Statutory Construction and Interpretation
(Softcover and ebook)
General Principles and Recent Trends; Statutory Structure and Legislative Drafting Conventions; Drafting Federal Grants Statutes; and Tracking Current Federal Legislation and Regulations

Compiled by TheCapitol.Net

This book reviews the primary rules courts apply to discern a statute's meaning. However, each matter of interpretation before a court presents its own challenges, and there is no unified, systematic approach used in all cases. While schools of statutory interpretation may vary on what factors should be considered, all approaches start (if not necessarily end) with the language and structure of the statute itself. In analyzing a statute's text, courts are guided by the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context.

 

2010, 318 pages Softcover, $29 ISBN: 1587331926   ISBN 13: 978-1-58733-192-3 Buy softcover from Amazon   Buy softcover from Barnes & Noble   Ebook: $20.95 EISBN 13: 9781587332234 Available from your bookseller or online

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  Also see

Legislative Drafter's Deskbook
By Tobias Dorsey

• Legislative Drafting Reference and Research Tools, including Statutory Construction

• Legislative History Reference and Research Tools

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Synopsis	Table of Contents	Related Resources

Synopsis

The exercise of the judicial power of the United States often requires that courts construe statutes in applying them in particular cases and controversies. Judicial interpretation of the meaning of a statute is authoritative in the matter before the court. Beyond this, the methodologies and approaches taken by the courts in discerning meaning can help guide legislative drafters, legislators, implementing agencies, and private parties.

This book reviews the primary rules courts apply to discern a statute's meaning. However, each matter of interpretation before a court presents its own challenges, and there is no unified, systematic approach used in all cases. While schools of statutory interpretation may vary on what factors should be considered, all approaches start (if not necessarily end) with the language and structure of the statute itself. In analyzing a statute's text, courts are guided by the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context.

Still, the meaning of statutory language is not always evident. To help clarify uncertainty, judges have developed various interpretive tools in the form of canons of construction.

When drafting federal law, the most important audience is the federal courts-and, in particular, the Supreme Court of the United States. Fortunately, it is not difficult to get inside the mind of the Court and understand how it thinks. The Court makes this process public in its published opinions; collectively, the process is known as statutory interpretation. (It is also known as statutory construction; the differences between the two terms are not great.)

There are other audiences, of course. The draft will be read and interpreted by legislators, lobbyists, public officials, private individuals, industry leaders, journalists, and scholars, to name a few. In some ways these audiences are very different, but in two ways they are all alike: Each wants to know the effect of the draft, and each recognizes that the effect is ultimately determined by the courts, through judicial methods of statutory interpretation. The courts always have the last word, and the Supreme Court has the very last word.

It is true that many principles of statutory interpretation are simply general principles about how best to read English prose. But many are not. Some are obvious, some are subtle, some are counterintuitive, some are traps for the unwary.

Also included is a chapter on drafting federal grants statutes. Several rules of drafting have special relevance to statutes in the field of federal assistance (grants), and those are set forth with a discussion of the special problems facing drafters of grants laws.

Legislation can be drafted without paying attention to statutory interpretation. But rules of interpretation are like rules of the road: Drive on the right; stop on red; signal before turning; pedestrians have the right of way. If you don't know all the rules, sooner or later you will park in front of a fire hydrant or go the wrong way down a one-way street.
 

Table Of Contents

 

Table of Contents

1.  Statutory Interpretation: General Principles and Recent Trends, CRS Report for Congress 97-589, October 14, 2009  (see CRS Report 97-589, September 24, 2014, 66-page PDF)  .  . . . . . . . . . . . . . . 1

- Introduction
- Statutory Text
- In General-Statutory Context and Purpose
- "Language" Canons of Construction
- In General
- Ordinary and Specialized Meaning
- Terms of Art
- Ordinary Meaning and Dictionary Definitions
- And/Or
- Definite/Indefinite Article
- Shall/May
- Singular/Plural
- General, Specific, and Associated Words
- Grammatical Rules, Punctuation
- Statutory Language Not to be Construed as "Mere Surplusage"
- Same Phrasing in Same or Related Statutes
- Different Phrasings in Same Statute
- "Congress Knows How to Say ..."
- Statutory Silence
- De Minimis Principle
- "Substantive" Canons of Construction
- Departure from Common Law or Established Interpretation
- Displacing State Law, Impinging on State Operations
- Abrogation of States' Eleventh Amendment Immunity
- Nationwide Application of Federal Law
- Waiver of Sovereign Immunity
- Non-retroactivity / Effective Date
- Avoidance of Constitutional Issues
- Extraterritorial Application Disfavored
- Judicial Review of Administrative Action
- Deference to Administrative Interpretation
- Repeals by Implication
- Laws of the Same Session
- Appropriations Laws
- Rule of Lenity
- Scienter
- Remedial Statutes
- Statutes Benefitting Indian Tribes
- Miscellany
- Titles of Acts or Sections
- Preambles ("Whereas Clauses")
- Findings and Purposes Sections
- "Sense of Congress" Provisions
- Savings Clauses
- "Notwithstanding Any Other Provision of Law"
- Implied Private Right of Action
- Incorporation by Reference
- Severability
- Deadlines for Administrative Action
- Legislative History
- Plain Meaning Rule
- Uses of Legislative History
- Inferences Based on "Subsequent" Legislative History
- Subsequent Legislation
- Reenactment
- Acquiescence
- "Isolated Statements"
- Presidential Signing Statements

