But there is no such body of law. It is not enough to say that 'ordinary usage' precludes including the weight of a heavy glass bottle . Id. "159, Many judges, however, do not necessarily identify as pure purposivists or textualists; or even if they do, in practice, they will often employ some elements from each theory.160 Some scholars have argued that even the theoretical gap between these two theories is narrowing.161 Most modern purposivists consider the statutory text to be both a starting point162 and an ultimate constraint.163 And most textualists will look past the plain text, standing alone, to discover the relevant context and determine what problem Congress was trying to address.164, One Supreme Court case issued in 2017 demonstrates the increasing similarities between the two factions, as well as the remaining distinctions. Should they refer primarily to the law's text, or to its purpose? "323 Some modern judges have agreed with this criticism, arguing that judges effectively "need a canon for choosing between competing canons. See Gluck & Bressman, supra note 334, at 915; Nourse & Schacter, supra note 500, at 577 ("We recognize that the judicial story of lawmaking may be based on fictions rather than actual judicial beliefs about the legislative process. . Scalia & Garner, supra note 532, at 180. at 1210 ("Presumption against private right of action unless statute expressly provides one . (internal quotation marks omitted)); Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (Kennedy, J.) at 2. Gluck & Bressman, supra note 334, at 919-20. Burlington N. & Santa Fe Ry. "); id. See also Eskridge et al., supra note 532, at 1209; Scalia & Garner, supra note 532, at 281. Second, that interpretation furthers the [Act's] statutorily defined purposes. That is particularly true where it takes more than a little mental energy to process the individual entries in the list, making it a heavy lift to carry the modifier across them all."). 408, 411, 413 (1913) (rejecting argument that proviso was "a separate and independent statute" and holding instead that, according to the general rule, it modified only "the enacting clause to which [it was] attached"). "13 The enacting legislature may have sought to ensure that the statute would be general enough to capture the situations it could not foresee,14 or may have intended to delegate interpretive authority to the agency responsible for enforcing the statute.15 Vague or ambiguous language might also be the result of compromise.16 Or a statute might be silent with respect to a particular application because Congress simply did not anticipate the situation.17, When a statute becomes the subject of a dispute in court, judges usually must interpret the law, ambiguous or not.18 As Chief Justice John Marshall stated in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is. 3d 1190, 1227-28 (D.N.M. See, e.g., Easterbrook, supra note 130, at 62 ("The use of original intent rather than an objective inquiry into the reasonable import of the language permits a series of moves. See, e.g., Dep't of Hous. § 924(c)(1)) (internal quotation mark omitted). Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. . 1, 4 (1994) ("[T]he literal rule [in English law] holds that the intent of Parliament is determined from the actual words of the statute. See, e.g., Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. ."). Zuber v. Allen, 396 U.S. 168, 186 (1969) ("A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. L. Rev. Chisom v. Roemer, 501 U.S. 380, 405 (1991) (Scalia, J., dissenting). 1 William Blackstone, Commentaries *59 ("Words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use."). Sch. SW Gen., Inc., 137 S. Ct. at 942 ("The text is clear, so we need not consider this extra-textual evidence."). . See, e.g., Cardozo, supra note 35, at 128 ("Obscurity of statute . . L. Rev. 621, 663 (1990) ("The new textualists . "Scope-of-Subparts Canon":601 "Material within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts. William N. Eskridge, Jr., Phillip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 5 (2d ed. "); id. "410 As a result, a statute's amendment history can even overcome other evidence of statutory meaning.411. Noting the insufficiencies of neoclassical economics to deal with problems of cultural difference and priority, the... “Just-war theory,” as it is called, aims to guide action during warfare, so that states and individuals can act ethically. There are also a number of theoretical criticisms of the "ordinary meaning" standard. . Just as the justifications for using the canons of construction vary, so may judges disagree on what qualifies as a valid canon, either as a matter of theory or historical fact. . "441 Arguing that "[w]ords no longer have meaning if an Exchange that is not established by a State is 'established by the State,'"442 the dissent described the majority opinion as "rewriting the law under the pretense of interpreting it. . See supra notes 331 and 334 and accompanying text. L. Rev. 725, 728 (2014). See, e.g., John F. Manning, Inside Congress's Mind, 115 Colum. Rule of the Last Antecedent: "[A] limiting clause or phrase . ("In the absence of such a [statutory] definition, we construe a statutory term in accordance with its ordinary or natural meaning. State v. Partlow, 91 N.C. 550, 553 (1884). Download Download PDF. Sorry, preview is currently unavailable.
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