Fall 2022 Legislation and

statutory
interpretation
-Professor Rabkin
Table of Contents
INTRODUCTION: LAW AND CONSEQUENCES.................................................................................................................. 2
GENERAL.............................................................................................................................................................................. 2
SOUTH CAROLINA LETTER: AG’S OFFICE ON LAW OF STATE SEAL (2017).........................................................................................2
UNITED STEELWORKERS OF AMERICA V. WEBER (1979)...............................................................................................................3
KING V. BURWELL (2015)....................................................................................................................................................... 3
BOSTOCK V. CLAYTON COUNTY (2020)......................................................................................................................................4
CLASSICAL THEORIES OF LAW AND COURTS................................................................................................................... 4
NATURAL LAW APPROACH....................................................................................................................................................... 4
POSITIVIST APPROACH.............................................................................................................................................................4
THE DEBATE BETWEEN NATURAL LAW AND POSITIVISM.................................................................................................................5
LEX NON EXACT DEFINIT, SED ARBITRIO BONI RIRI PERMITTIT. –.......................................................................................................5
OLDER AMERICAN THEORIES......................................................................................................................................... 5
NATURAL LAW APPROACH / EQUITABLE OUTCOMES.....................................................................................................................5
THEORIES OF STATUTORY INTERPRETATION..................................................................................................................................6
Intentionalism..................................................................................................................................................................6
Purposivism......................................................................................................................................................................6
Textualism........................................................................................................................................................................6
Hart and Sack’s Theoretical Approaches.........................................................................................................................6
In application to cases.....................................................................................................................................................6
“LEGAL PROCESS” THEORY AND TEXTUALIST CHALLENGE.............................................................................................. 7
TWO ENDURING PERSPECTIVES..................................................................................................................................................7
HISTORICAL PENDULUM...........................................................................................................................................................7
LEGAL PROCESS THEORY DIRECTIVES..........................................................................................................................................8
LEGAL PROCESS THEORY CASES: CORRECTING LEGISLATIVE “MISTAKES”...........................................................................................8
CONCERNS ABOUT LEGAL PROCESS THEORY.................................................................................................................................9
CURRENT DEBATES / NEW TEXTUALISM......................................................................................................................................9
TEXTUAL CANNONS..................................................................................................................................................... 11
APPROACHES TO LEGISLATION.................................................................................................................................................11
GENERAL CATEGORIES OF CANONS..........................................................................................................................................11
A DEEPER DIVE INTO TEXTUALIST CANONS................................................................................................................................12
 Word Meaning.....................................................................................................................................................12
 Grammar Canons.................................................................................................................................................12
 Whole Act Rule.....................................................................................................................................................13
CASES................................................................................................................................................................................ 13
POSITIVISM AND TEXTUALISM.................................................................................................................................................14
NATURAL LAW AND LEGAL PRAGMATISM..................................................................................................................................14
FOUNDATIONAL CANNONS......................................................................................................................................... 14
GENERAL............................................................................................................................................................................ 15
INTERNATIONAL LAW PRESUMPTIONS.......................................................................................................................................15
LENITY PRESUMPTIONS..........................................................................................................................................................15
POSITIVISM CRITIQUES.......................................................................................................................................................... 16
SUBSTANTIVE CANONS AND CONTROVERSY................................................................................................................ 16
AN OUTLINE OF THE TYPES OF SUBSTANTIVE CANONS.................................................................................................................16
CONSTITUTION BASED CANONS...............................................................................................................................................17
Avoidance......................................................................................................................................................................17
Federalism Canons........................................................................................................................................................17
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EXTRINSIC SOURCES.................................................................................................................................................... 18
LEGISLATIVE HISTORY...............................................................................................................................................................18
Circumstances surrounding the introduction and consideration of legislation.............................................................18
Committee Reports........................................................................................................................................................18
BACKGROUND (COMMON) LAW.............................................................................................................................................19
PARALLEL PROVISIONS..........................................................................................................................................................20
The in pari materia rule.................................................................................................................................................20
Modeled or borrowed statute rule................................................................................................................................21
Presumption against implied repeals............................................................................................................................22
International Context.....................................................................................................................................................22
STATUTORY IMPLEMENTATION IN THE ADMINISTRATIVE STATE..................................................................................23
LAW IMPLEMENTATION IN THE ADMINISTRATIVE STATE...............................................................................................................23
PRIVATE CAUSES OF ACTION IN THE BUREAUCRATIC STATE...........................................................................................................23
MODERN APPROACH............................................................................................................................................................ 24
THE NONDELEGATION DOCTRINE IN THE ADMINISTRATIVE STATE..................................................................................................24
JUDICIAL DEFERENCE TO AGENCY LEGAL INTERPRETATIONS........................................................................................ 24
FRAMEWORK: SKIDMORE AND CHEVRON..................................................................................................................................25
EXCEPTIONS TO JUDICIAL DEFERENCE......................................................................................................................... 26
STEP ZERO: IS THE AGENCY ACTING WITHIN ITS DELEGATED AUTHORITY?.........................................................................................26
Should courts defer when the agency interpretation presents serious constitutional difficulties?...............................27
Does agency deference apply to issues of preemption?................................................................................................27
Levels of input from an agency......................................................................................................................................27
Deference in National Security and Foreign Affairs.......................................................................................................28

Introduction: Law and Consequences

General
 De Minimis Non Curat Lex - a common law principle whereby judges will not sit in
judgment of extremely minor transgressions of the law
o Legal maxim from antiquity
 Fiat Justitia Pereat Mundis – “Let justice be done, though the world perish.”
o From a Roman play. May or may not have actually been adopted by lawyers.
 What affects one’s choice of approach?
o Politics – whichever choice supports my political outcome
o Immediacy – we may be more or less willing to change items which have been
around for a long time then those which are a matter of current debate by
legislature
o Scale – Does the interpretation affect one law or many? Functionality vs. rigid
adherence
 Stables rules or pragmatism?

South Carolina Letter: AG’s Office on Law of State Seal (2017)

 Facts: The State Constitution requires the affixation of the Great Seal of the State, but this has
been sporadically neglected for many years and could affect up to 700 laws. What to do?
 Answer: The seal is mandatory, but substantial compliance with the mandate will likely be
sufficient in the courts.
o De Minimis Non Curat Lex

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 If this Constitutional issue isn’t mandatory, then you grant permission for other
elements to be interpreted as trivialities as well
o Fiat Justitia Pereat Mundis
 Do we throw out all of the laws?
 We can’t retroactively correct it b/c we would have to acknowledge that people
were punished for laws that weren’t certified at the time.

United Steelworkers of America v. Weber (1979)

 Facts:  
o Steelworkers union made an agreement with Kaiser to promote black employees. Normally this would be
done on the basis of seniority.
o No speculation about motives b/c they directly state that race is the consideration to have a more racially
balanced work force.
o Weber et al., sue b/c they allege that this policy showed preference to junior black employees over senior
white employees and violated §703(a) and (d) of Tittle VII
 Holding: Title VII's prohibition against racial discrimination does not condemn all private, voluntary, race
conscious affirmative action plans.
 Rationale: Justice Brennan – Consider the larger context not just words
o Spirit of the Statute - In 1964, Congress thought you could just prohibit discrimination and everything
would be fine. Since then, we have learned that there would be a lot of resistance. An entirely white
workforce is likely presumptive discrimination even if you don't openly practice discrimination.
Suggestive discrimination leads to pressure to improve the numbers. They might not even get
applications if they can't show that they have a diverse workforce.
o Language of §703(j) says that preferential integration would not be required. Congress could have said
permitted as well but did not.
o Legislative History:
 Dissent: Justice Rehnquist
o Language: Generally clear here, but the majority opinion basically disregards this clarity b/c it believes
that it would bring about an end at variance with the purpose of the statute
o Spirit of the Statute: To open employment opportunities previously closed. Plain language shows no
racial discrimination should be allowed.
o Legislative History: seems to show that it is designed to encourage hiring on the basis of ability with a
prospective (not retrospective) effect

King v. Burwell (2015)

 Facts: Petitioners are 4 Virginians who do not want to purchase health insurance. They say that Virginia's Federal
Exchange does not qualify as an Exchange established by the State under 42 USC §18031 so they shouldn't
receive any tax credits, making their cost of insurance more than 8% of their income and exempting them from the
coverage requirement.
 Holding: The tax credits are available in states with a Federal Exchange.
 Rationale: Justice Roberts
o The actual text seems to support the challenger’s claim that state and federal exchanges are different, but
this wouldn’t make sense in achieving Congress’s aims. The alternative is too destructive, so the policy
must be saved.
 Dissent: Justice Scalia (w/ Thomas and Alito)
o The words are unambiguous and intentional, so it is unnecessary for the court to “interpret” them.
Congress’s policy was to incentivize the state. "Context is a tool for understanding the terms of the
law, not an excuse for rewriting them."