2.  Statutory Structure and Legislative Drafting Conventions: A Primer for Judges, by M. Douglass Bellis, Federal Judicial Center, February 2008  . . . . . . . 55

Introduction
Part I. Sources of Statutory Law
A. What is the authoritative text of federal legislation?
B. The problem of later amendments to earlier statutes in the "commonlaw" tradition
C. First attempt at codification-the Revised Statutes of the United States
D. Complications
E. A second attempt: the U.S. Code, a work in progress
F. The varieties of legal effect of various parts of the U.S. Code
G. The bottom line on sources of federal statutory law
Part II. Naming Conventions
A. Sections
B. Subsections and paragraphs
C. Clauses
D. Bottom line in dealing with "small divisions"
E. Titles, chapters, and other divisions
F. Various styles, one nomenclature
G. Convention relating to cross references within a unit
Part III. Other Conventions That May Be Useful To Know
A. "Including" means "not limited to"
B. The doctrine of functus officio as applied to amendatory Acts
C. Definitions under title 1 of the U.S. Code
D. Use of title 5 conventions
E. Reliance on title 28 conventions
F. Criminal fine conventions
G. State-of-mind convention for criminal cases
H. Problems with "willful"
Conclusion

3.  "Considering the Courts: Statutory Interpretation," Ch. 3 from Legislative Drafter's Deskbook, by Tobias Dorsey. . . . . . . 75

3.00 Introduction
3.01 Courts: The Most Important Audience
3.02 What Kind of Judge?
3.10 Judicial Power and Legislative Supremacy
3.11 The Power to Interpret
3.12 Making Congress Follow the Techniques
3.13 Tensions between Courts and Congress over Interpretation
3.14 Efforts by Congress to Regulate Interpretation
3.20 The Overriding Goal: Determine the Intent of Congress
3.21 Rules of Thumb, Not Rules of Law
3.22 Three Common Theories (Intentionalism, Textualism, and Pragmatism) and Their Limitations
3.23 The Plain Meaning Rule
3.24 The Meaning of "Plain Meaning"
3.25 The Consequences of Plain Meaning
3.26 When Plain Meaning Is Not Enforced
3.27 When There Is No Plain Meaning
3.30 Reading the Text of the Statute
3.31 The Whole Act Rule
3.32 Derive Meaning from Context
3.33 Assume Words Are Used Consistently
3.34 Assume Each Word Is Used for a Reason
3.35 Assume the Provisions Form a Coherent Whole
3.36 Purposes, Findings, Titles, and Headings
3.37 Grammar and Punctuation
3.38 Placement in Code
3.40 Considering Other Statutes
3.41 Related Statutes
3.42 General Federal Laws
3.43 Earlier Versions of the Same Statute
3.44 Resolving Conflicts between Statutes
3.50 Considering Constitutional Issues
3.51 Avoiding Serious Constitutional Problems
3.52 When the Court Requires Clear Statements
3.53 When the Court Requires Specific Findings
3.60 Actions hy the President and Other Executive Officers
3.61 Presidential Signing Statements
3.62 Agency Interpretation and Chevron Deference
3.70 Actions by the Congress and Other Legislative Officers
3.71 Interpretation of Appropriations Acts
3.72 Legislative History: Why It Is Problematic
3.73 Legislative History Compared with Post-Enactment Statements
3.74 Legislative History Compared with Subsequent Legislative History
3.75 Report Language
3.76 Individual Statements
3.77 Hearing Testimony
3.78 Amendatory History
3.79 The Opinion of the Drafter
3.80 Some Topics of Special Interest to Drafters
3.81 Definitions and Terms of Art
3.82 Narrow Interpretations and Broad Interpretations
3.83 Congress Does Not Mumble
3.84 How the Court Interprets a List
3.85 The Court's Reluctance to Imply Additional Exceptions
3.90 Conclusion

