Legislation: Interpreting and Drafting Statutes, in Theory and Practice

This casebook serves courses in legislation, statutory interpretation, and legislation & regulation—the processes of enacting, implementing, and interpreting our nation’s laws. While most casebooks present these issues principally through judicial opinions construing statutes, this casebook trains students’ focus on the statutes themselves. Extensive statutory excerpts precede most judicial opinions, and students are directed to work their way through the text on its own terms before grappling with judicial readings. Later chapters offer case studies on not only the statutory text but also, where relevant, the statute’s legislative history, and agency or executive branch interpretations rendered in the form of rules, guidance, or opinion letters. These case studies enhance understanding of how potential interpretations or applications narrow over the course of the interpretive process until a prevailing view emerges, often as a result of an accretion of judicial (and sometimes administrative) decisions interpreting the text over time and as applied to new and evolving problems. To do so, the casebook includes numerous recent decisions from the 2018 and 2019 Supreme Court terms, including Babb v. Wilkie (2020), Barr v. Am. Assoc. of Pol. Consultants (2020); Bostock v. Clayton Cty. (2020), New Prime v. Oliveira (2019), and U.S. Forest Serv. v. Cowpasture River Preserv. Assoc. (2020).

As a matter of methodology, the casebook regularly prompts students to assess the (often unstated) empirical and jurisprudential assumptions that courts make when employing tools of statutory construction. It emphasizes not only the interpretation of language but also its usage. Readers are asked to examine a statute’s choice of words and structure and to consider other choices legislators (and administrative agencies) could have made to address the problem. It devotes extensive treatment to new and evolving debates, including the use of dictionaries and corpus linguistics as sources of ordinary meaning, the distinction between ordinary and literal meaning; the choice to seek the original or current public meaning of the statutory term or phrase in question; whether agency deference is warranted in the interpretation of criminal statutes; and the continuing viability of the agency deference doctrines more generally.

The last section of the casebook provides students with several opportunities to evaluate the range of considerations and tradeoffs in negotiating and drafting legislation, as applied to several relatable, “inspired by real life” policy issues. When taught with the aid of the accompanying teaching materials for instructors, this casebook is the first designed specifically so that instructors may enable students to play an active role in learning the process of drafting, implementing, and interpreting statutes. Supplemental exercises call on students, working in groups, to successively take on the roles of legislators, administrative agency regulators, and courts. We have found that the process of “learning by doing” not only improves students’ understanding of drafting, implementing, and interpreting statutes, but also enhances their appreciation of the nuances and intricacies entailed in each stage of those processes.

Imprint: Foundation Press
Series: University Casebook Series
Publication Date: 12/14/2020
Related Subject(s): Legal Method