GSU College of Law Orientation

Introduction

• Start always with the text of the statute
• Unlike cases, the language of which is subject to paraphrase, never paraphrase the language of a statute.  Only the statutory text is authoritative.
• As Felix Frankfurter admonished, "Read the statute. Read the statute. Read the statute."
• Language is inherently "open-textured," and so every rule has fuzzy edges, every rule has what H.L.A. Hart calls "a core of certainty and a penumbra of doubt."
• Example: "Last Name First" on a license application

Approaches to Statutory Interpretation

• "Old" Textualist/Traditionalist
• If the meaning is plain, apply it
• but avoid absurdity
• Use canons of statutory construction to discern meaning
• Look to legislative history to confirm that legislature understood the plain meaning
• "New" Textualist
• If the meaning is plain, apply it.
• Use canons of statutory construction to discern meaning.
• Use dictionaries, the rest of the statute, the rest of the code (using statutes by analogy).
• Legislative history is irrelevant, even to resolve statutory ambiguity.
• Statutory ambiguity = delegation to agency (but not courts?)
• "If the meaning were plain, we wouldn't be here, your Honor."
• Intentionalist
• Apply the statute "as the legislature intended."
• Epistemologically incoherent - a legislature is not the kind of  entity which can "intend" anything.
• Purposivist
• Apply the statute so as best to give effect to its purpose.
• In discerning purpose, examine
• the text of the statute;
• the legislative history;
• other sources of public policy.
• An illustration of the differences: "Jurors shall be selected from the list of electors," a statute passed before women were electors.  May women serve as jurors?
• What might a textualist say?
• What might an intentionalist say?
• What might a purposivist say?

Some "Canons" of Statutory Interpretation (Intrinsic Aids)

• Textual Canons - words are known by the company they keep
• Ejusdem Generis: when general words follow particular words, the general words are to be limited to the class of things indicated by the particular words.
• E.g., "trains, planes, automobiles, and other vehicles."  Does "other vehicles" include skateboards?
• Expressio unius est exclusio alterius: expression of one thing means exclusion of another.
• E.g., a statute may prohibit discrimination on the basis of "race, ethnicity, national origin, or religion"  Is discrimination on the basis of gender prohibited?
• Substantive Canons - reflecting certain policy choices
• Statutes in derogation of the common law should be strictly construed.
• The Rule of Lenity: criminal statutes should be narrowly construed.
• Special statutes trump general statutes.

Extrinsic Aids to Statutory Interpretation

Public choice theorists assert that the legislative process is driven by the motivation of each individual legislator to be reelected, and so only the legislative product (legislation) deserves our attention.
 

An Illustration

A person who "uses or carries a firearm" "during and in relation to" a "drug trafficking crime" is subject to a 5-year mandatory prison term. 18 U.S.C. § 924(c)(1). Police officers found a handgun locked in the glove compartment of petitioner Muscarello's truck, which he was using to transport marijuana for sale.  Is Muscarello subject to the mandatory sentence, if found guilty of drug trafficking?

• Frame the issue precisely using the exact statutory language, interpretation of which will decide the case one way or the other.
• Perhaps: Whether a person who has a handgun locked in the glove compartment of his truck, which he is using to transport marijuana for sale, "carries a firearm" within the meaning of 18 U.S.C. § 924(c)(1).
• Is the statute ambiguous, or is its meaning plain?  If ambiguous, how should a court resolve the ambiguity?