4.  A Guide to Federal Grant Statute Drafting, by Malcolm S. Mason, from "Drafting Federal Grant Statutes: Studies in Administrative Law and Procedure 90-1," Administrative Conference of the United States (ACUS) . . . . . 125

Preface
Note on 1 U.S.C. 1
Description of the Project
Advisory Group
Table of Contents
I. Introduction
A. Are grant statutes generally well drafted?
B. Some expert assessments indicate that grant statutes are often not clear
C. Some examples confirm that view
D. The Supreme Court repeatedly finds grant statutes not clear
E. Ambiguity is sometimes deliberate and sometimes justified but should be held to a reasonable minimum
F. Who should be interested in grant statute drafting problems?
II. Planning an assistance program
A. Choice of instrument
1. Is the program to be a grant program as opposed to a direct federal operation
2. Use a grant when two conditions are present
a. There is an important federal purpose to be served
b. There are also local concerns that should share in shaping the remedy for the problem perceived, and should be encouraged to supply drive, imagination, creativity, modification to local circumstances
3. Should the program instrument be a grant or a contract?
4. Why should it matter whether one instrument or the other is used?
5. If the program is to be assistance, is the instrument to be a grant or cooperative agreement?
B. Types of grants
C. Various programs in addition to grants have assistance elements
D. Grants in context
1. A grant program need not and generally does not stand alone
2. Good grant statute drafting calls for at least consideration of setting the proposed grant statute in a context of such other activities, and adjusting the various elements to each other
E. The constitutional basis for grants
F. Grants are a congressional monopoly
G. The administering office
1. If a program is to be a grant program, who should administer it?
2. It is recommended that absent clear reasons to the contrary, grant authority should normally be conferred on agency heads with express or implied power of delegation rather than on specified subordinates
H. How much discretion should be left to the executive?
I. What should be the funding mechanics of the program?
J. What is the intended class of recipients?
K. Should there be a requirement for local sharing in the costs?
L. Should there be a requirement for maintenance of local effort?
M. Should there be a requirement that federal funds not be used to supplant local efforts?
III. Planning a grant statute
How should a grant statute be structured
A. Outline of a typical grant statute
Sec. 1. Short title
Sec. 2. Table of contents
Sec. 3. Findings and purposes
-- State your sources of power explicitly
-- State your purposes explicitly
Sec. 4. Definitions [and herein other questions of language]
-- Anticipate litigation
-- Define your terms
-- Plain language can be a trap
-- Borrowed language and borrowed provisions
-- A danger in cut and paste
-- "The drafter should never mindlessly copy the model. The drafter should approach the model as if it were a first draft which needs revision. (Usually it does.)"
-- Standardization
-- Remember that your proposed statute is intended to affect live people
Sec. 5. Establishment of administering office
-- A trap: who's the boss?
-- The problem of micro management
-- Over-demanding rules
Sec. 6. Authorization of appropriations
Sec. 7. Authorization of assistance
-- Do not unnecessarily or inadvertently direct state or local governments or private bodies to act through structures or particular officers that the state (or local government or private body) would not choose for itself
-- Be explicit about eligibility
-- Be explicit about intended beneficiaries
-- Think about flow-through of grant rules to subgrantees and contractors under grants
-- Administrative discretion
-- Provide explicitly for discretion
-- Deal explicitly with questions of federal preemption
-- Be explicit about last dollar provisions
-- Autonomy
Sec. 8. Allotment formula
Sec. 9. State plan provisions
Sec. 10. Discretionary grant provisions
Sec. 11. Conditions of assistance
Sec. 12. Accountability, audit, monitoring provisions
Sec. 13. Sanctions and incentives
Sec. 14. Rulemaking power
Sec. 15. Administrative and judicial review provisions
-- Administrative
-- Judicial
-- Disallowance and non-conformity
Sec. 16. Provisions for relationship to allied programs
Sec. 17. Report to Congress
Sec. 18. Repealers, saving harmless, severability, sunset and miscellaneous provisions
-- Check-up periodically on existing statutes
Sec. 19. Effective date
B. Special considerations in drafting amendatory grant statutes
-- Leave a track
-- Is redesignation necessary?
-- An amending statute may need a different approach than an original statute
-- "Consult an experienced program attorney"
C. Some suggestions for general grant statutes
IV. Reference materials
A. Overview and brief preliminary suggestions
B. Bibliography
1. ACIR and ACUS studies
2. Other material related to grants
3. Related to drafting
C. Acronyms and other abbreviations