Bostock v. Clayton County (2020)

 Facts: In each of the three cases, an employer fired a long-time employee shortly after the employee revealed that
they are homosexual or transgender, allegedly for no other reason.
 Issue: Whether Title VII protects an individual from being fired for being homosexual or transgender

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  Holding: Yes – Discrimination on the basis of sex includes discrimination for sexual orientation or gender
identity.
 Rationale: Sex has only to be a “motivating factor” for firing an employee. Justice Gorsuch argues that
homosexual attraction and transgender identity are indelibly connected to sex.
o Takes a textualist approach, though a relatively dif’t interpretation of it.
o Rejects what Congress thought at time of enactment.
o Disregards EEOC administrative input
o Logically consistent though acknowledges policy problems
 Dissent: Justice Alito (and Thomas)
o Gorsuch did not actually take a textualist approach and is “updating” an old statute to reflect the current
values of society.
o Congress did not rule out discrimination based on sexual orientation or gender identity in 1964.
References values of the time and dictionary definitions from the time.
 This is also not textualism b/c they’re surveying historical background.
o Precedent, stability

Classical Theories of Law and Courts

Natural Law Approach
 Law implements justice for the common good
 Appeals to the conscious of those bound by the law (ethical approach)
 Appeals to rationality
 Aquinas – Law is the means by which one wills the end.
o Law is the will of the sovereign, but only because it is well reasoned.
o If the law isn’t reasonable, it’s not really a law.
 Blackstone – The creator laid down laws of justice and reason and conforms to them.
o Laws exist to establish these boundaries

Positivist Approach
 The law is the law (disavows moral perspectives in general)
 Hobbes – follow the law or be punished
o Theorizes that men will constantly be at war w/o a sovereign. Laws helps preserve us
from ourselves
o Sovereign is not bound by the authority of law
o Judicial Goal: to interpret the reason of the sovereign
o May be some daylight between natural and positive law
 John Austin – Law is force applied by the highest sovereignty
o Law is what will be enforced. Nothing more/less.
o International Law doesn’t have sovereign  not real law.
 John Locke
o The legislature is the sovereign (supreme power)

The debate between Natural Law and Positivism

 Blackstone – No human law which conflicts with Divine law is obligatory or binding
o John Austin finds this to be nonsense. Preaches anarchy
o Law, without equity, tho' hard and disagreeable, is much more desirable for the public
good, than equity without law; which would make every judge a legislator, and
introduce most infinite confusion;  Better to have law without equity then equity
without law.
o Modern day Activism
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  John Austin – When we say a law is “good” or “bad” we measure it by some measure (likely
our understanding of natural law)
 John Locke – Limitations/Role of Legislative
o Govern by promulgated established laws, not to be varied for different people.
o Design laws for the good of the people
o Not raise taxes on the property of the people without the consideration of the people.
Role is guard property rights.
o Not transfer the power to anybody or anywhere else
 John Locke – Tyranny
o Tyrannical gov’t loses claim to control
o Rebels should only oppose unjust or unlawful forces

Lex non exact definit, sed arbitrio boni riri permittit. –

 When the law does not exactly settle something, it's left to the determination of a good
man. (Blackstone)
 You need to have someone good and just since there will inevitably be gaps
and you must trust their judgment when the law runs out.
 But when you live in a divisive time, this is not settling.

Older American Theories

Natural Law Approach / Equitable Outcomes
 Fed 78
o Takes a Natural Law approach
 No legislative act contrary to the constitution can be valid
o Court can liquidate and fix the meaning of two contradictory laws, but they cannot
exercise their will instead of judgment so that they substitute their pleasure for that of
the legislative body
o Judges take their guides for interpretation not from “any positive law” but “from the
nature and reason of the thing”
o Judges should interpret laws to mitigate the severity and operation of unjust and partial
laws AND act as a check on the legislative body who can expect a check from the
judiciary
 Joseph Story
o Common law embraces all the precedents and human wisdom of the past years. To
know it fully and be a capable lawyer, you need to have mastered general literature
from antiquity.
 Quick Answers since it should be intuitive
 Statutes were just made by a bunch of politicians in parliament and must be
integrated into common law so they don’t do much damage.
 Mark Twain
o Most people don’t have precise expectations for Congress but expect them to exercise
wisdom as their agent.
o The legislators amend out any accidental clearness or coherence
 Blackstone:

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 o If a statute's plain language produces absurd consequences contradictory to common
reason, a judge should conclude that the legislature didn't foresee that consequence and
void the statute as it produces that result.

Theories of Statutory Interpretation

Intentionalism
 The interpreter identifies and follows the original intent of the statute’s drafters
 Attentive to the enacting legislature’s specific intent with respect to the textual language at
hand
 What did the enacting legislature expect that the statute’s words would mean as applied to this
specific interpretive problem?
Purposivism
 The interpreter chooses the interpretation that best carries out the statute’s purpose
 Attentive to the more general intent or purpose behind the measure
 What purpose did the enacting legislature expect that the statute would serve, and how might
the statute’s language be construed to serve that purpose in this instance?
Textualism
 The interpreter follows the plain meaning of the statute’s text

Hart and Sack’s Theoretical Approaches

 The Mischief Rule – Four things to discern to interpret statutes
o What was the common law before?
o What mischief or defect did it not provide for?
o What remedy has parliament chosen to resolve the problem?
o What is the true reason for the remedy? Judges interpret the statute to advance that end.
 The Golden Rule
o Purpose: to declare the expressed intention of the Legislature even when it doesn’t
appear wise.
o Practice: Take the statute and construe it altogether while giving words their ordinary
significance unless they produce an absurdity.
 The Literal Rule
o If the language is plain and admits only one meaning, assume that’s what the legislature
intended.
o Clear terms should be enforced even if it leads to absurdity and mischief.
 The less we endeavor to specify by words, the more common sense can give meaning to human
words

In application to cases
Riggs v. Palmer (1889)
 Grandson was worried that his grandfather would change the will and leave him nothing, so he poisoned him
before that happened. Family sued to annul the portions of the will leaving property to the murderer.
 Issue: May a court depart from a statute’s clear text to avoid an absurd result?
 Holding: Yes. If applying a statute’s text literally would produce an absurd result, the court may construe the
statute as the legislature would have intended in that particular situation.
o Common Law Maxim: No one is allowed to acquire property by their own fraud or crime.
o Legislative Intent: To enable people to dispose of their estate as they wished, not to benefit murderers.
o Canons:
 A thing that the legislators intended is as much within the statute as if it were within the letter.

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  A thing which is within the letter of the statute is not within the statute unless it be within the
intention of the makers.
 Rationale Interpretation: Judges are to collect probable or rational conjectures from the law
only. Sometimes the meaning of the writer is restrained and sometimes enlarged. (avoids absurd
results)
 Equitable Construction: A case not within the letter of the statute is sometimes held to be within
the same meaning b/c it is w/in the mischief for which a remedy is provided.
 Dissent: We are bound by the rigid rules of law established by the legislature and not our conscience.

Holy Trinity Church v. US, Justice Brewer (1892)

 Church entered into a contract with a foreign rector which appeared to violate an Act forbidding the importation
of foreigners under labor contracts.
 Holding: It does not seem that Congress would have intended to denounce a transaction like this one. (Although
the statutory language is clear, Congress would not have intended the result.)
o Intentionalism
 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.
o The Golden Rule
 Aim to declare the will of Congress unless it is obviously absurd. (Christian nation obviously
would not stop ministers from entering the country.)
o The Mischief Rule
 Look at the evil which the act was designed to remedy (historical context)
 Examined notes from legislative record (first case on record)

Caminetti v. US, Justice Day, 1917

 Man travels to NV with his mistress and is reported by wife.
 Holding: Ct found this was an “immoral purpose” and was therefore forbidden under the MANN Act (White
Slave Traffic Act.)
o Ct chosen to ignore the title and legislative history of the act which suggested a narrower purpose.
o Relied on reaching an equitable outcome by using textualist approach (but interpreted words broadly)
 Dissent: cited Holy Trinity to note that the interpretation should be construed to execute the statutory purpose
even if the literal meaning said otherwise

“Legal Process” Theory and Textualist Challenge

Two enduring perspectives
o Behind the law there's reason, and so it's an appeal to those behind it cooperate it for the
good of the community.
 Judges ask whether the law is reasonable and make the law reasonable
 Judges and agencies are helpful partners in normative updates
 Legal Process Theory (1950s-1980s)
o Hobbesian view = Behind the law is the fear of punishment (or the fear of anarchy).
 Judges ask whether people had warning, whether the law is clear and stable (to
avoid anarchy).
 Rule of law virtues, greater institutional competency of the legislature

Historical Pendulum
o Medieval Kings – took oath to uphold all law (ancient ideas)
o Civil Code = modern view, grew in popularity around French revolution
o Modern fear that judges use common law to express their policy views
o  giving power to administrators
o WWII: Administrator’s rule (civil code)  authoritarianism

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 o Reaction  The law should be what people want it to be (Legal Process Theory)
o 1970s Reaction  Textualism (Scalia) and the dangers of activist judges
 Sovereignty
o England: Parliament (legislature) = sovereign
o US: Constitution is sovereign (not legislature)
 Thus, courts can decline to follow the legislature
 Purposivism and Intentionalism keep up the fiction that their goals are being
carried out

Legal Process Theory Directives

1. Apply directions of the statute to the case
2. Respect the Legislature as the chief policy determining agency, but appeal to reason since they
can make mistakes.
3. Decide what purpose ought to be attributed to the statute and interpret accordingly. Don’t
directly conflict with the words.
4. Words give rise to the hypothesis of purpose and are a limiting factor to check that hypothesis.
5. Do not allow words to subvert the intention of the legislature.
6. Don’t interpret statutes as a departure from prevailing policy unless they do so very clearly.
7. Assume the law was made by reasonable men. It’s meant to be rational. Stare Decisis
8. Give attention to legislative history and strive to develop a reasoned pattern of application.

