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Statutory Interpretation: The Search for Legislative Intent

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Statute reading doesn't have to be arduous. Designed to be read with a particular statute in mind, this handy guide is perfect for attorneys preparing for litigation, judges who need to understand the required and prohibited methods for statutory interpretations when bound by decisions of higher courts, and students seeking the tools of statutory interpretation.

The Second Edition has been revised to respond to comments and suggestions received as well as to update developments since the publication of the first edition. Additions include the inclusion of several traditional terms, and completely new sections about:

•  Statutory Construction: Construing the Statutes
•  Reductio Ad Absurdum
•  Attorneys' Fees
•  Shall, Must, and May: Mandatory or Permissive
•  Masculine and Feminine Terms
•  "And" or "Or" Conjunctive or Disjunctive
•  Singular and Plural Words
•  Last Antecedent: Reddendo Singula Singulis
•  Different Phrases in a Statute are Not Synonymous
•  Effective Date
•  Later Enactments and their Histories

A handy and valuable resource broadly relevant to almost every area of the law, this concise small-format book is your key to eliminating the ambiguities and inconsistencies that are often present in statutes, and provides critical analysis and practical applications of the art of statutory interpretation.

Authors / Contributors

Table of Contents

Contents


Chapter 1 Introduction

1.1 Getting Started

1.2 Statutory Construction: Construing the Statute

1.3 Using Statutes

1.4 Suggested Interpretation Approach for Judges

1.5 Suggested Interpretation Approach for Lawyers

1.5.1 Counseling Clients

1.5.2 Litigation and Appeal

1.6 Suggested Interpretation Approach for Law Students

1.7 Suggested Approach for Those Drafting Legislation


Chapter 2 Legislative Intent

2.1 The Critical Factor: Legislative Intent

2.2 The Problem with Legislative Intent

2.3 Identifying Legislative Intent

2.4 As of When

2.5 Constitutional Interpretation Distinguished

2.6 Statutes Produced by Referendum

2.7 Statutes Produced by Initiative


Chapter 3 Background Considerations

3.1 Introduction

3.2 The Court's Role

3.2.1 Legitimacy

3.2.2 Competency

3.2.3 Ordinary Judging

3.3 Primary Concerns

3.3.1 Accuracy

3.3.2 Credibility

3.3.3 Normative vs. Empirical

3.3.4 Deliberative

3.3.5 Public Service

3.3.6 Bargaining

3.4 Accessibility of the Information


Chapter 4 Approaches to Determining Legislative Intent

4.1 Introduction

4.2 Plain Meaning Approach

4.3 Golden Rule Exception to Plain Meaning

4.4 Soft Plain Meaning Rule

4.5 Purpose Approach

4.6 In Pari Materia

4.7 Contextualism

4.8 Textualism

4.9 Text as Merely a Starting Point

4.9.1 Equity of the Statute

4.9.2 Common Law Approach: Analogy and Implication

4.9.3 Judicial Gloss

4.9.4 Statute's Domain

4.10 Strict vs. Liberal Construction

4.11 Statutes in Derogation of the Common Law

4.12 Remedial Statutes

4.13 Dynamic Interpretation

4.14 Statutory Rules of Statutory Construction

4.15 Process Rather Than Theory: The Uniform Act

4.16 Literalism and Spurious Interpretation

4.17 Reductio Ad Absurdum

4.18 Canons of Construction


Chapter 5 Canons Based on the Substance of the Law

5.1 Introduction

5.2 Armed Services

5.3 Attorney's Fees

5.4 Constitutional Questions

5.5 Curative Statutes

5.6 Federalism

5.7 International Law: The Charming Betsy Canon

5.8 Native Americans/American Indians/First Nations People

5.9 Penal Statutes: The Rule of Lenity

5.10 Preemption of State Law by Federal Statute

5.11 Property Rights

5.12 Sovereign Immunity

5.13 Tax Statutes

5.14 Extra-Territorial Application



Chapter 6 Linguistic Canons

6.1 Introduction

6.2 Ejusdem Generis

6.3 Noscitur a Sociis

6.4 Negative Implication: Backspin

6.4.1 Expressio Unius Est Exclussio Alterius

6.4.2 Exceptions and Provisos

6.5 Whole Statute

6.6 Surplusage or Redundancy

6.7 Internal Consistency

6.8 Technical Terms

6.9 Grammar and Punctuation

6.10 Specific Statute Controls a General Statute: Generalia Specialibus Non Derogant

6.11 Shall, Must, May: Mandatory or Permissive

6.12 Masculine and Feminine Terms

6.13 "And" or "Or": Conjunctive or Disjunctive

6.14 Singular or Plural Words

6.15 Last Antecedent: Reddendo Singula Singulis

6.16 Different Phrases in a Statute Are Not Synonymous



Chapter 7 Canons Based on Normal Legislative Process


7.1 Introduction

7.2 Repeal by Implication

7.3 Revival by Implication

7.4 Later Statutes Control Earlier Ones: Leges Posteriores Priores Contrarias Abrogant

7.5 Retroactive Statutes

7.6 Titles are Not Controlling

7.7 Unnecessary Hardship

7.8 Effective Date


Chapter 8 Using What Occurred Before or During Enactment in the Interpretation Process

8.1 Introduction

8.2 Legislative Histories

8.2.1 Committee Reports

8.2.2 Speeches, Remarks, and Debates

8.2.3 Drafters' Comments

8.2.4 Lobbyists' Materials

8.2.5 Earlier Versions and Amendments

8.2.6 Other Legislative By-Products

8.2.7 Rejected Bills

8.2.8 Finding Legislative Histories

8.3 Drafting Rules, Conventions, and Texts

8.4 Preambles

8.5 Executive's Commentary or Signing Message

8.6 Veto Messages


Chapter 9 Using What Happened After Enactment in the Interpretation Process

9.1 Introduction

9.2 Testimony by a Legislator or Legislative Staffer

9.3 Subsequent Legislative Action

9.3.1 Reenactment

9.3.2 Codification

9.3.3 Re-codification

9.3.4 Later Enactments and Their Histories

9.4 Legislative Acquiescence

9.5 Executive and Agency Action

9.5.1 Deference to Expertise

9.5.2 Substantial Deference to Federal Agencies

9.5.3 State Agencies

9.6 Uniform Acts and Model Acts


Chapter 10 Research Sources

10.1 Introduction

10.2 "The" Treatise

10.3 Texts

10.4 Encyclopedias

10.5 Digests

10.6 Worthwhile Reading


Index