Leg Reg

In People v. Smith, the Michigan Supreme Court addressed the ques!on of whether an M-1 Rifle count as a kind of "dangerous weapon" within the meaning of M.C.L.A. §750.227, which made it a crime to carry - concealed or in a car operated by the person with the weapon - "a dagger, dirk, s!le"o, or other dangerous weapon." Which of the following best summarized what the court concluded and why?

That an M-1 rife is not a dangerous weapon under the statute - because it is not the type of dangerous weapon as the specific items on the list preceding - dagger, dirk, and s!le"o - all of which are stabbing weapons and not firearms.

Which of the following do the casebook authors say - in the notes after Public Citizen v. US Department of Justice - is a reason that textualists have sometimes given for adhering to the ordinary meaning a statute even where they appear to concede that meaning produces a glaring anomaly?

That even if a statue is absurd in certain respects, that absurdity may have been a necessary consequence of the process that produced bargain - between different interests groups - that allowed the statute to attract enough votes to become law.

Which of the following do both the Court and the dissent agree is true in General Dynamics Land Systems v. Cline, a 2004 case about what the ADEA means when it bans prohibition on discrimination in employment "because of . . . age"?

That the word "age" is ambiguous in the sense that it can refer generally to how long someone has lived (whether they are young or old) or to a state of being old.

In Nix v. Heddon, the Supreme Court had to decide whether to treat tomatoes as fruits or vegetables for purposes of determining what tariff would be applied to it under a Tariff Act of 1883. Which of the following best described the court's reasoning and conclusion in that case?

Although tomatoes would be classified as fruits by botanists, in common language they are treated as vegetables - and the Court should give them their ordinary meaning since there was no evidence they acquired any specialized meaning in trade or commerce.

What - in the view of all the Supreme Court's justices in Green v. Bock Laundry Machine Co. - made it absurd to give the then existing version of Rule 609 of the Federal Rules of Evidence its plain meaning (i.e., to apply - as written - its rule regarding when one can impeach a witness with evidence that that that witness had previously been convicted of a certain kind of crime)?

Giving Rule 609 its plain meaning would have irrationally subjected civil plaintiffs and civil defendants to a different standard - allowing the judge only to consider the possible prejudicial effect of past conviction evidence when introduced against the civil defendant, but not when introduced against the civil plaintiff.

Which of the following best summarized the reasoning and conclusion of Justice Marshall (writing for the Court) in Moskal v. United States - about whether the titles used in a car-selling scheme in which Moskal participated when they were created by Virginia authorities on the basis of false information (which those authorities believed to be true)?

Justice Marshall (and the Court) found that titles were "falsely made" - as prosecutors claimed them to be under 18 U.S.C. §2314 - because the ordinary meaning of "falsely made" encompassed documents that are made in a way that incorporated false information and Congress's purposes in enacting 18 U.S.C. §2314 clearly included stopping fraud of the kind in this title scheme.

In his King v. Burwell opinion (for the Court), which of the following reasons did Chief Justice Roberts give for finding that adhering to the plain meaning of "states" in determining who qualifies for subsidies would be like assuming that Congress has hidden an elephant in a mouse hole?

One would not expect a provision that eliminates (in certain exchanges) one of the three essential components of the Affordable Care Act's scheme to be hidden in the formula for calculating tax credit amounts, which is where the ACA includes language indicating subsidies were available to consumers "enrolled in or through an Exchange established by the State."

In Taniguchi, the case that raised the question of whether a statute's use of "interpreter" (in 28 U.S.C. § 1920(6)) should include one who translated documents -- and not just one who translates orally, Justice Alito dealt with the question of how to understand the following definition of interpreter: "one that translates; esp.; a person who translates orally for parties conversing in different tongues." Which of the following best summarizes what Justice Alito concluded about this definition?

It supports defining "interpreter" as meaning only one who translates orally, because the part of the definition after the sense divider, "esp," indicates that is the typical meaning in ordinary speech.