Legal Process Theory Cases: Correcting Legislative “Mistakes”

Shine v. Shine, CoA 5th Circuit, 1986 – Interpret from common sense and evident statutory purpose
 Wife looking for alimony when ex filed for bankruptcy. Bankruptcy code excepted child/alimony payments from
discharge.
 Literal language of stat. (textualist) didn’t except this alimony which was from oral separation agreement (
which would have resulted in no support for family).
 Ct. stated that even if leg. uses confusing or mistaken words, an obvious mistake should
not be enforced, particularly when it overrides common sense and evident statutory
purpose.
 Ct. observed leg. history of why alimony was viewed as a duty that couldn’t be discharged.  Congress sought to
broaden bankruptcy law’s protection of families. Once the language from the House and Senate was combined,
ambiguity around the words “in connection” and a narrow interpretation unintended by either resulted.
 Ct had to determine the policy of Congress based on conflicting presumptions:
o Presumption 1: When faced with an ambiguity, you resolve it in favor of the debtor since the whole
bankruptcy proceeding is for their benefit.
o Presumption 2: The family should be protected if the main provider attempts to leave their obligation.

US v. Locke, Justice Marshall, 1985 – Follow the literal ordinary meaning of stat. when it is clear;
defer to leg.
 Confused by “filing date prior to Dec. 31st” (but told my gov’t official “by Dec 31”)
 Respect to filing dates and deadlines a literal reading of Congress’ words is generally the only proper reading of
those words
 Deference to the supremacy of the legislature, as well as recognition that congressmen usually vote on the
language of the bill, generally requires us to assume that the legislative purpose is expressed by the ordinary
meaning of the words used
 The phrase “prior to” may be clumsy, but the meaning is clear. It is possible they intended this arbitrary deadline.
 There’s a basic difference between filling a gap left by Congress’ silence and rewriting affirmatively enacted
rules.
 DISSENT: Stevens and Brennan: Observe the whole statutory scheme - Congress might have made a mistake -
No rational basis for omitting just one day from an annual period, and wouldn’t presume Congress to create a trap
for the unwary by omission
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In the Matter of Jacob, NY CoA, 1995 – Interpret dynamically with changing social policy
 Two petitions for adoption that were denied for not following within NY’s adoption statute. (Cohabitating
boyfriend/female partner)
 Literal interpretation was insufficient to overcome the humanitarian principle of securing the best possible home
for the child
 Patterns of amendments reveal expansion of the categories of persons entitled to adopt – strong policy assuring
that as many children adopted into suitable family situations
o Interesting b/c public policy is not as united here as in Shine v. Shine
 But Courts interpret beyond legislative intent since it seems the statute is susceptible to TWO constructions –
dynamic interpretation
 Canon: Where the language is susceptible to two constructions, the courts will adopt that which avoids injustice,
constitutional doubts, or other objectionable results. (Similar to avoidance canon)

Concerns about Legal Process Theory

 Legal Process Theory may be overly influenced by judicial value choices. No single
construction is inevitable or natural.
 Dynamic Statutory Interp Theory Approach: (related to legal process theory) changes in social
context and legal policies can alter a statute’s meaning, and in some cases can negate it
completely
 Benefits Formalism
o It is arguably more consistent with the structure of the US Constitution (i.e., with its
elaborative separation of powers, courts shouldn’t do their own lawmaking and negate
the separation)
o Making plain language findings is more within judicial competence than making policy
decisions
o The ordinary meaning of statutory language is the common understanding of what the
“rule of law” is.

TVA v. Hill, Justice Burger, 1978

 Snail Darter, Tellico dam, $100MM project
 Ct. held dam should be stopped b/c environmental law is clear and leg. intent of protecting endangered species
should be encouraged.
 Ct. looks at lang. and leg. history to find intent – affording endangered species highest protection; final version
got rid of all impediments to species protection (whatever the cost)
 Dissent: Justice Powell and Blackmun: 12 years of consistently expressed congressional intent to build the damn.
This is an extreme example of a literalist construction that isn’t required by the act and is adopted without regard
to its manifest purpose.
o Cites Holy Trinity Church to indicate that the outcome is really absurd given the intent to build the damn.
The act was too broad and needs amendment.

Current Debates / New Textualism

New Textualism
 Abandon legislative history; Courts shouldn’t be trying to determine legislative intent.
 Courts have no authority to apply a statute to a problem unless that statute’s language clearly
targets the problem at hand.

Scalia – Matter of Interpretation

 Common Law Courts in a Civil Law System: The Role of US Federal Courts in Interpreting
the Constitution and Laws
 “The rule of law is the law of rules.” – Scalia
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 o Common law has its place, but
o In a democracy, it’s more important that judges are constrained by the legislatively
enacted statutory law than that they “do justice” in individual cases
 Looking to “legislative intent” allows judges to impose their own views. Focus on the law.
o Legislative confirmation is less problematic.
o Democratic gov’t should focus on what the lawgiver promulgated, not what they meant.
 Gov’t by unexpressed intent is tyrannical
o “It is familiar rule, that a thing may be within the letter of the statue and yet not within
the statute, because not within its spirit, nor in the intention of its makers.” Holy Trinity
 Nothing but an invitation to judicial law making
o Exception: Mistakes of expression (i.e., scrivener’s error) is worlds away from saying
the legislature obviously over legislated (Green v. Bock)
 Textualism
o What an ordinary English speaker would draw from the apparent plain meaning of the
text.
 Still requires the ability to practically apply and integrate into what you know is
reasonable about America, the legal system, etc. (sort of a false promise that
you just look up dictionary definitions of the word to understate the statute)
o Not strict constructionism - which gives statutory words their stingiest ambit (should be
construed reasonably in context of the Act)
o Not nihilism - which reads words to mean anything and everything (limited range of
meaning)
o Not canonical - which can result in loading the dice in favor of a particular result
(though some which have stood the test of time might be defensible as rule of thumb
presumptions
o Most extreme application: There should be no “absurd results” exception since this is
allows for different interpretations  less predictability and objectivity

Green v. Bock Laundry Machine Company, Justice Stevens, 1989 – Imaginative Reconstruction
 Prisoner working at car wash on work release program was injured by large dryer and brough product liability
action. To impeach P, D brought forth evidence that P was a felon.
 Rule of evidence allowed for any civil party to be impeached in this way (only crim. D exempt).
 Ct. ruled impeachment was allowable.
 textual limitation of the prejudice balance to criminal defendants resulted from deliberation, not oversight
 Concurrence: Justice Scalia: Interpreting the rule this way was most consistent with ordinary usage, and it’s such a
modest tweak that textualism allows for it.
o i.e., disregarded plain meaning rule b/c he believed the rule was absurd as written, the absurdity was
unintended, and that justifies a departure from the plain meaning.
 Dissent: Justice Blackmun: Cites the congressional committee report, which arguably suggests that Scalia’s tweak
is not the most modest way to fix the problem.
 Imaginative Reconstruction: The problem with this approach is that it is challenging to
determine what the average member of congress thought about an issue.

PGA Tour v. Martin, Justice Stevens, 2001

 The ADA requires individualized analysis of specific modifications for a particular person’s disability.
 Here, the walking requirement is waived for Martin and he can use a golf cart.
 Analysis required determining whether the modifications would fundamentally alter the services (legislative
history analysis), which would occur if it (a) changed an essential aspect of the game, or (b) gave disabled players
a competitive advantage.
o Court holds that this change does not get to the essence of golf.
o Finds this holding consistent with Title II (racial discrimination)

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  Dissent: Justice Scalia and Thomas: Act is about forbidding equal access, not about providing an equal chance of
winning.
o Relevant question is whether this is actually a textualist argument. Even textualism requires an
understanding of context from (a) the rest of the statute and (b) the custom/business practice of the
industry

Textual Canons
Approaches to Legislation
 Pluralism: The Importance of Groups in Legislation
o Inherent but can be channeled in socially productive ways
o Strong interest groups can protect individuals against oppressive gov’t but they might
not be broad based enough to protect all societal interests
o Economic Approach: Legislation is a public good, so most people won’t participate and
will free ride on efforts of others. Large groups justify participation.
o Minority interest groups may actually be more adept at using the political process d/t
lack of organizational problems
 Public Choice Theory: A Transactional View of the Legislative Process
o Every choice is a zero sum b/c someone has to pay now or later (legislators face
conflicting interests)
o Deal making amongst interest groups at the expense of the general public (logrolling)
o Legislators act for the goal of reelection, so they compromise amongst conflicting
interest groups
 Proceduralist Approaches
o A system of checks and balances
o Procedural doors that bills must pass through (vetogates)
o Laws should be hard to enact (vs liberal theory which favors private autonomy and free
economic markets)
o Procedures shape public deliberation so they better serve the public good
 Institutional Theory
o Interdependence of decision makers
o Assumes stables preferences and full information of actors
o Modeled after a sequential game
 Economic Theories
o Assumes rationale actors seeking maximize their utility through reasonably designed
actions
o Assume law is generally at stable equilibrium, and parties don’t act to disrupt this
o Ex ante considerations of the debate btw textualists and contextualists

