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INTRODUCTION TO AMERICAN LAW (LAW5HAL). LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law Professor Thomas Lundmark 10-12, 15-16 February 2010. Wednesday, 10 February 2010 morning session: historical background

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Professor Thomas Lundmark

10-12, 15-16 February 2010

Wednesday, 10 February 2010

morning session: historical background

reading assignment: Farnsworth pp. 1-13, Lundmark pp. 5-15, 53-55, 74-77

afternoon session: legal training

reading assignment: Farnsworth pp. 15-35

Thursday, 11 February 2010

morning session: legal profession

reading assignment: Farnsworth pp. 23-35

afternoon session: judicial systems

reading assignment: Farnsworth pp. 37-45, Lundmark pp. 74-81, 85-86, 90-91

Friday, 12 February 2010

morning session: legislation

reading assignment: Farnsworth pp. 61-81, Lundmark pp. 93-101, 105-106

afternoon session: case law

reading assignment: Farnsworth pp. 47-60

Monday, 15 February 2010

morning session: civil procedure

reading assignment: Farnsworth pp. 99-110, 115-117

afternoon session: constitutional rights

reading assignment: Farnsworth pp. 147-155, Lundmark pp. 109-120

Tuesday, 16 February 2010

morning session: fundamental rights reading assignment: Lundmark pp. 160-168

afternoon session: equal protection

readingassignment: Lundmark pp. 169-175, 179, 184-200

today s topics
today's topics

history of statutory law-making

history of the forms of action

legal fictions

American federalism

characteristics of statutes

statutory construction (also 'interpretation')

today s topics4
today's topics

history of statutory law-making

history of statutory law making hunting writ william i 1066 1087
history of statutory law-makingHunting Writ, William I (1066-1087)

Willem king gret Gosfregð scirgerefan and ealle þa burhwaru binnan Lundene freondlice.  And ic beode eow þat ge on Lanfrances lande archbisceopes þe gebyrað into Hergan ne mman ne heort ne hindan ne hran, ne ge nates hwon ðærinne æig ðing huntian butan ðam he rylf bebyt oððe leofe togyfð.

Translation: King William extends friendly greeting to Geoffrey the sheriff and all the citizens of London.  And I order you that you not take stags or hinds or other deer from the land of Archbishop Lanfranc at the manor of Harrow, and that you not hunt anything there without the archbishop's order or licence.

history of statutory law making
history of statutory law-making

parliament concentrated on financial matters, including the organization and defense of the state

legislation was problem-oriented

judges were seen as discovering, declaring, and applying the law, not making it

history of statutory law making7
history of statutory law-making

In the seventeenth-century struggle between Parliament and the Crown, the common lawyers and judges threw their weight onto the side of Parliament and this alliance “made a clear issue between tradition, common law and the medieval view [that the king was under Godand the law] on one hand and, on the other, the newer idea of statecraft, absolutism and a supreme royal equity” (Plucknett, p. 283).

history of statutory law making william blackstone 1723 1780
history of statutory law-makingWilliam Blackstone (1723 - 1780)

lawyer, doctorate in civil law, professor of common law, then judge

Book I "Rights of Persons," including "absolute rights of individuals"

Book II "Rights of Things"

Book III covers "Private Wrongs"

Book IV "Public Wrongs"

essentially an encyclopedia and commentary on the common law, ie, case law

today s topics9
today's topics

history of the forms of action

history of the forms of action
history of the forms of action

the common law developed within the framework of form pleadings or 'actions'

By the end of Henry II's reign there were 75 (at other times 40) stereotyped forms of writ, each with its own title indicating its function

the clerks of the royal Chancery would issue them as a matter of course to anyone who could pay for them (cf. court fees)

available to all Englishmen, whether of Norman, Saxon, or Scandinavian stock, and wherever they happened to live

activities not covered by an action were outside the purview of the (common) law

history of the forms of action11
history of the forms of action

There were three groups of actions:

real: recovery of the thing

personal: recovery of damages

mixed: recovery of both the thing and damages

history of statutory law making forms of action
history of statutory law-makingforms of action

example: action in debt

had two elements:

defendant owes a fixed sum of money (such as an unpaid loan, rent, or purchase price, not compensation for ordinary breach of contract)

defendant received a quid pro quo or, later, "consideration"

later replaced by assumpsit

history of statutory law making forms of action13
history of statutory law-makingforms of action