Which of the following pieces of evidence was invoked by the Court in setting out the argument that interpreting FACA's definition of "advisory committee" as broad enough to cover the ABA standing committee would be absurd?

It would be absurd to give FACA a meaning that would make apply its extensive reporting requirements when the President seeks the opinion on of the NAACP about prospective commissioners of Equal Employment Opportunity Commission or, in visiting with an American Legion Post, asks its leaders their opinion about an aspect of military policy.

In Circuit City v. Adams, Circuit City argued that Adams was bound - by an arbitra!on agreement and by the FAA - to arbitrate an employment discrimina!on claim (rather than take it to court). What Jus!ce Kennedy say about the excep!on in §1 of the FAA - exemp!ng from required arbitra!on "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce"? Why did he reach that conclusion?

Jus!ce Kennedy said that the excep!ons listed in §1 of the FAA did not cover Adams's contract with Circuit City because - although the phrase "other class of workers engaged in foreign or interstate commerce" should be read narrowly to include only employment contracts of those involved in transporta!on, both to align the general phrase with the specific items preceding it and to avoid interpre!ng so broadly that it would make the lis!ng of the specific items superfluous.

Which of the following best describes the disagreement between the 9th Circuit majority and dissenting Silver v. Sony Pictures - where the 9th Circuit found that Silver couldn't sue Sony Pictures for copyright infringement (for allegedly copying the movie script she wrote for "The Other Woman")?

The majority found that someone who is not the "legal and beneficial owner" of an exclusive right copyright does not have standing to sue because the statute states who may sue, and doesn't include such a litigant as having a right to sue. The dissent said that canon of interpretation (expressio unius) shouldn't apply because it is at odds with evidence of Congress's intent in enacting the 1976 Copyright Act.

Which of the following best describes the Canons of Avoiding Cons!tu!onal Problems and other substan!ve policy canons?

They are canons that push in favor of a par!cular policy outcome (like avoiding unjust penal!es or penal!es without no!ce, or interfering with state powers) -- generally do so independently of the statute's specific purposes, unless there is some indica!on Congress's intent or the text of the law either demands otherwise or, in the case of canon as !e- breakers, leave no ambiguity to resolve (but courts might take them as ways of reconstruc!ng Congress's purposes in a way that avoids a"ribu!ng unreasonable purposes to it, such as enac!ng uncons!tu!onal statutes).

Which of the following states the formulation of the canon of avoiding absurd consequences that Chief Justice Marshall used Sturges v. Crowninshield (in 1819)?

if the plain meaning is to be disregarded . . . because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would without hesitation unite in rejecting the application.

Which of the following is an example (discussed in your casebook) of how legislative **inaction** may be used by courts -- as legislative history -- to favor one interpretation of a statute over another possible interpretation?

A federal court and the EPA both interpret a certain federal environmental statute to empower the EPA to regulate the amount of a certain chemical in the environment. Although urged by industry groups to amend the statute to forbid the EPA from engaging in such regulation in the future, Congress does nothing to amend the statute in the five years a#er these court and EPA interpretations. So judges assume, in a later case, that Congress acquiesced in that interpretation of the statute previously given by the EPA and the federal court.

What does the casebook mean by the "corpus linguistics" method of determining ordinary meaning sometimes used by judges and legal scholars?

A method of searching for examples of how a word has been used by writers and speakers of English - often with the aid of search engines or other computer tools.

D., who works for a weapons-development firm, stores an electronic document with sensitive data on D's home computer, where it is at more risk of being accessed and stolen than it is in the firm's secure facilities. There is a statutory provision in the U.S. code that prohibits D. from leaving an electronic document with this kind of data on a home computer unless the file is "encrypted." D. argues that the file was "encrypted" because - before bringing a copy to his home computer - he used a computer program to substitute the letters in each word of the document with different letters, making the words appear nonsensical (for example, the word "airplane" in the original document would become "zgolgugw" in the copied document D. brings home). And "encrypted," says D, is defined by most dictionary definition as "translated with a code to conceal its meaning." On which of the following bases might a textualist judge find that, even if that is the ordinary definition of "encrypted," that is not the definition courts should apply to understand what "encyrpted" means in this statutory provision?