General Categories of Canons

 Textual Canons (intrinsic aids)
o Commonly accepted
o Inferences that are drawn from the drafter's choice of words, grammatical placement in
sentences, and their relationship to other parts of the statute
 Substantive Canons
o Intrusive category, rejected by textualists
o Draw from substantive principles, policies drawn from common law, other statutes, or
the Constitution
 Reference Canons (Extrinsic Source)
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 o Very debated
o Presumptive rules telling the interpreter what other materials might be consulted to
figure out what the statute means

A Deeper Dive into Textualist Canons

 Word Meaning
o Read the statute to determine if there is a plain meaning
 Plain meaning = the legal meaning statute has in light of the provision's
ordinary meaning, the statutory purpose, and structure, and any specialized
meaning the term has acquired over the years.
o Consult dictionary from the time to discern historical ordinary meanings
o Noscitur a Sociis = Words are known from their associates
 When two or more words are grouped together, and ordinarily have a similar
meaning, but are not equally comprehensive, the general word will be limited
and qualified by the special word
o Ejusdem Generis = of the same kind, class, or nature
 Where general words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in nature to those
objects enumerated by the preceding specific words. The doctrine is equally
applicable when the opposite sequence is found
 Particular words indicate the class
 General words extend the provisions of the statute
o Expressio Unius
 Words omitted may be just as important as those included
 Expression of one thing indicates the exclusion of the other
 Stands on the faulty premise that legislators considered all the options

 Grammar Canons
a. Punctuation Rules = Majority Rule: Punctuation is a less desirable, alternative aid in
statutory interpretation
b. Referential and Qualifying Words: The Rule of the Last Antecedent
i. Referential and qualifying words refer only to the last antecedent unless
contrary to the apparent legislative intent derived from the entire enactment
ii. Can be negated by the punctuation rule
iii. Can be negated by statutory context
c. Conjunctive and Disjunctive Connectors: The And versus Or Rule = Terms
connected by "or" are often read to have separate meanings and significance
d. Mandatory versus Discretionary Language: The May verus Shall Rule
i. "shall" = mandatory and excludes court's discretion
ii. Ordinary meaning considers may to be permissive or directive
e. Singular and Plural Numbers; Male and Female Pronouns
i. Singular and plural numbers are generally disregarded unless contrary to
legislative intent
ii. Gender pronouns are generally not followed either; though there is some
presumption that male pronouns include females but not the reverse
f. The Golden Rule (Against Absurdity) and the Nietzsche Rule
i. Golden = Interpreters should adhere to the ordinary meaning of the words used,
and to the grammatical construction, unless that leads to any manifest absurdity

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 or repugnance, in which case the language may be varied or modified, so as to
avoid such inconvenience, but not further
1. Absurd results exception to the plain meaning rule
2. Courts should also be willing to revise scrivener's errors
3. Many maintain that it is inconsistent with new textualism
ii. Nietzsche = Be humble. Consider how other people use language. Be helpful to
the project rather than hypertechnical.

 Whole Act Rule

o Legislature pass judgment upon the act as an entity. Thus, any attempt to segregate any
portion or to exclude any portion is almost certain to distort the legislative intent.
o Give laws a construction that will carry out the will of the legislature
o Critical assumption = coherence (internal consistency of language)
1. Titles
a. May be used to resolve uncertainty or for the correction of obvious errors
b. Generally not relied upon as important evidence of statutory meaning
2. Preambles and Purpose Clauses
a. Under the Whole Act Rule, American courts do not give the preamble any
more weight than other portions
b. It is valuable as a tool to uncover the purpose/context of the statute though
3. Provisos
a. Restrict the effect of statutory provisions or create exceptions
b. In cases of ambiguity, they are construed narrowly
4. The Rule to Avoid Redundancy
a. No provision should be construed to be entirely redundant
b. A construction which would leave without effect any part of the language of
a statute will normally be rejected
5. Presumption of Consistent Usage - and of Meaningful Variation
a. It is reasonable to assume the same meaning is implied by the use of the
same expression in every part of the law.
b. Identical words used in different parts of the same act are intended to have
the same meaning.
c. A change in wording denotes a change in meaning.
d. When Congress includes particular language in one section of a statute but
omits it in another, it is generally assumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion
6. Rule Against Interpreting a Provision in Derogation of Other Provisions
a. One provision of a statute should not be interpreted in such a way as to
derogate from other provisions of the statute

Cases
Nix v. Hedden – Is a tomato a fruit or vegetable? (textual canons, follows ordinary meaning)
 Since there is no evidence that fruit and vegetables have acquired any special meaning in trade or commerce, they
must receive their ordinary meaning. The principal use and common knowledge guide, even though little
evidence can be produced.
 Canon: Where Congress uses terms that have accumulated settled meaning, a court must infer that congress
means to incorporate the established meeting of these terms.
 Intentionalist approach
 Canon: If a technical term originates outside the legal domain, American courts start with the presumption that the
technical words can be explained by reference to the art or science from which they were appropriated.

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Babbit v. Sweet Home Chapter of Communities, Justice Stevens, 1995 – ordinary meaning
 Challenge to DOI’s interpretation of “harm” in Endangered Species Act (ESA). “Harm” included changes to
natural habitats that would have effect of killing animals – indirect or accidental actions.
 Ct. held that the interpretation was a valid exercise of DOI power.
o Look at ordinary meaning of harm – meaning injure – supports reasonability of claim
 Lower court relied on noscitur a sociis canon to show that the surrounding words connoted
application of “force” directed at a particular animal, but that’s rejected here since it would
effectively write “harm” out of the statute entirely.
o Look at broad purpose of ESA – TVA v. Hill
o Leg. history (committee rpts) also supports view – permit system shows anticipation of incidental harm
o Rejected application of the rule of lenity to review agency rules implementing a civil statute that has
parallel criminal sanctions
 Dissent: Justice Scalia, Rehnquist, Thomas: noscitur a sociis / ejusdem generis– harm meant direct action – and is
actually a term of art (general words are limited by more specific words) (statutory construction)
o Noted that the statutory provisions authorizing the regulation did not include three features
o Critiques purposivism of majority

US v. Marshall, CoA for 7th Circuit, 1990, Judge Easterbrook

 Ds questioned sentences based on disparities btw weight of pure LSD and weight of LSD+carrier.
 Ct. had to determine interpretation of “mixture or substance” – held that the sentencing guidelines allow for
weight of substance or mixture carrying drug.
o Textualist argument
 Ct. avoided const. questions (lenity)
 Pending leg. debate on changes are not a ground for avoiding what has already been enacted, as the new stat. may
not ever become law.
 Dissent: results from this interpretation can lead to widely different sentences and is arbitrary – same amount of
drug with different mixture can get different sentence
o Judge Posner: Although interpreting the CSA to exclude LSD’s carrier weight would render the phrase
“mixture or substance containing” nonreferential, this interpretation would be more equitable. Congress
should work out the absurdity now.
o Judge Cummings: This penalty scheme is a mistake of Congress that they are attempting to resolve

Positivism and Textualism

 Disavows moral perspectives in general
 Disregards ideas of “justice” as merely opinions, not law.
 Nearly all textualists are not fully positivist
o Textualism confines the discretion of judges in the text of the statutes but acknowledges
canons to help you interpret them.
o Varying levels of acceptance for the absurdity exception

Natural Law and Legal Pragmatism

 Both believe that there is some higher aim or ideal of the law than the actual text
 Natural law speaks towards general issues of justice and liberty
 Legal pragmatist has the sense of looking into how the law will work out (maybe more
utilitarian?)
 Substantive due process = grounded in natural law

Foundational Cannons
(Canons of Construction)

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General
 Based off common law
 Broadly accepted (not as much as textual canons)
 Scalia even accepts since they’re old and traditional.

International Law Presumptions

 Murray v. The Schooner Charming Betsy, 1804
o Cpt Murray seized a ship that he thought was in violation of trade law. Shattuck argued that he wasn’t
American so the law didn’t apply to him.
o Holding: The taking of the ship was erroneous b/c even though he was an American citizen, he acquired
commercial privileges of his domicile in a foreign country.
o Canon: An act of Congress ought never to be construed to violate the law of nations, if any other
possible construction remains.
 Congress must clearly and emphatically deny international law.
 Morrison v. Nat’l Austr. Bank, Justice Scalia, 2010
o Holding: The complaint should have been dismissed for the plaintiffs’ failure to state a claim.
o Rationale: Canon: There is a well-established presumption that, absent clear congressional intent,
legislation is only intended to apply domestically.
 Same canon, rephrased: Legislation of Congress, unless a contrary intent appears, is meant to
apply only within the territorial jurisdiction of the United States
 ALSO There is no language in the act suggesting congressional intent that it apply
extraterritorially.

