Legislation
Class Notes
We’re
about to look at the
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
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.
§
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?