Notice how the 'formal' forms of action protected 'substantive' rights

For example, debt stated positively: One who (in a commercial context) promises to pay a fixed sum of money shall pay that sum.

history of statutory law making forms of action14
history of statutory law-makingforms of action

The forms of actions imposed limits on the jurisdiction of the common law courts

but, because they were stated so abstractly, the courts had considerable room for interpretation

Cf. abstract codifications

history of statutory law making forms of action15
history of statutory law-makingforms of action

the common law forms of action have, for the most part, been replaced by modern pleading that is intended only to put the defendant on notice of the basic substance of the claim (see lecture on civil procedure)

a huge number of statutes have been enacted in their place

the statutes extend the law far beyond the original restraints of the common law writs

early administration of justice in england
Early administration of justice in England
  • Courts of the shire or hundred
    • Local courts
    • For the free men of the district
    • Criminal and civil jurisdiction
  • Feudal courts
    • For tenants of a lord
    • Civil disputes only
  • King’s courts, both central and itinerant
    • Court of last resort
    • Court for tenants in chief
    • Cases in which the king has a special interest, e.g., serious criminal cases, which were a source of funds
  • Ecclesiastical courts or “courts Christian”, important for laity and clergy
history of the writ system king extends his influence
History of the writ system: king extends his influence
  • Writ: written command from the Sovereign to perform an act or, if not, to defend one’s position before the king’s judges
  • issued for a fee by the Chancery and became an important source of revenue
  • This was the only way to commence an action
  • Writs reduced the jurisdiction of the other courts:
    • Criminal cases would be removed from the local courts to the king’s courts, meaning king received lands confiscated as penalty
    • church's judicial powers limited to ecclesiastical cases only in 1285, but family law and law of succession remained with church
  • Writs helped consolidate the king’s power
history of the writ system reaction of the barons
History of the writ system: reaction of the barons
  • 1215 Magna Carta: the Writ of Praecipe shall not be issued so as to deprive a free man of his court,
    • i.e., so as to deprive the lord of the manor of cases which would ordinarily come to his court
    • and generate lands and revenue for the lord
  • Provisions of Oxford 1258
    • published in Latin, French, and Middle English, the first government document to be published in English
    • established a council of 24,
      • half selected by the Crown,
      • half by the barons
    • prohibited further expansion of the writ system
  • Statutes of Westminster 1285: Chancery may not vary the writs to fit new cases
history of the writ system courts react to the statutes of westminster
History of the writ system: courts react to the Statutes of Westminster
  • Roughly 40-75 common law writs (number varied)
  • Courts used of ‘legal fictions’ to expand the their jurisdiction
    • Breach of the king’s peace (pax Regis) originally was interpreted narrowly
    • It was expanded to mean any use of criminal force
  • Compare applying statutes by analogy, which isn’t done nowadays in the common law, but is quite common in Germany, for example
legal fiction extending the jurisdiction of the exchequer
Legal fiction extending the jurisdiction of the Exchequer
  • Exchequer had jurisdiction for taxes and obligations to the Crown
  • The Court of King's Bench had a heavy caseload
  • litigants would plead that they owed money to the Crown (which was a fiction), but could not pay the debt because the defendant had not paid the debt he owed
legal fiction avoiding trial by combat
Legal fiction avoiding trial by combat
  • Claimants contesting title to real property writ of right intended for claimants contesting title to property
  • problem: the defendant could insist on wager of battle
  • (Painting is from Germany)
legal fiction avoiding trial by combat22
Legal fiction avoiding trial by combat
  • solution: claimants employed the assize of novel disseisin procedure, which called for trial by jury
  • But they had to allege that they had leased land to John Doe who had been ousted by Richard Roe who claimed a contrary lease by the defendant
  • Later: action of (or ‘in’) ejectment, which still survives outside England
legal fictions jeremy bentham 1748 1832
Legal fictions: Jeremy Bentham (1748 - 1832)
  • viewed legal fictions are "a syphilis which runs into every vein and carries into every part of the system of principles of rottenness“
  • coined the word "codification“
  • Very influential in US
the writ system
The writ system