Lenity Presumptions
 nullum crimen sine lege: No crime without law.
 If the punitive statute does not clearly outlaw private conduct, the private actor cannot be
penalized
o Fair Notice Justification: The state may not impose penalties on people without clearly
warning them about the unlawful conduct and its consequences.
 McBoyle v. US
 Strictly conveyed a statute against stealing motor vehicles so that he was not convicted
for stealing an airplane under the statute.
o Mens Rea Justification: If the statute is really ambiguous, the perpetrator couldn’t have
the proper mens rea since he didn’t even know what he was defying.
o Separation of Powers Justification: Congress cannot delegate law making abilities to
judges and prosecutors, because the moral condemnation inherent in crimes ought
only to be delivered by the popularly elected legislature.
o Efficiency Justification: Normal interpretation of criminal statutes would promote a
more orderly, less costly devpt of crim law w/o unfairness.
 Muscarello v. United States – the decline of lenity
o Convicted for carrying a firearm while trafficking drugs after a gun was found in his locked glove
compartment.
o Holding: Neither the statute's basic purpose nor its legislative history support circumscribing the scope
of the word "carry" by applying an "on the person" limitation.
o Rationale: ordinary meaning and congressional intent – rejected No crime without law.
o Dissent: Justice Ginsburg and Scalia: The word “carry” is ambiguous d/t its multiple uses through
history and to the present day, so it’s not clear what Congress intended. Under the rule of lenity, it should
be construed in the D’s favor.
 Judgment of Nuremburg Trial
o Ds argue that there can be no punishment of crime without a pre-existing criminal statute.
 This maxim has no place in this context. It is intended to deal justice, not limit sovereignty and
Germany understood that as the attacker it was doing wrong when it invaded other countries.
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  General Treaty of the Renunciation of War (1928) clearly stated that contracting parties agreed
to (I) condemn recourse for war for solving controversies and (II) would only use peaceful
means.
o This maxim is a general principle of justice not meant to limit sovereign power. It would be unjust to let
the criminal go unpunished.

Positivism Critiques
 People start to realize that even in the law there is tyranny
o Opens up the door to irrationality, tyranny, but the alternative of going right to justice
cannot always be done either.
 Statutory Lawlessness - Radbruch
o National Socialist ‘law’ intended from the beginning to extricate itself from the
essential requirement of justice (i.e., equal treatment of all) and therefore lacks
completely the very nature of law.
o An order is an order and the law is the law
 Statutory lawlessness was a contradiction of terms under this idea
o It has caused destruction in WWII  Concludes that law must have some sort of
natural law to be binding
 One line of distinction, however, can be drawn with utmost clarity: Where
there is not even an attempt at justice, where equality, the core of justice, is
deliberately betrayed in the issuance of positive law, then the statute is not
merely ‘flawed law’, it lacks completely the very nature of law.
 Does this change during war? Some argue that there’s no higher power than the
sovereign while at war. (Radbruch, German defense lawyer)
o We need to arm ourselves with considerations of legal form. Justice is the end, but legal
form is an essential component.

Substantive Canons and Controversy

An Outline of the Types of Substantive Canons
 These canons are more controversial and often appear to be more partisan.
 Constitution-Based Canons
o Separation of powers
o Federalism
o Due process
 Common Law Based Canons
 Statute Based Canons
o General Canons
o Process Canons
o Specific Statutory Subject Areas

Constitution Based Canons

Avoidance
 When one interpretation would raise serious constitutional problems, choose the one that
would not.
 Avoid interpretations that would render a statute unconstitutional or that would raise serious
constitutional difficulties.

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 o Not applicable if statute would clearly survive constitutional attack, or if statutory text
is clear.
o Courts construe criminal penalties narrowly enough so that there is no question of the
statute's constitutionality as constructed.
 Critiques (Judge Friendly)
o Opens the door for judicial activism which is anti-democratic and unhealthy for the
judiciary.
 This appears to happen in the cases below where they do not identify the real
constitutional boundary that they are trying to avoid crossing but instead argue
there’s a zone where they shouldn’t get close.

o United States v. Witkovich, 1957, Justice Frankfurter - Instead of declaring stat. unconst., Ct. will
re-write stat. to avoid const. issues.
 Govt’s questions to an Alien subject to deportation were NOT authorized by the Act. -- Construing clause (3)
of § 242(d) in the context of the entire Section and of the scheme of the legislation as a whole, with due
regard to the principle of so construing statutes as to avoid raising constitutional questions, the
information an alien is required to furnish under clause (3) relates solely to his availability for deportation.
 Follow restrictive meaning (for what appears to be plain words as may be indicated by the Act as a whole, by
legislative history or by the rule of constitutional adjudication) when a broader meaning would generate
constitutional doubts
 When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality
is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is
fairly possible by the which the question may be avoided – if so, then do so
 Also criticizes the “tyranny of literalness” (similar to critiques against positivism)

o National Labor Relations Board v. Catholic Bishop of Chicago, 1979, Justice Burger
 Schools operated by a church to teach both religious and secular subjects are not within the jurisdiction
granted by the National Labor Relations Act, and the NLRB was therefore without authority to issue the
cease-and-desist orders against respondents.
 Neither the (1) language of the statute nor (2) its legislative history disclosed any affirmative intention by
Congress that church-operated schools be within the NLRB's jurisdiction, and, absent a clear expression of
Congress' intent to bring teachers of church-operated schools within the NLRB's jurisdiction, the Court will
not construe the Act in such a way as would call for the resolution of difficult and sensitive First Amendment
questions.
 Aggressive framing of avoidance canon

Federalism Canons
 A statute should not be construed in a manner that would alter the usual constitutional balance
between the states and the federal government, unless Congress’s intent to do so is
unmistakably clear in the language of the statute.
 Gregory v. Ashcroft, 1991, Justice O’Connor – Ct. follows clear stat rule to displace trade
State reg., the fed Stat. purpose must be clear
o Missouri Constitution provision provided a mandatory retirement age of 70 for most state judges. The
judges brought an action against MO governor, alleging that this provision violated the federal Age
Discrimination Employment Act and the EPC of the 14th Amend
o Constitutional problem with applying the Age discrimination law to the state govt – powers reserved to
the states – dealing with dual sovereignty
o Not saying that Congress can’t do this – Congress has to be EXPLICIT – clear statement rule
o Justice Scalia voted with the majority here  even he believes there can be some canons.
 BFP v. Resolution Trust Corp. – There should be clear stmt from Congress to authorize an
unprecedented intrusion into trad. State authority
o There was a foreclosure sale for a very small fee – Scalia interprets the statute that “reasonably
equivalent value” does not mean “market value”

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  This is not a textualist argument or even a constitutional one; he firmly relies on the Ashcroft
rule for a super-strong presumption that Congress doesn’t mean to interfere with existing
balance of state-federal powers.
o Scalia argue that Foreclosure proceedings done by state law and local officials
 Bankruptcy, federal law, should not displace local activity
 Congress did not mean to displace state rules – if intended to do so, would have done it clearly
and explicitly
o Taxing Power is in the hands of Congress But power to regulate property generally falls under state law

Extrinsic Sources
 Extrinsic to the common law of how we do statutory interpretation
 Legislative history is the most important extrinsic source since there is a record of the debates
going back to the first congress (more important that things outside the statute and outside the
common law of statutory interpretation)

Legislative History
Circumstances surrounding the introduction and consideration of legislation
 Leo Sheep v. US, Justice Rehnquist, 1979
o Does the Government have an implied easement to build a road across land that was originally granted to
the Union Pacific Railroad under the Union Pacific Act of 1862
o Holding: Court maintained the rights of the private land of the Sheep Company – there was no implied
easement – and if the government wanted the land, they would have to compensate the land owner
o Looked at congressional intent or legislative purpose in passing the Act
 Common Law: Gov’t doesn’t have access to this equitable remedy. As the sovereign it has
eminent domain.
 Congressional Intent: While it may have been brought up in negotiation, it is presumed that the
right of easement was left out of the Act because there was a presumed right to eminent domain
use
 Importantly, the government has never been granted this right in any prior case where
checkerboard land grants were at issue
o The gov’t converted gov’t land to private land in the 19th century and is now trying to take that back. This
would result in questions of the gov’ts credibility, which shouldn’t happen easily.
 Thus it does not apply the canon of construction: When grants to federal lands are at issue, any
doubts are resolved for the gov’t, not against it.
 Since this was the common law doctrine at the time, those making the legislation
would have been aware of it and could have contracted around it.
 Imaginative Reconstruction: to put oneself in the mindset of the 1862 Congress.

Committee Reports
 Collective statements representing the best-informed thought about what the proposed
legislation is doing.
 Authoritative legislative history
 Sometimes ambiguous, sometimes smuggles in other statements
 Not approved by the house which enacts the bill, routine deference
o Scalia - "Let me just make the point that this 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."

 Blanchard v. Bergeron, Justice White, 1989

o Statute did not define “reasonable” fee, so Court is looking at whether an award must be limited to the
amount provided in the contingent fee agreement

18
 o Court held that an attorney's fee allowed under 1988 is NOT limited to the amount provided in the
plaintiff's contingent-fee arrangement with his counsel - To hold otherwise would be inconsistent with
the statute, In this case, the Court looked at reports that refer to 12 factors set forth in a previous SC case
assessing the reasonableness of an attorney’s fee award.
o Automatic ceilings were inconsistent with the statute, it’s policy and purpose.
o Committee reports were heavily relied upon to discern legislative intent of “reasonable”
o CONCURRENCE (Scalia) – agrees with result, but not follow legislative history – “influence judicial
construction”

 Carr v. US, Justice Sotomayor, 2010 – Looked at plain language then legislative history
o Can a person be prosecuted under the Sex Offender and Registration and Notification Act when the
defendant's offense and interstate travel both predate the Act's enactment?
o Ct. took narrow approach that interpreted act to apply only if travel/failure to register took place AFTER
enactment.
o Looked at present tense of verbs used – other stats use past-perfect tense if they want to include pre-
enactment activity
o Leg. history show that it was only meant to include post-enactment activity
 It was not a stand alone response but part of a broader scheme
o Concurrence: Scalia the plain language of the statute reveals the same outcome. The legislative history
was not necessary.

