purpose/intent of the statute.
- Rule to Avoid Redundancy: Every word/phrase adds something to the
statutory command. Don’t take an interpretation that makes another
provision, words, etc. meaningless.
- Consistent Usage: Interpret words that show up repetitively in a
consistent manner.
- Rule Against Interpreting a Provision in Derogation of Other
Provisions: One provision of a statute should NOT be interpreted in a
way as to derogate from other provisions within the same statute.

- Critique:
o Closer to a rule of men, perhaps, than a rule of law b/c
statutes depend on what any given judge takes the law to
be or to mean. Can be highly subjective and dependent on
the circumstances of the case.
 - The Golden Rule (judicial re-writing to avoid absurd
consequences) – Lord Blackburn – River Wear Comm’rs v.
Adamson, Eng. (1877):
o Give effect to the literally expressed intent of the
Legislature by
o construing the words of the statute with their ordinary
meaning,
o unless doing so would produce an inconsistency, absurdity
(contrary to the purpose of the statute), or “inconvenience
so great as to convince the Court that the intention could
not have been to use them in their ordinary signification,”
and, if such is the case, apply an alternative, plausible
meaning.

1. Scrivener’s error doctrine: “is this a typo or is this a think-o”? p 101

a. Rare. Obvious mistakes in transcription of legislature’s policies into words.
“where on the very face of the statute it is clear to the reader that a mistake of
expression (rather than of legislative wisdom) has been made.
b. Maybe statute, as written, doesn’t make sense given policy underlying the
provision (see U.S. v. Locke; J. Stevens, dissenting)
- U.S. v. Locke (U.S. 1985) “Prior to December 31” case- “while we will not
allow a literal reading demonstrably at odds with the intentions of its drafters, w/
respect to filing deadlines a literal reading of Congress’ words is generally the
only proper reading of the words. Dissent points to other errors in the text,
extrapolating “prior to” is also likely an error.

- Importance of punctuation: textualists use grammatical structure, punctuation to

decipher “plain meaning” of statute
TEXTUALISM (SCALIA)

Textualism: How would reasonable people understand the semantic import or

usage of the precise statutory language that Congress adopted?
- Legislative process is one of compromise, so we should rely on actual
text that was agreed upon, enacted.
- Apparent misalignment b/w text, messiness, is result of process of
compromise
- Protects minority stakeholders in leg process
- May force/encourage Congress to be clearer in leg’ive text it enacts,
b/c courts will take what Congress says seriously
o Courts’ reliance on text more likely to provoke Congress to
clarify ambiguous/imprecise statute
- Intentionalists- if there is an ambiguity they engage in imaginative recon.
o She does not do this.
- when judges interpret statutes, they must be bound to its original
understanding.
- the importance of the separation of powers
- plain meaning of the term keeps judges from interpreting the
statute in a way that they see to line up with their own views on
the topic.
- legislative history is not always a reliable
- hundreds of legislatures involved in the creation of a bill, and
discerning their collective intent would prove to be a difficult task
- statutory interpretation based on the context of the text and the
“ordinary meaning” provides certainty and predictability for the people
and judges.

The argument of plain meaning interpretation as favored by Justice Scalia has

several important principles that ought to be recognized. Statutory
interpretations

EXAMPLES:

 The Concurring/Dissenting view is believes that the text of the Statute

should be interpreted according to its original understanding. The original
understanding is the way that the text was understood by the people who
proposed, drafted, and ratified it. For instance, in Caminetti v. United States
two men who were charged with the violation of the Mann Act for
transporting their mistresses to another city. The act stated “taking girls
across state lines for the purpose of prostitution, debauchery, or other
immoral purpose is illegal.” The Court relied on the plain meaning rule
and found that even though the men were not transporting these women
 for prostitution purposes, they still violated the Act, reasoning that it was
not appropriate to look beyond the plain meaning of the words of the Act.
 Furthermore, in T.V.A v. Hill, the issue was whether the Endangered
Species Act applied to government projects that began prior to the
enactment of the Act. The Court concluded that protecting the
endangered species at all costs was the top priority of the Act and that
relying on the plain meaning made the most sense because it enforced
exactly what Congress intended when they enacted the bill.

A. Textual Canons
a. Set forth inferences that are usually drawn from the drafter’s choice of words
b. DO NOT determine interpretation bc for every canon there is usually also a
conflicting one—allow you to draw inferences about a word and its
relationship to other words in the statute
c. Ordinary Meaning:
i. What an ordinary person would interpret the word as. Turn to the
dictionary.
ii. Unhelpful if there’s more than one meaning. Sometimes dictionary
won’t help.
iii. Courts will assume that the leg uses words in their ordinary sense
iv. Technical, specialized subjects—like trade-specific words…adopt
specialized meaning of the word
d. Special Meaning: Statute already defined the word. If not the statute in
question, then perhaps another similar statute has defined it.
e. Associated Words
i. Noscitur a socii (“known by its associates”) Figure out meaning
from the other words around it. How is the word used in relation to the
others.
1. words travel in packs
ii. Ejusdem generis (“of the same kind/class”) Meaning of the word
can be clarified if there’s a list of words + a general category. (e.g.
Caminetti “any other immoral purpose” could be interpreted as
extramarital affairs.)
1. Relation of general and specific words—of the same kind, class
or nature
iii. Expressio unius et excluso ulterios (“inclusion of one means
the exclusion of others) Words omitted to indicate exclusion of the
other. Notion of negative implication. Enumeration of certain things in
a statute suggests that legislature had no intent of including things not
listed
a. Textualist critique of Legislative History
Illegitimate/simply not the law! Has not gone through constitutionally-mandated
process of bicameralism, presentment req’d by Article I §7
a. Breyer” “statute-is-the-only-law” argument misses the point. No one is saying
LH = statute, or that it is, in any strong sense, the law. Judge can’t interpret
words of ambiguous statute w/o looking beyond the words where words cease
to provide unequivocal guidance.
b. Unrealistic to think that Congress really understands holdings of cases it references.
“Heady feeling for a lowly staffer” – Scalia, Concurring in Blanchard v. Bergeron
c. Some actors may deliberately manipulate LH to circumvent the process
d. Concerns that judges acquire added policymaking discretion through use of LH b/c
LH is relatively elastic, open to interp.