three groups of actions, according to remedy:

  • real: recovery of the thing
  • personal: recovery of damages
  • mixed: recovery of both the thing and damages
real actions i e involving title to real property
“Real” actions, i.e., involving title to real property
  • Originally the jurisdiction for the king’s courts concerned disputes involving land since all of society was organized under the land tenure system of the feudal law
  • upon a freeholder’s (landowner’s) death, title passed to his heirs
  • This refers to intestate succession, i.e., without a will
  • Until 1660, lands were not freely alienable by will
  • Testamentary law (concerning succession to personal property) was within the jurisdiction of the ecclesiastical courts until 1857
  • Failure to have an heir caused the land to escheat to the sovereign

the ‘personal’ actions (starting in the 13th C):

  • replevin
  • detinue
  • trover
  • debt
  • account
  • covenant
  • trespass
  • case
  • assumpsit


  • wrongful distraint (taking) of chattels (movables)
  • distrainee posts security; distrainor must surrender the goods, usually cattle, or the sheriff will raise the posse comitatus and retake them
  • still in use
  • He who wrongfully takes the property of another shall return it to him.
replevin codified in california
replevin codified in California
  • California Code of Civil Procedure § 667: In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.


  • unjust detention (holding) of chattels (movables)
  • defendant to surrender the goods or pay damages
  • replaced by trover
  • He who unjustly holds the property of another shall return it to him or compensate him for his loss.


  • Originally, the claim was good only when the plaintiff had lost his goods and the defendant had found them, but later the action required no more than a claim that the defendant refused to turn over personal property that belonged to the plaintiff.
  • often fictitious, as when the defendant purchased from the original wrongdoer
  • no longer used
  • One who comes into the possession of stolen or lost property must pay the rightful owner for it.
trover codified in california
trover codified in California
  • California Civil Code § 2080: … Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property, or saves any domestic animal from harm, neglect, drowning, or starvation, shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property. …
  • See also California Penal Code § 485: One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.


  • defendant owes a fixed sum of money, such as an unpaid loan, rent, or purchase price (not compensation for ordinary breach of contract)
  • defendant received a quid pro quo or, later, "consideration"
  • replaced by assumpsit
  • One who (in a commercial context) promises to pay a fixed sum of money shall pay that sum.
debt codified in california
debt codified in California
  • California Civil Code § 1550: It is essential to the existence of a contract that there should be:

1. Parties capable of contracting;

2. Their consent;

3. A lawful object; and,

4. A sufficient cause or consideration.

  • California Civil Code § 3300: For the breach of an

obligation arising from contract, the measure of damages … is the amount which will compensate the party aggrieved for all the detriment proximately

caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.



  • defendant has collected money on behalf of the plaintiff and has not given a proper account
  • auditor is appointed to supervise the account
  • gradually annexed by the Court of Chancery
  • One who holds money on another’s behalf must render proper accounts.
account in california
account in California
  • Called “[cause of] action for accounting”
  • not codified, but recognized as an equitable cause of action
  • To state a cause of action for accounting, a plaintiff must allege

(1) a fiduciary relationship or other circumstances appropriate to the remedy; and

(2) a balance due that can only be established by an accounting. (Witkin, California Procedure, Pleading, § 820)



  • defendant has not performed an obligation contained in a signed and sealed document
  • originally covering leases of land
  • obligation must not be a debt, even though attested under seal
  • still used for promises under seal
  • Promises under seal must be performed.
covenant in california
covenant in California
  • California Civil Code § 1629: All distinctions between sealed and unsealed instruments are abolished.
  • (For rules governing contracts under seal in American jurisdictions that have not abolished the distinction, see Rest.2d, Contracts §92 et seq.)