 Pepper v. Hart, House of Lords, 1992

o Issue: May parties introduce parliamentary material to aid in the construction of legislation that is
ambiguous or obscure or leads to an absurdity?
o Holding: English courts do not look at legislative history. If they looked at some, they’d have to look at
all of it (potato chip theory). This is undignified for judges who should be the masters of the common law
and would be costly.

 Kosak v. United States, 1984, Justice Marshall

o Kosak seeks to sue the gov’t under the Federal Tort Claims Act for damage done to his art in customs.
o Court refers to 1946 report. The Holzoff report came from draftsmen but was not part of the final statute.
 Courts shouldn’t quote lobbyists to interpret statutes. It’s inconsistent with the majesty of law.
o However, even a new textualist could agree with the majority since there is the super strong presumption
against waivers of federal sovereign immunity.
 Scalia would defend the departure from textualism into the substantive practice of providing
state immunity by noting that it efficiently protects resources, it’s a long-standing rule that
should be maintained for the sake of continuity.

Background (Common) Law

 Traditional Rule: No statute is to be construed as altering the common law farther than its
words impart.
o Bostock = example of how the judiciary has evolved away from this practice of
narrower interpretation.
 Common law is generally an important extrinsic source for interpretation of statutes and serves
a gap filling role for older, general statutes

 Smith v. Wade, Justice Brennan, 1983 – Courts look to modern common law to fill in the
gaps of unclear statutes
o Prisoner sued four guards after assault by cellmates and guards did nothing about it though they knew or
ought to have known that such an assault was likely to occur
o Issue: Should ct. adopt the CL on awarding punitive, where actual malicious intent was NOT needed
 Common law in 1871 held that punitive damages did not require showing of actual malicious
intent  could be awarded on negligence, recklessness or other culpable conduct short of actual
malicious intent

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 o Court adopted the modern common law to award punitive damages: “We are content to adopt the policy
judgment of the common law.”
o DISSENT: looked at the common law of 1871 – an award of punitive damages included a requirement of
ill will; policy; cites textualist argument as a weaker support since textualism wasn’t a rallying cry yet.
He has to back up a textualist argument with historical info and policy.

 Flood v. Kuhn, Justice Blackmun, 1972 – Interpret by following stare decisis

o Dynamic statutory interpretation – reaching what ct. believes is the appropriate policy result
o Baseball was exempt from antitrust laws while other sports weren’t; changes led to baseball engaging in
interstate commerce more frequently.
o Holding: The orderly way to eliminate error or discrimination is by legislation and not by court decision.
 Congress had not yet intended to apply antitrust to baseball
o Dissent: Justice Douglas and Brennan: meaning of commerce had changed since old cases so the holding
relied upon is a “derelict” in the stream of law that should be removed.

 Montana Wilderness Assoc. v. US Forest Service, CoA 9th, 1981 – Follows plain language and
natural reading of statute.
o Repeals by implication aren’t favored, leg. intent must be clear and manifest
o Ct. examined actual lang. of stat. and leg. history
o Language
 Public lands – certain lands in Alaska
 National Forest System – not defined, looked to other indicia-rest of stat.
 Look at whole act
o Issue: May the absence of significant debate or legislative history regarding an ambiguous statutory
provision be considered evidence that the statutory provision was not intended to effect a major change
in the current law?
o Holding: Yes - The Alaska National Interest Lands Conservation Act is limited in its application to the
state of Alaska and so has no relevance to this case.
 Follow Failure of the Dog To Bark Canon – when no one in the leg. discussion says that an
important policy is being changed, a ct. should presume that big changes aren’t intended
o Ambiguous leg. history gives slight support to the D’s interpretation that § 1323 applied nationwide – it
is not merely sufficient to overcome the actual language of the statute, which is more naturally read as
applying only to Alaska
o Problems:
 The judge did his own research which means that he could have produced info not available to
the parties.
 Cites something a senator said subsequent to the passing of the bill (not voted upon)
 Montana Pt 2. – Ds move for reconsideration based on new legislative history
o Holding: Yes. Legislative history subsequent to the enactment of a statute is entitled to significant
weight if it is clear that the authors of the legislative history considered the relevant issue. 
o New textualists give subsequent legislative history little weight since its prone to the possibility of abuse
d/t less congressional monitoring

Parallel Provisions
 Sometimes judges are interested in what was done in other statutes b/c there is an underlying
understanding that consistency and coherency is desirable.
o Generally, this is a relatively weak argument since ambiguity can remain.
o Can help reveal what lawmakers likely intended

The in pari materia rule

 Other statutes might use the same terminology or address the same issue as the statute being
addressed
 Limitations:
o There may be multiple similar statutes that are interpreted differently
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 o The new statute may be subtly different (and arise under different political context)
o May undermine deliberate legislative compromises
o Ridgway v. Ridgway
 The Act's policy that the statutory benefits actually reach the designated beneficiary and that the
insurance be operated on a national level clashes with the state family law and supersedes it.
 Federal Servicemen’s Group Life Insurance Act v. State divorce decree  serviceman could
determine where he wanted the money to go.

 Cartledge v. Miller, 1978 – federal legislation doesn’t supersede state police powers
o Cozart owed child support payments when he retired. His pension manager filed suit to enjoin the
enforcement since the pension mandate said benefits couldn’t be assigned or alienated
 Implied exception for child support?
o Holding: Yes - A literal interpretation of the words of a statute are not always a safe guide to its meaning
and should be disregarded when it defeats the manifest purpose of the statute as a whole.
 Congressional intent: for employee benefits to supersede all related state laws, but not to
preclude the ancient family law right of support
 Presumption against superseding the basic police powers of the state with federal
legislation unless that was the clear and manifest purpose.

 Lorillard v. Pons, Justice Marshall, 1978 – Congress incorporates prior common law
interpretations when reenacting prior laws.
o Age Discrimination in Employment Act – authorizes Ps to bring suit but doesn’t address the jury issue.
Does the right exist?
o Holding: Yes. Although the act doesn't directly grant a right to a jury trial, the structure of the act
demonstrates a congressional intent to grant such a right.
o Presumption that congress is aware of the administrative or judicial interpretation of a statute and adopts
that interpretation when it reenacts a statute without change AND when Congress adopts a new law
incorporating sections of a prior law.
 Dispositive here
o “legal or equitable relief”  presumption that where words are employed in a statute which had at the
time a well-known meaning at common law, they are presumed to have been used in that sense unless
context compels the contrary.

Modeled or borrowed statute rule

 Another statute might have been the template from which the statute in issue was designed
 Newer statutes should be interpreted consistently with the older statutes upon which they were
modeled (unless strong indication to the contrary)
 Mechanical Jurisprudence Critique: denies the duel function of the courts (law and equity) and
can produce absurd results

 Zerbe v. State, 1978

o Zerbe’s complaint against him was dismissed, but the judge was not aware  arrest 5 months later 
suit for negligence against the gov’t.
o State argued that the suit was barred by arising out a state version of the federal tort claims act (against
false imprisonment, false arrest)
o Holding: It was negligent record keeping rather than false imprisonment which caused Zerbe’s injuries,
so his suit is not barred.
o Rationale: Consider case law (from other districts)
 Duenges v. US
 Majority holding: Gov’ts negligence was an actionable wrong upon the resulting injury
in false arrest and imprisonment.
 Quinones v. US
 Minority holding but more persuasive: Although the harm was false arrest and
imprisonment, the cause of action sounded in negligence

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  Policy: No justification for immunizing gov’t for exercising due care.

Presumption against implied repeals

 There might be a later statute possibly changing the implications of the statute being
interpreted
 Whole Code Coherence  presumption that statutes should be reconciled (disfavors repeals)
 Morton v. Mancari, Justice Blackmun, 1974
o Class action brought on behalf of non-Indians working in the Bureau of Indian Affairs
o Holding: Indian preferences were not repealed by the EEOC Act of 1972.
o Rationale:
 Federal policy of providing a unique legal statutes to Indians
 It is improbable that the same Congress which approved the additional, similar Indian
preference laws condemned this one.
 Indian preferences have been exceptions to executive orders for years
 Repeals by implication are not favored. They should only be given when the earlier and later
statutes are irreconcilable (which isn’t the case here)
 Canon: Where there is no clear intention otherwise, a specific statute will not be controlled or
nullified by a general one, regardless of the priority of enactment.
o Dissenting thought: Congress previously showed itself able to exempt Indians from antidiscrimination
laws. The fact that it didn’t do so here may mean it was intentional.
 Expressio Unius: The express mention of an item excludes others

International Context
 Vienna Convention on the Law of Treaties
o Purposes: (1) to have a comprehensive treaty that standardized the understanding of
various international norms (to codify common law), and (2) to standardize treat
interpretation
o General Rules of Interpretation
 Plain meaning rule in good faith (not too literal and takes context + purpose into
account)
 Context (preambles and annexes)
 Somewhat downplays significance of subsequent agreements, practices, and
relevant rules of international law somewhat
o Supplementary Means of Interpretation: preparatory work (the minutes) and
circumstances (legislative history)
o Obligation not to defeat the object and purpose of a treaty prior to is entry into force
o Formulation of Reservations: Reservations can’t be made if they’re incompatible with
the object and purpose of the treaty.
 Roper v. Simmons, Justice Kennedy, 2005
o Whether it is permissible under the 8th and 14th Amendments to execute a juvenile offender who btw 15-
18 years of age when he committed a capital crime.
o Rationale: Discuss Human Rights Committee, EU, Council of Europe, and emerging consensus across
countries that people < 18 shouldn’t be executed
o Dissent: Scalia: It’s not the world’s constitution; it’s our own. Why reference other countries at all?
o Looking outside your jurisdiction
 More reasonable to look at other states since they’re founded in the same constitution w/ same
common law heritage
 Suggestive but not authoritative

