Legislation Class Notes 3/5/04


We’re about to look at the Florida election saga.  Among the language canons, there are a series of rules that are sometimes a last-ditch alternative to statutory construction.  This one deals with the “shall vs. may” discussion.


We have also previously discussed the Whole Act Rule, which says that provisions should be interpreted in such a way to not take away from the force of those provisions of the act.


Thus, titles can be considered to resolve uncertainty.


Florida election law


Florida Code § 102.111 and § 102.112 were both validly enacted, but they seem to conflict.  What do they tell Katherine Harris to do?  Do we have a clear answer based on statutory language alone?  There is a “shall vs. may” problem.  In the first statute, it says that they “shall” ignore missing counties, but in the second statute it says that they “may” ignore missing counties.  That’s a conflict!


What happens when we take into account the maxim that more recent enactments control over older enactments?  That would seem to give more weight to the “may” language.  What about more specific provisions trump more general provisions?  The more recent statute would win again.  But what about the Whole Act Rule?  In the later version, there are penalties assessed.  How do we have to interpret the statute if we must give force to the penalty part?  It also seems like we take the “may” instead of “shall”.  Are we supposed to count overseas ballots as legitimate in this country?  Yes, there’s a federal law that says we must.  What might happen if the votes are postmarked on Election Day?  It is suggested that we must accept them.


Bishop v. Linkway Stores, Inc.


The federal discount rate was 8.5%.  The interest rate on the purchase was 15%.  Does this violate the Arkansas Constitution?  What does § 13(a) say?  It’s about “general loans”.  It limits them to 5% over the federal rate.  What remedies are available?  In § 13(a), you can get back double your interest paid.  But in § 13(b), it just voids the whole loan.  But maybe these are harmonized.


Even though this is a constitutional amendment, we’ll interpret it the same way we would interpret a statute.


What’s the record for the constitutional amendment?  What’s the analogue to legislative history?  Is it newspaper reports?  Do newspapers have less incentive to stay honest?  Where does it end?!  Parade of horribles!!!


Judges and justices have lots of discretion in sifting through any of these sources.


Unlike these kinds of language canons, which at least purport to operate in a similar way for all type of statutes, the subject link rules don’t apply across the board.  They usually direct courts to interpret statutes either liberally or strictly.  For example: presumptions against diminution of Native American rights or violation of international law.  These canons reflect judicial respect for outside sources of law.


There is also a canon that says that statutes that are remedial should be liberally construed, yet statutes that come from common law should be strictly construed.  Sometimes the canons will be in conflict!


The rule of lenity


This is a very old rule.  If a punitive statute doesn’t clearly outlaw private conduct, the private conduct can’t be punished.


Muscarello v. United States


§ 924(c)(1) says that if you use or carry a firearm while committing certain crimes, you get five years extra punishment.  What if you trade a gun for drugs?


Muscarello carries a gun in his truck.  But is this “carrying” within the meaning of the statute?  Breyer trots out everything but the kitchen sink.  We have three dictionaries, the great works of Western literature, and other stuff.  Is his argument persuasive as opposed to Ginsburg’s argument?  Does the majority clearly win on language?  There’s lot of historical stuff.  Is it persuasive?


It’s more dangerous to carry a gun on one’s person than to carry a gun in a car.


Does Ginsburg agree with the “tie-breaker” conception?


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