  • defendant used unlawful force and injured the plaintiff’s land, body, or chattels
    • trespass vi et armis et contra pacem Domini Regis ("with force and arms and against the peace of the Lord King") for injuries to the plaintiff or his property,
    • trespass de bonis asportatis ("for goods carried away"), and
    • trespass quare clausum fregit ("whereby he broke the close") for an unlawful entry on the premises.
  • plaintiff is in possession and seeks compensation, not return of the goods
  • Maitland once called trespass "that fertile mother of actions." It is still in use.
  • One who unlawfully uses force and thereby injures the person or property of another shall pay that person compensation

(trespass on the) case

  • 15th century
  • defendant negligently or by deceit (intentionally) injured the person or property of another
  • includes slander and libel, but few precedents during the Middle Ages, since bad words are dealt with by the local courts, and defamation by the ecclesiastical courts
  • not used as such, but gave birth to our entire modern system of negligence law
  • One who intentionally or negligently injures the person or property of another shall pay that person compensation.
trespass on the case codified
(trespass on the) case codified
  • Cal. Civil Code § 43: Besides the personal rights mentioned or recognized in the Political Code [now Government Code], every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.
  • Cal. Civil Code § 1708(1872 version): Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights.
  • Cal. Civil Code § 1714(1872 version): Everyone is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, wilfully or by want of ordinary care, brought the injury upon himself.


  • 16th century became dominant for contract
  • defendant undertook to do something for the plaintiff but did so badly or not at all (misfeasance and nonfeasance), causing injury to the plaintiff’s person or goods (The defendant might be a surgeon who has unskilfully treated the plaintiff or his animals so that he or they have suffered some physical harm.)
  • general form by which contracts not under seal can be enforced by way of action for damages
  • no longer used as such, but modern law of contracts developed out of general (implied by law) and special (express promise) assumpsit
  • One who breaches a contract shall pay the non-breaching party damages.
assumpsit codified in california
Assumpsit codified in California
  • California Civil Code § 1549: A contract is an agreement to do or not to do a certain thing.
  • California Civil Code § 3281: Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.
  • California Civil Code § 3300: For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.
19 th century reforms in england
19th century reforms in England
  • For personal forms of action, the Uniformity of Process Act 1832 imposed a single uniform process.
    • The older forms of writ were abolished and a new form of writ was to be used
    • although the writ had to state the form of action that was being used
  • most real and mixed actions were abolished, by the Real Property Limitation Act 1833
  • Common Law Procedure Act 1852 dropped the requirement that any particular form of action should be mentioned within a writ
  • Judicature Act 1873 repealed requirement of employing the forms of action
  • Judicature Act 1875 amalgamated all the old courts (Chancery, King’s Bench, Common Bench, Exchequer, Court of Admiralty, Court of Probate, Court of Divorce)
in the united states abraham lincoln in illinois 5 000 cases
In the United States: Abraham Lincoln in Illinois (5,000 cases)

At law (incl. partners)

At equity (incl. partners)

mortgage foreclose (more than 200 cases)

petition for injunction to partition real estate (142 cases)

petitions to sell real estate to pay debts (75 cases)

divorce cases (145)

dower petitions (44)

