Question | Answer |
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 |