 . Textualism (“New Textualism” or “Plain Meaning Rule”) (1980s to present)

o Policy issues:
 Rule of law, not of men. Legislative intent is illusory. “We do not inquire
what the legislature meant; we ask only what the statute means.” (Oliver
Wendell Holmes, 993z).
 Laws should be understandable by all, not the special interpretative
province of lawyers and judges.
 Why look to legislative history (the “recipe”) when you have the text (the
“food”)?
 (The judge in this model is a faithful agent of the text of a statute. S/he is
also a linguist or grammarian.)
 A strength of textualism is that it is objective and transparent; it is
democratic in that it allows the people to understand the laws.
 Critiques of Textualism:
o Language is ambiguous.
o Textualism can be blind to its own subjectivity.
o Textualism can seem cruelly detached from the consequences of its
opinions (see, eg, Easterbrook in the LSD case).
o “Professor James Brudney argues from the nature and structure of the
politics of legislation that Congress cannot enact statutes with the
degree of specification Justice Scalia [or Judge Keen in the Speluncean
Explorers] would require.” (811n2).

o Formalist theory of statutory interpretation, holding that a statute's ordinary

meaning should govern its interpretation, as opposed to inquiries into non-
textual sources.
 Legislative history may be consulted, but it should not be used to
determine a meaning in opposition to the plain meaning of the text.
Contrast to old textualism (Caminetti) where legislative hxy would not be
considered if the statutory text had a “plain meaning” or TVA v. Hill
approach where legislative hxy could trump an unambiguous meaning.
o Scalia’s approach to “plain meaning” is “the best textual understanding that
emerges from close analysis of statutory provisions that, at the outset, may
have seemed ambiguous, confusing, or at least complicated” (793).
 “’A text should not be construed strictly, and it should not be construed
leniently; it should be construed reasonably, to contain all that it fairly
means’” (779).
 In regard to using legislative history to interpret statutes. “It is neither
compatible with our judicial responsibility of assuring reasoned,
consistent, and effective application of the statutes of the United States,
nor conducive to a genuine effectuation of congressional intent to give
legislative force to each snippet of analysis, and even every case citation,
in committee reports that are increasingly unreliable evidence of what
the voting Members of Congress actually had in mind” (987’2b).
 In a footnote to an opinion (Hirschey v. FERC, 987n1) that set forth
Scalia’s views on committee reports, he detailed an exchange between
Senators Armstrong and Dole where Sen. Armstrong points out that the
report “is not the law, it was not voted on, it is not subject to amendment,
and we should discipline ourselves to the task of expressing
congressional intent in the statute.” Moreover, statutory text has gone
through the formal requirements of Art. I §7 (bicameralism and
presentment), unlike legislative history, which thereby has no authority
as law (989n2).
 Text should be interpreted to mean that which is:
o “(1) most in accord with context and ordinary usage, and thus most
likely to have been understood by the whole Congress which voted on
the words of the statute (not to mention the citizens subject to it), and
o (2) most compatible with the surrounding body of law into which the
provision must be integrated ... not permit[ing] any of the historical
and legislative material discussed by the Court, or all of it combined,
to lead ... to a result different...” Bock Laundry (Scalia concurring), see
Cases chart #C6.
o Frank Easterbrook:
 “’Imagine how we would react to a bill that said, “From today forward, the
result in any opinion poll among members of Congress shall have the
effect of law.” We would think the law a joke at best, unconstitutional at
worst. This silly “law” comes uncomfortably close, however, to the
method by which courts deduce the content of legislation when they look
to the subjective intent.’” (779n(f)).
 “Desires become rules only after clearing procedural hurdles, designed to
encourage deliberation and expose proposals (and arguments) to public
view and recorded vote. Resort to ‘intent’ as a device to short-circuit
these has no more force than the opinion poll – less, because the
legislative history is written by the staff of a single committee and not
subject to a vote or veto. ... It would demean the constitutionally
prescribed method of legislating to suppose that its elaborate apparatus
for deliberation on, amending, and approving a text is just a way to create
 some evidence about the law, while the real source of legal rules is the
mental processes of legislators.” In re Sinclair (994’2m & C14).
 See also Marshall, Cases chart #C8.