  • assumpsit (1,240 cases)
  • debt (667 cases)
  • criminal (27 cases)
  • appeals before the Illinois Supreme Court (400)
  • cases in the federal district and circuit courts (at least 340)
in the united states
In the United States
  • Pleadings in colonial North America were less formal
    • both trespass and case were used for the recovery of real property and for specific items of personal property
    • trover and assumpsit were frequently used interchangeably.
  • US Rules of Civil Procedure (1938), Rule 2: There is one form of action -- the civil action.
    • Applies only to the federal courts
    • Although many states have adopted it
in the united states46
In the United States
  • Cal. Code Civ. Pro. §425.10: (a) A complaint or cross-complaint shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language and (2) a demand for judgment ….
  • However, In the common law action of general assumpsit, it was customary to plead an indebtedness by using the “common counts.” “common counts” survive:
    • Money Had and Received
    • Work and Labor (Services)
    • Goods Sold and Delivered
    • Money Lent or Money Paid
    • Account Stated
    • Quantum Meruit (Services)
    • Quantum Valebant (Goods Sold)
frederic william maitland 1850 1906
Frederic William Maitland (1850–1906)
  • “The forms of action we have buried, but they still rule us from their graves.”
today s topics49
today's topics

history of statutory law-making

American federalism

characteristics of statutes

statutory construction (also 'interpretation')

reasons for states
reasons for states

divide governmental power to avoid tyranny, caprice, oppression


- adoption by unmarried persons/pair

- civil unions or same-sex marriages


democratic involvement


importance of the states
importance of the states

police power

- health

- morals

- safety

- general welfare

traditionally local concerns

- education

- land-use

- law enforcement including criminal law

- courts

- private law including family law

federal recognition of states
federal recognition of states

former colonies

Art. VI, § 3: New states may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.


March 2, 1836 Republic of Texas declared independence from Mexico

December 29, 1845 territory of Republic of Texas admitted as state

federal obligations to states
federal obligations to states

Art. IV, § 4: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Amend. XVII (1913): The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years ….

constitutional directives to the states in the articles
constitutional directives to the states in the Articles

must accord "Full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other State"

must extradite persons charged with a crime in another state

must accord citizens of other states the same "Privileges and Immunities" that automatically inure to its own citizens

constitutional prohibitions against the states in articles
constitutional prohibitions against the states (in Articles)

enter into treaties

coin money

grant titles of nobility

tax imports and exports (w/o consent)

keep troops in time of peace

(w/o consent)

engage in war (w/o consent) unless invaded

(McCain concession speech)

outbreak of civil war
outbreak of civil war

Dec. 20, 1860 Lower South secedes: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas

Mar. 4, 1861 Lincoln’s inauguration

April 12, 1861 firing on Fort Sumter

Upper South secedes: Virginia, Arkansas, North Carolina, Tennessee

constitutional prohibitions against the states in amendments
constitutional prohibitions against the states (in Amendments)

no slavery

extend franchise (right to vote)

- former slaves

- women

- 18-year-olds

privileges and immunities →

due process →

equal protection →

14 th amend 1 1868
14th Amend. § 1 (1868)

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.

10th amendment
10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

historical states rights issues
historical 'states' rights' issues


racial segregation

drinking age for alcohol

speed limits

carrying of guns

printz v united states facts
Printz v. United States: facts

1981 Jim Brady shot in Reagan assassination attempt

federal Brady Handgun Violence Prevention Act

chief law enforcement officer of each local jurisdiction must conduct background checks on applicants for gun permits

officials in Montana and Arizona challenged the law

printz v united states holding
Printz v. United States: holding

Congress cannot … conscript … the States' officers directly

Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers … to administer or enforce a federal regulatory program

printz v united states effects
Printz v. United States: effects

federal government created background- check database

vast majority of local and state law enforcement officials voluntarily conduct background checks

victory for the NRA?

