I’m teaching Legislation & Regulation @FordhamLawNYC
We finished the Leg leg last week.
For review, I drew up this whiteboard order of operations for Statutory Interp:
Step 1: Text, ordinary meaning
A. Dictionaries
B. Word association canons.
C. Structural canons.
1/
We finished the Leg leg last week.
For review, I drew up this whiteboard order of operations for Statutory Interp:
Step 1: Text, ordinary meaning
A. Dictionaries
B. Word association canons.
C. Structural canons.
1/
2/
Is it still ambiguous?
A. VERY?
B. A LITTLE?
C. NO, IT’S CLEAR...
If VERY, then it’s worth Step 2 AND Step 3 (carefully)
2: Substantive canons
3A: Legislative history
3B: Purposes...
Is it still ambiguous?
A. VERY?
B. A LITTLE?
C. NO, IT’S CLEAR...
If VERY, then it’s worth Step 2 AND Step 3 (carefully)
2: Substantive canons
3A: Legislative history
3B: Purposes...
3/ what if still...
B. A LITTLE AMBIGUOUS?
Step 2: Substantive Canons
Like Lenity, constitutional avoidance/constitution-based, common law, etc.
If still unresolved, go to Step 3, legislative history and purposes...
B. A LITTLE AMBIGUOUS?
Step 2: Substantive Canons
Like Lenity, constitutional avoidance/constitution-based, common law, etc.
If still unresolved, go to Step 3, legislative history and purposes...
4/
What if, after Step 1, the text appears CLEAR, unambiguous? Like "state" or "before Dec 31" etc?
Usually that's all, folks.
BUT...
What if "state" in the ACA is a Major Question?
What if "Before Dec 31" is scrivener's error?
Then skip Step 2, go to Step 3 -- heavy lifting.
What if, after Step 1, the text appears CLEAR, unambiguous? Like "state" or "before Dec 31" etc?
Usually that's all, folks.
BUT...
What if "state" in the ACA is a Major Question?
What if "Before Dec 31" is scrivener's error?
Then skip Step 2, go to Step 3 -- heavy lifting.
