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TraditionsCommon1

Moreteau, Common Law Methodology: Analyzing Statutes

QuestionAnswer
common law methodology: analyzing statutes 1. establish domain of interpretation 2. apply fundamental approaches to statutory interpretation 3. apply canons of statutory construction 4. apply additional interpretive resources
1. establish the domain of interpretation a. common law statutes are binding, therefore if the legislation is clear, then all analyzing should seize b. legislation is rarely truly clear, so interpretation can always ensure
2. apply fundamental approaches to statutory interpretation a. literal rule b. golden rule c. purposive approach
2a. literal rule i. plain meaning of the statute ii. like interpretatio cessat in claris in civil law
2b. golden rule i. if plain meaning of statute produces inconsistency, absurdity, or inconvenience, then say, "clearly this is not the outcome intended by the statute" ii. reason should trump the letter of the law iii. like ad absurdum in civil law
2c. purposive approach i. what was the purpose of the statute? does the application of the statute in this case achieve that purpose? ii. like teleological approach in civil law
3. apply canons of statutory construction Note: the canons should be used as interpretive aids to boost the analysis of the fundamental approaches (but only golden and purposive) a. expressio unius est exclusio alterius b. noscitur a sociis c. ejusdem generis
3a. expressio unius est exclusio alterius i. the expression of one thing implies the exclusion of another ii. like a contrario in civil law
3b. noscitur a sociis i. a thing is known by its associates (look at statutory text surrounding questionable section) ii. like in pari materia in civil law
3c. ejusdem generis i. description of "catch all" at the end of the list by analyzing the genre of the other items mentioned in the list ii. this is the same in civil law
4. apply additional interpretive resources a. analogical reasoning b. legislative history
4a. analogical reasoning i. application by analogy ii. note, though, this is more problematic and unconvincing in common law bc common law specifically doesn't have systematized statutes, unlike in civil law iii. called a pari in civil law
4b. legislative history (LH) i. what does LH say intent of L was? ii. problematic for same reasons historical analysis is problematic in civil: -intent of legislator /= intent of legislature -legislators don't always allude to real intent -frowned upon to pt/banning use of L his
Created by: scottsmith81
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