gun politics
gun politics

hand-gun bans


Washington, DC

San Francisco

homicide statistics
homicide statistics

Honolulu 2.0

El Paso 2.4

San Jose 3.1

Austin 3.7

San Diego 3.8

Portland 3.9

Seattle 4.5

New York 7.3

San Francisco 7.3

Oklahoma City 8.5

reserved jurisdiction of the states
reserved jurisdiction of the states

political agenda


- minimum wage

- maximum hours

- age discrimination




today s topics81
today's topics

history of statutory law-making in common law jurisdictions

characteristics of statutes statutory construction in common law jurisdictions

characteristics of legislation new subject matter areas of regulation
characteristics of legislation'new' subject-matter areas of regulation

inheritance of personal property


public administration



financial services


environmental law

regulatory competition law


and modern statutes are typically even more detailed than older statutes

characteristics of legislation piecemeal legislation
characteristics of legislation piecemeal legislation

legislation on breastfeeding in California:

breastfeeding allowed in public (law does not apply to a private home of another). California Civil Code §43.3

lactation services or information must be made available by all hospitals/maternity care facilities. California Health & Safety Code § 123360 and § 123365.

breastfeeding mothers excused from jury duty. California Code of Civil Procedure § 210.5

employers must make accommodations for employed breastfeeding mothers. California Labor Code §§1030, 1031, 1032, 1033

characteristics of legislation legislative overruling
characteristics of legislationlegislative 'overruling'

UK: Law of Property (Miscellaneous Provisions) Act 1989 (c. 34)

sec. 3. The rule of law known as the rule in Bain v. Fothergill is abolished in relation to contracts made after this section comes into force.

characteristics of legislation legislative overruling86
characteristics of legislationlegislative 'overruling'

California Civil Code § 1714

(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.

(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal. 3d 144 and to reinstate the prior judicial interpretation of this section as itrelates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.

today s topics87
today's topics

history of statutory law-making in common law jurisdictions

characteristics of statutes in common law jurisdictions

statutory construction

statutory construction parliamentary supremacy
statutory construction parliamentary supremacy

called 'parliamentary supremacy', 'legislative sovereignty' etc.

If there is a conflict between the common law and statutory law, statutory law prevails

possible exception: state and federal constitutions

us constitution
US Constitution

Marbury v. Madison (1803)

It is emphatically the province and duty of the judicial department to say what the law is

[A] legislative act contrary to the constitution is not law ….

statutory interpretation construction general rules
statutory interpretation/construction: general rules

literal (textual, plain-meaning)  

historical (original intent, intentionalism)

functional (purposive, teleological, policy-oriented)

literal textual plain meaning
literal (textual, plain-meaning)

"It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion." Caminetti v. U.S., 242 U.S. 470 (1917)

"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'

"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332 (1929).

"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996)

literal textual plain meaning92
literal (textual, plain-meaning)

The court does not ask what the legislation might be intended to say, just what it actually says.

What is the literal and ordinary meaning of the words used?

literal textual plain meaning93
literal (textual, plain-meaning)

R. v. Human Fertilisation and Embryology Authority ex parte Blood [CA 1997]

married couple decided to have a baby

husband contracted meningitis and fell into coma

sperm extracted and frozen

husband died without regaining consciousness

statute required a man's written consent for the use of his sperm in the UK

literal textual plain meaning94
literal (textual, plain-meaning)

United States v. Drury, 11th Circuit Court of Appeals

Drury accused of soliciting the murder of his wife

18 USC § 1958(a): "Whoever...uses the mail or any facility in interstate commerce...with the intent that a murder be committed...".

Drury used a telephone capable of calling out of state, but did not actually call anyone out of state

Amended to read “facility of” rather than “in”

historical rule original intent intentionalism
historical rule (original intent, intentionalism)

Taking into consideration all circumstances at the time of the creation of the statute, the court determines what the legislators intended with their actual words.

What did the original legislators intend with the words that they used?

use of traveaux préparatoires/legislative history. Pepper v Hart [HOL 1993]

originalist or anti originalist
Originalist or anti-originalist?

Antonin Scalia (born 1936)

'In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption'

originalist or anti originalist97
Originalist or anti-originalist?