5.  Tracking Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff, CRS Report for Congress RL33895, March 11, 2010 . . . . . . 277  (see CRS Report RL33895, December 8, 2017, 17-page PDF)

- Introduction
- Tracking Current Federal Legislation
- Official Government Sources
- Non-Government Sources
- Tracking Current Federal Regulations
- Official Government Sources
- Non-Government Sources
- Media Sources
- CRS Resources
- Classes at CRS
- Selected CRS Reports
- Table A-1. Comparison of LIS and THOMAS
- Appendix. A Comparison of LIS and THOMAS

6.  Legislative Planning: Considerations for Congressional Staff, CRS Report for Congress RS20991, June 5, 2008 . . . . . . 291 (see CRS Report RS20991, January 27, 2017, 9-page PDF)

- Overview
- Define the Problem and Determine the Solution
- Research the Problem
- Determine Strategy
- Outline for Project
- Goal
- Description of Project
- Legislative Strategy
- Other than Legislative Strategy
- Outside Groups Strategy
- Press and Communications Strategy
- Time Line
- Political Opportunity
- Sample Action Plan for Legislative Project

7.  Other Resources From TheCapitol.Net . . . . . 299

Legislative Drafter's Deskbook, by Tobias A. Dorsey, ISBN: 1587330326
LegislativeDraftersDeskbook.com

Live Courses

- Drafting Effective Federal Legislation and Amendments
  DraftingLegislation.com

- Capitol Hill Workshop
  CapitolHillWorkshop.com

- Writing for Government and Business: Critical Thinking and Writing
   WordWorkshop.com

- Understanding Congressional Budgeting and Appropriations
  TCNUCBA.com

- Advanced Federal Budget Process
  TCNAFBP.com


Capitol Learning Audio Courses ^TM
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- Drafting Effective Federal Legislation and Amendments in a Nutshell, ISBN: 1587330326

- Authorizations and Appropriations in a Nutshell, ISBN: 1587330296

 

8.  Other Resources . . . . . . 301

INTERNET

SCOTUS Blog
http://www.scotusblog.com

"Statutory Construction: Not For The Timid," by Jon May, The Champion Magazine (NACDL), January/February 2006

"Federal Rules of Statutory Interpretation," by Nicholas Quinn Rosenkranz, Harvard Law Review, Vol. 115, p. 2085, 2002
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=748207

Restatement (First) of Statutory Interpretation, by Gary E. O'Connor, New York University Journal of Legislation & Public Policy
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=465322

The Shakespeare Canon of Statutory Construction

The Rules Of Statutory Construction
http://www.virginia1774.org/Statutory.html

BOOKS

Legislation and Statutory Interpretation, 2nd ed., by William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, ISBN-10: 1599410788

The Theory and Practice of Statutory Interpretation, by Frank Cross, ISBN-10: 080475912X

Statutory Default Rules: How to Interpret Unclear Legislation, by Einer Elhauge, ISBN-10: 0674024605

Dynamic Statutory Interpretation, by William N. Eskridge, Jr., ISBN-10: 0674218787

A Matter of Interpretation: Federal Courts and the Law, by Antonin Scalia, ISBN-10: 0691004005

Mastering Statutory Interpretation, by Linda J. Dellum, ISBN-10: 1611634563

An Introduction To Statutory Interpretation and the Legislative Process, by Abner J. Mikva and Eric Lane, ISBN-10: 1567066127

Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies, by Linda D. Jellum and David Charles Hricik, ISBN-10: 1594606757

Statutory Interpretation: The Search for Legislative Intent, by Ronald Benton Brown and Sharon Jacobs Brown, ISBN-10: 1556817851

A Dictionary of Statutory Interpretation, by William D. Popkin, ISBN-10: 159460181X

Statutes in Court: The History and Theory of Statutory Interpretation, by William D. Popkin, ISBN-10: 0822323281

Using Legislative History in American Statutory Interpretation, by Christian E. Mammen, ISBN-10: 9041188797
 

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Also see these related publications

Legislation and Statutory Interpretation	The Theory and Practice of Statutory Interpretation	Statutory Default Rules: How to Interpret Unclear Legislation	Mastering Statutory Interpretation
A Matter of Interpretation: Federal Courts and the Law	Statutory Interpretation: A Practical Lawyering Course	An Introduction To Statutory Interpretation and the Legislative Process	Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies
Statutory Interpretation: The Search for Legislative Intent	A Dictionary of Statutory Interpretation	Statutes in Court: The History and Theory of Statutory Interpretation	Using Legislative History in American Statutory Interpretation

 

 

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