Lapp Flashcards Pt.2 - Statutory Construction

Front 1

Defined words

Back 1

If a statute defines a term, that definition controls even if the definition is contrary to the term’s common , ordinary meaning.

Front 2

Useless/Nullity

Back 2

Words may not be interpreted as useless or a nullity. Effect must be given to all words in a statute. If a result can be reached even with the omission of certain words in a statute, then that argument would not be giving effect to all of the words in a statute.

Front 3

Plain Meaning

Back 3

When a statute does not define a term, the term will be interpreted as taking it’s plain or ordinary, contemporary, common meaning.

Front 4

Dictionaries

Back 4

When a term is undefined, a dictionary may be used to determine a word’s meaning. The most common definition of a word will be ranked first. In a hotly contested issues, multiple dictionaries should be consulted.

Front 5

Legal Meaning

Back 5

If a statue is targeted toward government officials or agencies, Congress is deemed to have meant the term to be consistent with its legal meaning.

Front 6

Technical Meaning

Back 6

Technical terms or terms of art used in a statute are presumed to have their technical meaning, when the context suggests the meaning and the statute is directed at that business or industry.

Front 7

Identical Words

Back 7

Identical words used throughout a statute will be presumed to take the same meaning. However, if an identical word is used in a different section, it may be presumed to have a different definition if the word is redefined or an alternate definition is more appropriate in a different context.

Front 8

Disjunctive Or and And

Back 8

Words connected by the disjunctives “or” and “and” are presumed to have separate meanings unless the context dictates otherwise.

Front 9

“shall” “may” and “any”

Back 9

The word “shall” in a statute generally indicates a mandatory intent.
The word “may” usually implies some degree of discretion.
The word “any” is expansive and includes one or some indiscriminately of any kind.

Front 10

Ejusdem Genaris

Back 10

Where general words follow the enumeration of specific terms, the general words are applied only to other items akin to those specifically enumerated.

Front 11

Implied Exclusion/ Exclsio

Back 11

When the legislature uses one term in a section of a statute and then leaves it out in another section, the legislature is presumed to have acted intentionally in the inclusion or exclusion. However, it has more force only when the items expressed are members of an associated group or series. (exclusio)

Front 12

Catch All’s

Back 12

The use of the word “including” or another catch all indicates that the list which follows is illustrative and not exclusive and ( and the ASSOCITATED WORD DOCTRINEe says that words grouped together in a list will be given similar meanings and EJUSDEM GENERIS says that a general term that follows a list the general term applies only to items akin to those specifically enumerated)

Front 13

Particular Mode

Back 13

When a statute enumerates things to be done in a particular mode, it impliedly negates any other mode.

Front 14

Relative and Qualifying Terms

Back 14

Qualifying phrases are generally applied to immediately preceding phrases and not to phrases more remote.

Front 15

Specific Controls the General (within a statute)

Back 15

Where two provisions in a statute appear to conflict each other, the specific provision controls the general provision regardless of the inclusiveness of the general provision.

Front 16

In Pari Materia

Back 16

Repeals are disfavored and two statutes on point should be read as if they were one law as long as there is no positive repugnancy. It is the duty of the courts to regard each as effective. But if two statutes are irreconcilable, the more recent statue controls.

Front 17

Specific Controls the General (conflicting statues)

Back 17

A specific statute will be given precedence over a more general one, regardless of their temporal sequence.

Front 18

Legislature’s Knowledge

Back 18

The legislature is presumed to have knowledge of the cannons of construction and their prior statutes.

Front 19

Derogation of the Common Law

Back 19

Statues that invade the common law should be read with a presumption favoring the established principals of common law except where there is evidence of contrary, specific statutory intent to change the interpretation of judicially created concept.

Front 20

Statutes relating to the same subject

Back 20

Where there are two statutes relating to the same subject matter and the language is very similar, courts are warranted in concluding that congress intended similar construction.

Front 21

Statutes of Another Jurisdiction

Back 21

If congress specifically adopts the language of a statue form another jurisdiction it carries with it the previous judicial interpretations of the borrowed statue.

Front 22

Judicial Definitions

Back 22

When the judiciary attaches a definition to a word, congress is presumed to be aware of and intend the re-use of that definition in a new statute.

Front 23

Reenactment

Back 23

When congress reenacts a statute, it is presumed to approve of agency or judicial interpretation of that statute and to adopt that interpretation.

Front 24

Statement of Sponsors

Back 24

Statements of sponsors are not controlling, but when consistent with the statutory language and the legislative history they are evident of congressional intent.

Front 25

Committee Reports

Back 25

Committee reports are not authoritative interpretation of a statute because they are remarks made by a minority of one house and are often printed after a statue has been voted on. However, they can be additional evidence of congressional intention.

Front 26

Previous Versions of Bills

Back 26

Draft versions of bills, bills prior to amendments, and amendments after judicial interpretation are evidence of approaches or interpretations that congress considered and rejected.

Front 27

Statue as a whole

Back 27

Each statute should be read as a whole

Front 28

Historical Political Context

Back 28

Congress would not resolve some big issue with a catch all. Judges should avoid broadly interpreting a law when there is little congressional intent to do so.

Front 29

Older Statute - Older Meaning is Appropriate

Back 29

Older Statute - Contemporary Meaning is Appropriate

Front 30

Preambles

Back 30

A preamble is a general statement of policy and does not override the specific language of a statue but it may be considered when the statute is ambiguous.

Front 31

Titles

Back 31

A heading is not controlling if it contradicts the plain meaning of a statute but it can aid in resolving an ambiguity.

Front 32

Liberal Construction of Civil Remedial Statutes

Back 32

Remedial statues should be construed in favor of those it was meant to protect but the fact that a statute has a remedial purpose does not give the judiciary a license to avoid a statutes plain language.

Front 33

Strict Construction of Criminal Statutes - Lenity

Back 33

The rule of lenity ensure that there is fair warning of the boundaries of criminal conduct. Where there is an ambiguity in a criminal statue, a statute should be construed in favor of a defendant. But lenity comes into operation after judicial interpretation and should be used to resolve an ambiguity, not create one.

Front 34

Absurd or Unjust Consequences

Back 34

In interpreting a statue absurd results are to be avoided and general terms should not be limited as to avoid injustice or absurdity. Congress intended exceptions that would avoid this absurdity or injustice.

Front 35

Avoidance of a Constitutional Issue

Back 35

A court will construe a statue to avoid raising constitutional issues unless congress plainly intends to do so.

Front 36

Retroactive Statutes

Back 36

Congressional enactments will not be construed to have a retroactive effect unless language requires the result. The law may not retroactively apply to a final judgment.

Front 37

Views of Subsequent Congress

Back 37

The greater the temporal distance between the current statute or interpretation of congress with respect to the former statute or interpretation, the less persuasive the view.

Front 38

Constitutionality

Back 38

Federal statutes and state statutes are presumptively constitutional. They do not have to strike at all evils at once.

Front 39

Severance

Back 39

A statutory provision is presumed severable if what remains after is operative as law but if the remainder is incapable of functioning separately, the entire law has to be