Charles Evans Hughes (1862-1948)

'We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution'

originalist vs anti originalist
originalist vs. anti-originalist

federalism vs. failure of the states

respect for democratic institutions vs. inherent danger of majoritarian rule

original intent vs. changing world

respect for separation of powers vs. recognition of courts' role in protecting rights

historical rule original intent intentionalism99
historical rule (original intent, intentionalism)

Train v. Colorado PIRG (US 1976)

Federal Water Pollution Control Act (FWPCA) directs the EPA Administrator to regulate the discharge of "pollutants" into navigable waters

"pollutant" includes "radioactive materials"

The Nuclear Regulatory Commission pursuant to the Atomic Energy Act regulates discharge by its licensees of radioactive materials

Must the EPA also regulate radioactive discharges from licensees?

legislative history reflects a congressional intention not to alter the NRC's control

historical rule original intent intentionalism100
historical rule (original intent, intentionalism)

10th Circuit: text prevails

USSCt: congressional purpose prevails

historical rule original intent intentionalism101
historical rule (original intent, intentionalism)

“golden rule” aka “avoiding absurdity”

Ordinary words should be given their ordinary meaning and technical words should be given their technical meaning unless it would lead to an absurd result.

Reason: we should not assume Parliament/Congress/legislature intended to do something absurd

(Can also be understood as a caveat to the plain-meaning rule)

historical rule original intent intentionalism102
historical rule (original intent, intentionalism)

Kirby v. United States (US 1868)

federal statute: "That if any person shall knowingly and willfully obstruct or retard the passage of the mail or of any driver or carrier or of any horse or carriage carrying the same, he shall, upon conviction, for every such offense pay a fine not exceeding one hundred dollars."

Kirby, a county sheriff, arrested Farris on a bench warrant after Farris had been indicted for murder

Farris was arrested while carrying the mail

holding: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter."

golden rule

historical rule original intent intentionalism103
historical rule (original intent, intentionalism)

Green v. Bock Laundry Machine (US 1989)

Rule 609(a)(1) of the Federal Rules of Evidence: evidence that a witness has been convicted of a felony "shall" be admitted for the purpose of attacking the witness's credibility "only if" the court determines that the probativeness of the evidence outweighs its prejudice "to the defendant“

Does this also apply to civil plaintiffs?

Held: It is unfathomable why a civil plaintiff -- but not a civil defendant -- should be subjected to this risk. Thus, we agree with the Seventh Circuit that, as far as civil trials are concerned, Rule 609(a)(1) "can't mean what it says.“

example of golden rule

functional purposive approach
functional (purposive) approach

Traceable to the “mischief rule” in Heydon's Case (1584): interpretation should aim to remedy the mischief (defect, problem, etc.) that the statute itself aimed to remedy.

The court tries to find the purpose of the legislation, rather than just looking at the words used, or even what the individual legislators thought

Asks the question: What is the general underlying (public) purpose of the statute?

aka teleological, policy-oriented, legislative purpose, etc.

functional purposive approach105
functional (purposive) approach

Gorris v. Scott (Court of Exchequer 1874)

Contagious Disease

(Animals) Act of 1869

required carriers by

water to provide separate

pens for transported animals

The plaintiff’s unpenned

sheep were washed overboard by a storm

HELD: statute was aimed at preventing the spread of contagious diseases among animals; the harm suffered was not within the risk the danger of which motivated the passage of the statute

functional purposive approach106
functional (purposive) approach

A Washington statute has a procedure for declaring dogs “dangerous” or “potentially dangerous”. Further:

“The owner of any dog that aggressively attacks and causes severe injury or death of any human, whether or not the dog has previously been declared potentially dangerous or dangerous, shall, upon conviction, ….” Rev. Code Wash. §16.08.100(3)

functional purposive approach107
functional (purposive) approach

State v. Bash (Wash. 1996)

Can an owner be convicted if her dog has not been declared “dangerous” or “potentially dangerous”?

