hello welcome to week two of principles of regulatory law this week will be focused on statutory interpretation in unit 1 we're going to talk about different statutory interpretation canons I'll give you first a brief overview of the different sources of meaning we'll be going over first there are intrinsic sources which are sources within the statute including the language of the statute the structure of the statute then we also have extrinsic sources which are outside of the statute such as legislative history last thing we have policy based canons which are tools of interpretation based simply on policy so I'll review briefly some of the sources included in each of these categories for intrinsic sources our starting point is always the words or text of the statute we also look at grammar and punctuation the components of the statute such as the purpose clause the titles or the definitions section and different linguistic canons we're going to talk about in much more detail for extrinsic sources we can consider earlier drafts of the bill the legislative history statutory purpose outside of the statute so derived for example from legislative history legislative silence and response for judicial interpretation and the interpretations of other jurisdictions and agencies for policy based canons will discuss the rule of lenity derogation from common law retroactivity and the doctrine of constitutional avoidance so let's get started with intrinsic sources the words of the statute itself so how do we define what the words in a statute mean well the primary source would be any statutory definitions so this would be the definitions that Congress has provided us to interpret the statute those controling even if they may conflict with the ordinary meaning what a reasonable person would understand or a dictionary definition if there's no statutory definition then we would look at ordinary or plain meaning which is a reasonable person's understanding of the term one way to figure that out would be from a dictionary definition there are also technical definitions which as we'll see are for special technical contexts and common law definition so definitions that derive from the common law the plain meaning rule is the foundation of statutory interpretation and that says that words in a statute generally have their plain or ordinary meaning ordinary meaning refers to the meaning of a word that a reasonable person would think upon hearing the work and how does a judge find that ordering meaning can be based on the judges own understanding or through dictionaries but there are many issues that come up with looking up definitions in the dictionary questions like which dictionary do we use which time period what about if a word has many dictionary definitions there's a lot of subjective choice in picking the dictionary in the definition you want to follow and dictionaries really don't take context into account so those are all some of the troublesome issues with using a dictionary well so the definitional meaning may not be the ordinary meaning of the term then we have the technical meaning rule and the technical meaning rule is an exception to the plain meaning rule the technical meaning rule says that a word or a phrase that has acquired a technical or particular meaning in a certain context has that technical meaning if used in that context so what's the difference between ordinary and technical meaning ordinary meaning is something a layperson would use whereas technical meaning is the meaning that specialists in a certain field will use and how do you determine which one applies well you would look at whether the surrounding words are technical and whether the statute is actually directed at a technical audience there are certain situations though when judges are gonna look beyond the plain meaning of words even though that's the starting point for almost every judge it's often not the end point the main reason that judges look beyond plain meaning is because of ambiguity if there's ambiguity about what a statute means based on the plain meaning we're gonna need to bring in other sources sometimes also there may not be ambiguity but there may be an absurdity the ordinary meaning might result in some type of absurd interpretation in that situation - a judge will look beyond the plain meaning of a word third there could be a scriveners error which is basically a fancy term for a typo right if there's obviously some basic mistake in drafting that could be a reason to look beyond plain meaning and a fourth situation is where the ordinary meaning would raise some serious constitutional issues if that's the situation again we could look beyond ordinary meaning when we talk about ambiguity which is one of the reasons to look beyond ordinary meaning there are two kinds of ambiguity one is lexical ambiguity and neither structural ambiguity so lexical ambiguity has to do with a word having multiple meanings a word or a phrase so for example the old who's on first play is is something that would be an example of lexical ambiguity and textual context is often more helpful in resolving lexical ambiguity than structural ambiguity structural ambiguity on the other hand occurs when the underlying structure of the sentence usually the grammar is such that there's more than one interpretation possible based on that structure so for example the phrase visiting relatives can be boring could mean going to visit relatives is boring or when relatives are visiting that's boring well look at a couple more examples to try to clarify this and purpose is more helpful in resolving structural ambiguity compared to lexical ambiguity so for example look at this cartoon we have Sherlock we have to sort of captions one is Sherlock saw the man using binoculars so as we can see from the photo Sherlock is the one using binoculars and he's seeing the man using the binoculars the other one same captions Sherlock saw the man using for monoculars here Sherlock is seeing the man who is using binoculars so is this lexical or structural ambiguity this would be structural ambiguity because it's the structure of the sentence or the sort of the grammatical ambiguity of the sentence that creates the ambiguity it's not that any one word or phrase is ambiguous in terms of its meaning here are a couple more examples so on one side we have a slide saying $1000 fine for littering this is an example of lexical ambiguity because it's unclear what the word fine means is this sign saying $1000 is OK to litter as long as you're littering $1000 or is the find the penalty right for littering so an $1000 the amount of the penalty because the word fine is ambiguous this is lexical ambiguity on the other side here we have a photo of a woman on the phone saying oh and I've started seeing a therapist so does that mean she's dating the therapist or does that mean she's actually seeing a therapist sitting on the bench next to her again here we have an ambiguous word and it's seen and because it's that word that's ambiguous this is lexical ambiguity rather than structural ambiguity so what about absurdity which is another exception to the plain meaning rule what does absurdity mean there's lots of different interpretations one is something that conflicts with congressional intent and an another possible definition given by courts is a consequence so monstrous that all of mankind would without hesitation unite in rejecting the application a third definition would be something shocking to one's conscious there's really no agreed-upon definition but the key thing to remember is that absurdity is rarely invoked by the Supreme Court so I think often students will more quickly reach the conclusion that something is absurd than a court would it's actually quite rare and that concludes section unit 1.1 we'll now move on to unit 1.2 on intrinsic sources or grammar so the general rule is that grammar and punctuation matter unless the ordinary meaning suggests they should be ignored this rule is a rebuttable presumption so sometimes there is a reason for ignoring grammar take this example it says a panda eats shoots and leaves take this is ambiguous right we have because there's no comma in this phrase this could mean the Panda eats and then shoots with a gun and leaves the scene or mean that a panda eats consumes shoots and leaves without a comma in the sense in the sentence we don't really know which one is being said another grammatical issue is the use of an vs. or now generally and means both things a norm means either thing but there are occasions when courts have interpreted an to meet or an or to mean and usually however we would start by giving them their normal grammatical meaning with respect to singular and plural though the presumption is that when Congress uses the singular it means the plural and vice-versa that these aren't important distinctions so we would normally construe one as including the other similarly with masculine feminine and neuter we will it'd presume that one includes the other unless there's some reason to think a statute is specifically referring to women or men just because Congress used to say a male pronoun we would interpret it to apply to women as well mandatory versus discretionary language is also key in statutory interpretation so words like shall may and must are important to pay attention to shall and must are normally construed as mandatory whereas may is normally construed as discretionary but there are also cases suggesting that what really matters is whether the statute provides a penalty for the failure to comply so if it does provide a penalty it's likely mandatory and if it's not then the term could be interpreted a discretionary even if it says shall so that concludes unit 1.2 and next we'll be turning to linguistic annex