A textualist judge might find that "encryption" has a specialized rather than ordinary meaning in the statute - and refers not simply to any method by which words in such a document might be translated into a kind of code, but rather, for example, to use of specific technologies to make the document entirely unreadable without a specific kind of "key" that only an authorized user would likely possess.

Which of the following reasons --considered by our casebook's authors -- have been considered a reason that Committee Reports are a **good** source for understanding a statute's meaning.

Because Committee Reports are written by the group of representatives or Senators most deeply involved in, and knowledgeable about the law, since they are the ones who typically play the most extensive role in drafting it.

How does the Court apply the canon of avoiding serious cons!tu!onal problems in NLRB v. Catholic Bishop of Chicago?

Because extending NLRB jurisdic!on and rules to religiously-operated schools would raise ques!ons about whether the statute was cons!tu!onal under the First Amendment, the Court should interpret the statute not to do this -- unless Congress has clearly said otherwise.

One of the justifications for the rule of lenity is provided by Justice Holmes in McBoyle v. United States: "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." But the Court in Bass takes note of - and relies on - another justification for the rule of lenity. Which of the following describes that justification?

Because of the serious consequences of imposing criminal penal!es, and the fact that they represent the moral condemnation of the community, it is important that they come from legislators - not courts - so courts should not impose a penalty that is not clearly supported by the language of the law.

A statute requires Internet companies to disseminate to consumers, and staunchly enforce, privacy policies to protect the information they collect by e-mail and over the Web (in sections 1 and 2 of the statute). An angry consumer wants to sue a company for failing to provide and enforce a privacy policy collected by a SmartPhone application. SmartPhone applications are discussed in Section 3, which says nothing about privacy policies. Which of the following is an argument in the company's favor that makes use of a textual canon covered in the reading?

Because section 3 does not mention a privacy policy requirement for SmartPhones, whereas sections 1 and 2 do impose such a requirement on e-mail and Web sites, the court can infer that when Congress omitted mention of a privacy requirement in one section and included it in another, the privacy requirement does not apply in the section it was omitted (in this case, on SmartPhones)

A statute imposes a tax on certain uses of "automobiles" and "boats." It does not indicate that it is imposing a tax on any other vehicles. An individual is taxed for his use of a helicopter. Which of the following possible arguments is the best example of how that individual might use the the canon of expressio unius to to argue their use of a helicopter is not covered by this tax statute?

Because the statute specifically names two forms of transportation subject to the tax - "boats" and "automobiles" - and omits mention that it applies to any kind of vehicle, a court should presume that it does not apply to helicopters or any other kind of vehicle not named in the statute.

In Blanchard v. Bergeron, which of the following explains why the Court was willing to rely on the 12-factor test from the 5th Circuit case of Johnson v. Georgia Highway Express but not on Johnson's language suggesting that the contingent fee agreed to between client and a lawyer set a maximum for the award of a reasonable attorney's fee under 42 USC §1988?

Because the while relying on the 12-factor test was in Johnson and Johnson was cited in the legislative history, the Senate cited three district court cases that applied the test but in a way that treated the contingent fee arrangement only as a factor, not as a maximum.

The casebook authors suggest that applying ejusdem generis to a list of specific items followed by a broad general category does not always produce a clear result. To illustrate this point, they ask if the statute in People v. Smith - would have classified Nunchaku s!cks as a "dangerous weapon" under Sec!on 227 which makes it illegal to carry - and conceal - a "dagger, dirk, s!le"o, or other dangerous weapon." Which of the following reasons do they give that classifying Nunchaku s!cks as a dangerous weapons may not be at odds with applying ejusdem generis?