Statutory Implementation in the Administrative State

Law Implementation in the Administrative State
 Gov’t agencies issues rules (designed to implement, interpret, or prescribe law or policy)
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  They may also make orders, which are the final disposition of a controversy around the statute
or agency rules
 Agency decisions are subject to the legislative veto
o Negative Veto Provisions – effective unless disproved of
o Positive Veto Provisions – not effective until approved
o Laying over – decisions don’t go into effect until a certain time period so that the
legislature has the opportunity to study and take action
 Immigration and Naturalization Service v. Chadha
o INS approved Chadha’s request to suspend his deportation, and the House vetoed the decision.
o Holding: Congress may not promulgate a statute granting to itself a legislative veto over actions of the
Executive branch. To hold otherwise violates separation of powers.
 Concurring: Congress violated the separation of powers here, but the use of legislative veto is a
legitimate use of their power as well.
 Dissent: Legislative vetoes are essential for maintaining the separation.
o Note: The majority’s ruling allows agencies to crank out what are basically laws without interference
from Congress. The court here might consider agencies the experts, and not want interference from
Congress.

Private Causes of Action in the Bureaucratic State

 Private right of action: Determines whether you can privately sue the people that the agency
would otherwise be regulating (even when the statute doesn’t explicitly set forth a private right
of action)
 Substantive Policy Canons:
o Separation of Powers: Presumption against private rights of action
 Increases agency power
o Due Process: Presumption in favor of judicial review, especially for constitutional
questions, but not for agency decisions not to prosecute.
 Judicial review maintains a limitation on agencies, but not when they decide not
to prosecute.
 Nader v. Allegheny Airlines – absence of remark on private right of action doesn’t eliminate it
o Relatively comprehensive regulatory schemes do not necessarily represent an implicit desire by Congress
to eliminate other causes of action under federal statutes or state law.
o Holding: The Federal Aviation Act did not preempt Ralph Nader’s common law action for fraud and
misrepresentation
 J.I. Case v. Borak – implied private right of action in general statute
o Holding: The Court held that the Securities Exchange Act created an implied cause of action for private
parties.
o Rationale: The Act’s general authorization of federal court jurisdiction carried with it the creation of a
cause of action for private parties. And this better carried out the statute’s purpose for the protection of
investors.
 Cort v. Ash, Justice Brennan, 1975 – presumption against a private right of action
o Four factors relevant to determine if a private remedy is implicit in a statute not expressly providing one
 (1) Is the P one of the class for whose special benefit the statute was created?
 (2) Is there any indication of legislative intent either to create or deny a remedy?
 (3) Is the remedy consistent with the underlying purposes of the legislative scheme?
 (4) Is the cause of action one traditionally relegated to state law so that it would be inappropriate
to infer a cause of action based solely on federal law?
 Four factor test over-ruled in Touche Ross
 Cannon v. University of Chicago, 1979 –
o Holding: notwithstanding Title IX's failure to expressly authorize a private right of action, the intent of
the statute was to provide persons injured a private right of action.

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 o Title IX did not indicate an intent to deny a private right of action and an award of individual relief was
sensible and necessary to the enforcement. Applied questions from Cort v. Ash.

Modern Approach
 Thompson v. Thompson, 1988
o Holding: the Act did not create an implied cause of action in federal court to determine which two
conflicting state custody decrees is valid.
o Rationale: Used the Cort/Cannon analysis to examine the structure of the act and legislative history
o Concurrence: Justice Scalia in judgment but not approach
 The analysis should not have touched Cort/Cannon
 Touche Ross overruled the four-factor test and established that the only relevant consideration
is whether Congress intended to a create a private cause of action.
 Court has no authority to imply a cause of action no intended by Congress
o Subsequent cases have followed Scalia’s approach to skeptically look for affirmative evidence of
congressional intent to create a private right of action.
 Franklin v. Gwinnet County Public Schools, 1992
o Holding: The implied right of action created in Cannon permits claims for damages in Title IX cases.
o Rationale: once a cause of action has been inferred, the Court presumes the availability of the claim
unless Congress has expressly indicated otherwise
 This doesn’t expand judicial power
o Concurrence: Scalia: BUT implied rights of action needn’t be given broad readings.
 Davis v. Monroe County Bd. Of Educ, 1999
o Holding: expanded the Title IX cause of action to include sexual harassment by other students under the
supervision of the school system
o Dissent: Justice Kennedy, Scalia, Thomas: The court shouldn’t imply a private cause of action for
damages unless it can demonstrate that Congress manifestly intended to create the implied cause of
action.
 The institution should clearly be on notice about the terms and conditions of its monetary
liability.

The Nondelegation Doctrine in the Administrative State

 The legislature cannot delegate its inherent lawmaking powers to agencies without providing
specific standards the bureaucracy shall apply in administering the delegation.
o Liberal standard, now treated as a canon of statutory interpretation rather than an
enforceable constitutional doctrine
 Criticisms:
o Legislators avoid hard political choices by delegating blanket authority

 Trump v. Hawaii, Justice Roberts, 2018 – separation of powers case

o The Immigration and Nationality Act gives the President authority to restrict the entry of aliens if he
finds that their entry would be "detrimental to the interests of the US.” Relying on that delegation, the
President concluded that it was necessary to impose restrictions on nationals of countries that do not
share adequate info for an informed entry determination
o Ps claim this is religious gerrymandering.
o Whether the President had the authority under the Act to issue the Proclamation, and
o Whether the entry policy violates the Establishment Clause of the First Amendment.
o Holding: The Gov’t set forth a sufficient national security justification to survive a rational basis review.
o Notes:
 How much power does the judiciary have to review the decision of the executive on matters of
national security?
 There’s no legal status of requests made on campaign or on Twitter. Not even as formal as
Congressional Floor Speeches.

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 Judicial Deference to Agency Legal Interpretations
 Executive Dept Interpretation of Wiretapping Authority
o Not presumptively reviewable. This instead was a debate between academics and the Department of
Justice.
o DOJ: Congress has authorized the use of military force to president after the 9/11 attacks.
 It was a broad declaration --> President took that to mean he was authorized to do things of
lesser weight (i.e., monitoring) than force as well.
o Academics: This is a dif’t type of force altogether.
o Gov’t sides with Justice Department (No judicial review  No binding precedent)

Framework: Skidmore and Chevron

 Skidmore v. Swift, Justice Jackson, 1944
o Skidmore’s staff were on call. Did the Fair Labor Standards Act requirement for overtime pay apply?
o Holding: The Administrator's practice and recommendation were not a "binding" interpretation of the
statute but were entitled to "respect" as they "constituted a body of experience and informed judgment"
 Power to persuade
o Rationale: Supreme Court was the expositor of the law, but when interpreting vague or ambiguous
regulatory statutes, the Court should be open to agency input and should accept the interpretation if it
was within the range of possible meanings.
 General Electric Co. v. Gilbert, Justice Rehnquist, 1976
o Female employees challenged the disability plan which didn’t include benefits for disabilities arising out
of pregnancy under Title VII for sex discrimination.
o Applied Skidmore level deference and found that the 1972 EEOC regulation replied upon by the Ps
conflicted with an earlier position and was not contemporaneous with Title VII and so did not receive
deference.
 Conflicting agency reviews reduced deference

 Chevron USA v. Natural Resources Defense Council, Justice Stevens, 1984

o Consider if Congress meant to delegate authority to agency
o Reasonableness Std
o When a court reviews an agency’s construction of the statute it administers – ask –
 Whether Congress has directly spoken to the precise question at issue
 If intent not clear, is agency’s interpretation “reasonable” or based on a permissible construction
of the statute
 Power of agency to run a leg. created program necessarily requires the formulation of
policy and the making of rules to fill any gap by Congress
 If Congress has explicitly left a gap for the agency to fill, there is an express delegation
of authority to the agency to elucidate by regulation
o Such legislative regulations are given controlling weight unless they are arbitrary, capricious or
manifestly contrary to the statute

 MCI Telecommunications Corp v. At&T, Justice Scalia, 1994

o Ct.s deployment of dictionaries
o Viewed as a “STEP ONE” Chevron case –
 Agency interpretation of “modify” was rejected under Step 1 b/c it went “beyond the meaning
that the statute can bear”
o SCALIA wrote the opinion for the court – look at dictionary definition of “modify” – which implies a
“moderate” change. It was not ambiguous.
 The agency’s interpretation was too drastic and essentially revised the statute, which was not
Congress’s intention of a “moderate” modification – focus on Congressional intent
o Textualism finds less ambiguity  less agency deference

 US v. Mead Corp, Justice Souter, 2001 – limitation on Chevron

o Tariff applied to diaries and then later Mead’s day planners

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 o Holds that Chevron rests upon Congress’s delegation of lawmaking authority to the agency and courts
ought to take care that there actually has been such a delegation
o Court does not give Chevron deference and holds that admin. interpretation of a particular stat. 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
 The Customs classifications rulings should not get Chevron deference, but are “best treated like
interpretation contained in policy statements, agency manuals and enforcement guidelines. They
are beyond the Chevron pale.”
 Recognizing that thousands of tariff decisions are issued each year by the 46 regional offices of
the U.S. Customs Service, and that each decision has no precedential value, the court
determined that Chevron shouldn’t apply.
o However, the Court remanded the case for a determination of whether the more limited deference of
Skidmore standard should be applied to the decision.