No legislative history available

Trial court: guilty

Supreme Ct of Washington: “legislative intent” is to punish owners who’ve been placed on notice

functional purposive approach108
functional (purposive) approach

Church of the Holy Trinity v. United States (US 1892)

It constituted a crime to assist in migration “any alien…under contract or agreement…to perform labor or service or any kind in the United States”

Church of the Holy Trinity “called” a pastor from England

USSC: The “evil” at which the statute was directed was importation of “an ignorant and servile class of foreign laborers” who would work “at a low rate of wages,” thus “break[ing] down the labor market”

traditional canons rules of statutory construction
traditional canons (rules) of statutory construction

strict construction(abandoned)

traditional literal rule (abandoned)

ejusdem generis (treating items 'of the same kind' together)

noscitur a sociis ('it is known from its associates')

expressio unius est exclusio alterius ('the expression of one thing is the exclusion of another')

traditional canons strict construction no longer applied
traditional canons:strict construction (no longer applied)

A statute in derogation of the common law is to be strictly construed.

California Civil Code § 4. “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.” [1872]

traditional canons noscitur a sociis
traditional canons:noscitur a sociis

'it is known from its associates'

words in the same context are to be construed by reference to other words in that context

they are thus a family

traditional canons ejusdem generis
traditional canons:ejusdem generis

treat items 'of the same kind' together

When a list of specific items belonging to the same class is followed by general words, the general words are to be taken as referring only to those things of the same class as specifically mentioned

E.g., ‘cats, dogs, and other animals’ does not include wild animals.

traditional canons expressio unius est exclusio alterius
traditional canons:expressio unius est exclusio alterius

'The expression of one thing is the exclusion of another'

When a list of specific items is not followed by general words, it should be taken as exhaustive.

Anything that is not mentioned will not be covered by the act.

people v one 1941 ford 8 stake truck 26 cal 2d 503 1945115
People v. One 1941 Ford 8 Stake Truck, 26 Cal. 2d 503 (1945)

Health and Safety Code §11610

“A vehicle used to unlawfully transport any narcotic, or in which any narcotic is unlawfully kept, deposited or concealed, or in which any narcotic is unlawfully possessed by an occupant thereof, shall be forfeited to the State.”

Exception →

people v one 1941 ford 8 stake truck 26 cal 2d 503 1945116
People v. One 1941 Ford 8 Stake Truck, 26 Cal. 2d 503 (1945)

§ 11620: The claimant of any interest in a seized vehicle has the right to prove his lien or sales contract to be bona fide and that his title ‘was created after a reasonable investigation of the moral responsibility, character, and reputation of the purchaser, and without any knowledge that the vehicle was being, or was to was to be, used for the purpose charged.’

§ 11622: ‘In the event of such proof,’ the vehicle must be returned to the lien claimant or vendor

people v one 1941 ford 8 stake truck 26 cal 2d 503 1945117
People v. One 1941 Ford 8 Stake Truck, 26 Cal. 2d 503 (1945)
  • At that time Schiller asked Donata for permission to take the truck on a personal errand.
  • Donata refused the request and told Schiller to return the truck to the company's place of business upon making the delivery.
  • After delivering the cucumbers, Schiller went to Wilshire Boulevard and Vermont Avenue, four or five miles west of any reasonable route he might have traveled in returning from making the delivery.
  • There he secured some marijuana.
  • As he was returning to his place of employment the truck, which appellant owned, was seized, and this forfeiture proceeding later initiated.
  • Appellant had no knowledge of the illegal use of the truck.

The appellant was engaged in the wholesale fruit and vegetable business in Los Angeles

Appellant's truck dispatcher, Mike Donata, directed one of appellant's other employees, Irving Schiller, to take one of the company's Ford trucks and made a delivery of cucumbers

people v one 1941 ford 8 stake truck 26 cal 2d 503 1945118
People v. One 1941 Ford 8 Stake Truck, 26 Cal. 2d 503 (1945)

Holding: “The use made by Schiller of the truck of his employer is within the express terms of the legislation enacted for the purpose of curbing the traffic in narcotics and, applying the doctrine of expressio unius est exclusio alterius, is not one which exempts the owner from the drastic statutory penalty.“