Because when applying ejusdem generis, courts are instructed to iden!fy the common strand that links specific items and then narrow the broad category to that as well - and while the Michigan Supreme Court treated that common strand as being a kind of "stabbing weapon" (which would exclude Nunchaku s!cks), it is possible to instead interpret as weapons used in hand-to-hand combat, which would include them.

To which of the following kinds sources of legisla!ve history do judges generally give the most weight when interpre!ng statutes (if they are open to relying on legisla!ve history)?

Committee reports

A statute makes it a crime - and imposes heavier penal!es than those normally imposed on hackers - on any person who used the internet to gain unauthorized access to any hospital-located "dialysis machine, cardiac monitor, ven!lator or other machine used by hospital medical staff" Defendant has been prosecuted under this statute for hacking into the iPhone of a surgeon who works at the hospital. The prosecu!on claims that this surgeon's iPhone is a "machine used by hospital medical staff." Which of the following arguments by the defendant is the best example of one that would involve use of ejusdem generis.

Defendant argues that the broad phrase "other machine used by hospital medical staff" should be interpreted as limited to the types of items that precede that term on the list, which are all devices specifically used for medical purposes, not general purpose device like iPhones, that are o$en used for personal purposes.

In her dissent in Yates - the case where the defendant was convicted under 18 U.S.C. §1519 (Sec!on 1519)- for trying to hide the fact that he had violated the law by catching undersized red grouper fish - Jus!ce Kagan cited evidence that she said made it clear that the statute defined "tangible object" broadly - and that ejusdem generis should not be used to narrow it. Which of the following types of evidence did she point to as suppor!ng her broad reading in making that point?

Evidence that the phrase "tangible object" appears in Sec!on 1519 as part of a three-noun phrase (including also "records" and "documents") common to evidence-tampering laws and always understood to embrace things of all kinds.

Why does Jus!ce Thomas argue - in dissent - that it is inappropriate for the Court to apply noscitur a sociis (in the way it does) to define "prospectus" in the Securi!es Act of 1933?

He says applying noscitur a sociis is inappropriate here because that canon, like other textual canons, only applies in cases of ambiguity, and § 2(10), which gives defini!on of "prospectus" clearly broad enough to encompass contracts for sale of stock, is not ambiguous.

In Bostock v. Clayton County, Georgia, which of the following rules does Justice Gorsuch - in his opinion for the Court - say is embodied in the text of the prohibition - in Title VII of the Civil Rights Act - on employment "discrimination" "because of" of an individual's "sex"?

He says it means that there is a Title VII prohibition when the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee - or in taking other kinds of employment action against that employee. As a consequence, he writes, an employer DOES discriminate against an employee when the employer, for example, refuses to hire or fire that employee based on their sexual orientation - because they could not take account of their sexual orientation without relying in part on the individual's sex.

The casebook contrasts the "classical" version of the canon of avoiding cons!tu!onal problems with a "modern" version set forth by Jus!ce Brandeisin his concurring opinion in Ashwander v. TVA.

If a court concludes that a par!cular interpreta!on of a statute would make the statute uncons!tu!onal, then it should adopt another plausible interpreta!on of the statute is one is available.

The casebook contrasts the "classical" version of the canon of avoiding cons!tu!onal problems with a "modern" version set forth by Jus!ce Brandeisin his concurring opinion in Ashwander v. TVA. Which of the following describes the "modern avoidance canon"?

If an interpreta!on of a statute would raise serious doubts about its cons!tu!onality, courts should adopt an alterna!ve plausible interpreta!on one is available.

How does the Court apply the Canon against assuming that Congress would preempt the historical powers of states in Gregory v. Ashcroft?