 FDA v. Brown & Williamson

o FDA issued a rule to regulation the distribution and sale of cigarettes and other tobacco products under
the Food, Drug, and Cosmetic Act
 Tobacco affects the structure and function of the body --> it's a drug
o Holding: FDA doesn’t have the authority to regulate tobacco under the FDC ACT
o Applied Chevron to find that Congress had directly spoken on the matter in a way that was clear that the
agency didn’t have the authority.
 Looked to the purpose of the act, Congress’s repeated actions to address tobacco regulations,
and the fact that the FDA had previously asserted it did not have the authority.
 Congress doesn’t hide elephants in mouseholes
 The Dog that doesn’t bark

Exceptions to Judicial Deference

 Skidmore is probably the most dominant deference regime
 Steps of Chevron Analysis
o Zero: Whether Congress delegated the authority to the agency to speak with
authority on a subject
o One: Whether the statute is ambiguous / Whether Congress has directly
spoken to the precise question at issue
o Two: Whether the agency's answer is based on a permissible construction of the
statute

 Ideological acquiescence is common

o Pensions show a high agency win rate since this affects a large number of people
o Indian affairs shower a lower deference rate, reflecting distrust for agency and higher
regard for canons
o Some justices shower higher average rates of deference, but some really just defer to
their political party

Step Zero: Is the agency acting within its delegated authority?

 Gonzales v. Oregon, Justice Kennedy, 2006
o Under the Oregon death with dignity act, physicians don't have liability if they prescribe lethal doses of
drugs to terminally ill patients. AG tried to prohibit.
o Issue 1: Did the Controlled Substances Act give the AG the authority to make that decision? If not --> no
deference
o Holding 1: No. The AG can't prohibit physicians from prescribing regulated drugs for physicians
assisted suicide if the state allowed the procedure
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 o Since the agency didn't have the authority to promulgate the rule, they weren't entitled to deference. It
was only persuasive, but in this case the court didn't find it to be persuasive since they shouldn't be
regulating medical practice generally (state's regulatory authority).
o Canon: Presumption against hiding elephants in mouseholes
o Rejects the idea that the agency should be given super deference on interpreting their own statute.
 Coeur Alaska v. Southeast Alaska Conservation Council, Justice Kennedy, 2009
o Deference to EPA interpretation allowing the Army Corp of engineers to grant permit to Coeur Alaska to
discharge “slurry” into a navigable waterway
o The Corps’ interpretation was not plainly erroneous or inconsistent with the regulation –Auer super
deference
o Ct. follow internal EPA Memo – which presented a reasonable interpretation of the regulatory regime
o Stat. has procedure for some things the EPA gets to decide and other things the Corps can decide
 Here, the EPA says, its ok – let the Corps issue permit
 EPA didn’t write up the memo through the rulemaking process, they did not get any input from
the public
o Concurrence: Justice Scalia said they reached the correct conclusion but they’re trying to give Chevron
deference to an ambiguous statute
o Three ways to approach this
 Rule of law – shouldn’t be coerced except by law as determined by the judge –Judges insist on
their own view of the law even if this provokes Congress and creates chaos
 Cut it out – the agency is going to win due to expertise
 Judges come up with canons that constrain agency

Should courts defer when the agency interpretation presents serious constitutional difficulties?
 This could be constitutionally problematic if they’re deferring on issues that are related to
private decision making and state policymaking
o Step Zero: Presumption: Congress doesn't normally delegate to agencies the authority
to press constitutional limits
o Step One: The avoidance canon to trump Chevron: When there are two possible
meanings of statutory language, the court should for institutional process reasons
follow the one that does not raise constitutional problems
o Step Two: an agency interpretation is not "reasonable" if it raises constitutional
concerns when a more cautious interpretation would just as easily subserve
congressional goals

Does agency deference apply to issues of preemption?

 Canon: The historic police powers of the states are not to be superseded by federal act
unless that is the clear and manifest purpose of Congress.
 Supremacy Clause = Article VI --> Federal statutes = supreme law of the land that
state courts enforce (even when they are inconsistent with state law)
1. A valid federal statute can stipulate that it preempts state law, and the court will
follow that statutory directive
i. Congress can add a "non-preemption" savings clause into legislation also
2. A federal statute will preempt state law whose operation is inconsistent with that
of the federal statutory scheme
1. Field Preemption: The scheme of federal regulations may be so pervasive as to
make reasonable the inference that Congress left no room for the States to
supplement it

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Levels of input from an agency
1. Congress gives the agency direct authority to preempt state law through notice and
comment rulemaking
i. Chevron deference
2. Congress delegates authority to the agency to adopt substantive rules which could
then be the basis for federal preemption the same as explicit statutory rules would
i. Skidmore deference
3. Agency might on its own views present interpretive guidance or amicus briefs
i. Questionable level of deference

 Geir v. Honda Motor Co, Justice Breyer, 2000

o Geir was injured in an accident and sued Honda for lacking airbags, but they argued that they had
complied with the federal safety Act at the time
o Can federal statutes and regulation preempt state common-law strict-liability products claims? (Yes)
o Geier's claim that DC law required all cars built in 1987 to have airbags unavoidably conflict with the
policy judgments and provision of standard 208

 Wyeth v. Levine, 2009 Federal law does NOT preempt the state tort claim
o Wyeth, the manufacturer of drug, was found guilty of failing to provide an adequate warning of a
significant risk associated with a drug and the P was awarded damages - but Wyeth argue that they
complied with the FDA standards – we did what the FDA told us to do
o Canon: Historic police powers of the States were not to be superseded by a Federal Act unless that was
the clear and manifest purpose of Congress.
 The state law was not an obstacle to the FDA’s mission – The FDA law was a FLOOR from
which the states could build and impose additional statutory requirements
o This came out differently than Geir, and it is not quite clear why

Deference in National Security and Foreign Affairs

 Curtis-Wright Deference: congressional legislation must accord the president with a degree of
discretion and freedom from statutory restriction which would not be admissible were domestic
affairs alone involved
 Navy v. Egan (1988) holding: Unless Congress specifically has provided otherwise, courts
traditionally should be reluctant to intrude upon the authority of the executive in military and
national security affairs.

 Hamdan v. Rumsfeld, 2006

o Holding: Presidential military commissions dispensing summary justice could not legally try Salim
Ahmed Hamdan.
o Justiciability: concerns about Congress’s authority to impinge on court:
o Authorization: The framework comes from Congress and should not be driven by exigency
o Authorization: Statutory analysis shows that this would be incompatible with the expressed will of
Congress
o Charming Betsy acknowledges that if Congress is explicit, it can override international law. It may be
that if the President is explicit, he can also override international law.

 Encino v. Navarro, Justice Kennedy, 2016

o Whether the Fair Labor Standards Act requires payment of increased compensation for certain
automobile dealership employees. i.e., What deference should be given to the 2011 department decision?
o This regulation does not receive Chevron deference
 When Congress authorizes and agency to proceed through notice-and-comment rulemaking, that
relatively formal administrative procedure is a very good indicator that Congress intended the
regulation to carry the force of law, so Chevron should apply

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  BUT where a proper challenge is raised to the agency procedures, and the procedures are
defective, a court should not accord Chevron deference 
o Basic procedural requirement: Agency must give adequate reasons for its decision.
 Low bar: "path may reasonably be discerned"
 If this minimum level is not met, the action is "arbitrary and capricious" and so cannot carry the
force of law
o Policy: Decades of industry reliance on the Dept’s prior policy.

 Dept of Commerce v. NY, Justice Roberts, 2019

o Question about reinstating citizenship question in the 2020 census
o The Secretary's decision is judicially reviewable. The APA prevents judicial review in only narrow
circumstances.
 The taking of the Census is not one of those special circumstances.
o Weighing that uncertainty against the value of obtaining more complete and accurate citizenship data, the
Secretary determined that reinstating a citizenship question was worth the risk of a potentially lower
response rate. That decision was reasonable and reasonably explained, particularly in light of the long
history of the citizenship question on the census. BUT
o evidence established that the Secretary had made up his mind to reinstate a citizenship question “well
before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the Voting Rights Act.
 Contrived reasons cannot be accepted
 If your reason doesn’t appear to be your real motivation, then deference isn’t warranted.

 West Virginia v. EPA

o Major questions exception to Chevron
 Cigarettes – too big a question
 ACA – too big a question
 Coal Use in Utilities – not too big a question for Chevron deference
o We presume Congress did not intend to delegate such a large or sweeping scope of responsibility and
impact in decision-making
 Big, disruptive policy avoidance canon
o Movement back to Skidmore when grappling with larger questions as outlined above

Potential Hierarchy
 Those canons used to clarify the meaning
 Those canons used to show when to avoid the meaning (e.g., the constitutional avoidance canon)


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