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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 . . . . . . . 55Introduction
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. . . . . . . 753.00 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) . . . . . 125Preface
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)- Overview7. Other Resources From TheCapitol.Net . . . . . 299
- 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
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
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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
INTERNETSCOTUS BlogBOOKS
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.htmlLegislation 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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