It says that assuming that the Americans with Disabili!es Act (ADEA) protected state judges against a mandatory re!rement age would intrude upon the historical powers of states So the Court should avoid that interpreta!on of the ADEA -- and assume that the ADEA does not apply here -- unless Congress has made a clear statement to the contrary.

What is the significance of the analogy which judges sometimes make in analyzing legislative history of an Act to Sherlock Holmes's phrase - from the story the Adventure of Silver Blaze- that "the dog didn't bark"?

It shows that where you would expect a certain interpretation of a statute to elicit objections or other discussion, and there was none (legislators didn't "bark"), then the absence of such objection or discussion indicates legislators were *not* interpreting the statute that way.

In United States v. Marshall, the Court had to interpret a statutory provision (21 U.S.C. § 841(b)(1)(B)) that imposed a mandatory minimum sentence on anyone who distributed more than one gram of "a mixture or substance containing a detectable amount" of LSD. The issue was whether, in determining the weight of "mixture or substance containing a detectable amount" of LSD, a court should include weight of the blotter paper serving as the carrier medium for the LSD, or should use only the weight of the pure drug (i.e. pure LSD without the carrier medium). The 7th Circuit majority opinion pointed out that with respect to another drug, PCP, Congress had expressly distinguished between weights based on a "mixture or substance containing a detectable amount of" PCP, and weights based only the pure form of PCP. How does this statutory language about mandatory minimum sentences for PCP distribution help the Court figure out how to interpret the state's different mandatory minimum sentence provisions on distributing "a mixture or substance" of LSD?

It does so because it uses statutory structure - and particularly the whole act rule canons of meaningful variation and of consistent usage - to show that "mixture or substance" (in the PCP section) does not refer to the pure weight of the drug, since Congress used different language for the latter, and courts should assume "mixture or substance" had the same meaning in the LSD section as it did in the PCP section.

A statute imposes special penal"es for all online "harassment, sabotage, and the# of informa"on that is carried out through use of a false iden"ty." The government seeks to impose this special penalty on someone who has engaged in online harassment. The defendant objects, arguing that he did not use a false iden"ty when engaging in the alleged harassment and thus, is not covered by the statutory provision for special penal"es. If you apply the last antecedent rule to the relevant statutory language, who does this favor (the government or the defendant) and why?

It favors the government because the modifier at the end of the relevant language ("that is carried out through use of a false iden!ty") should be presumed to apply only to the listed act that immediately precedes it ("the$ of informa!on").

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Court had to interpret a provision of the Endangered Species Act (ESA) that made it illegal to "take" a member of an Endangered Species - and then defined "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19)." It had to decide on the validity of the Department of Interior's interpretation of this part of the ESA, which found that changing the habitat of an endangered species in a way that actually leads to the death or injury of members of the species would amount to "taking" members of that species in violation of the ESA. Which of the following best summarizes the Court's majority opinion in this case?

It found that habitat modification that causes harm to members of an endangered species - can count as "taking" members of the species under the ESA, so it was reasonable for the Department of Interior to conclude it would. The Court reached this conclusion because the ordinary meaning of "harm" can include indirect as well as direct harm, and narrowing it to include only direct harm would make it do nothing more than duplicate the meaning of the other listed terms in the definition of "take." Moreover, protecting habitat is consistent with the ESA's purpose of providing robust protection of endangered species, and also with the legislative history.

In King v. Burwell, why did the Supreme Court conclude that tax credits were available not only in exchanges established by the state (as the law's text indicated), but also in exchanges established by the federal government?

It relied on the conclusion, from the Act's history, that it was meant to adopt three reforms that can only work together - the guaranteed issue and community ratings, the individual mandate requiring purchase of health, and the tax credits that make health insurance affordable - and that it would be inconsistent with the Act's fundamental purpose to assume it wanted to omit the last of these in exchanges set up by the federal. government. Also, it uses various textual canons and a variation of the "Congress doesn't hide elephants in mouseholes" canon to conclude that the interpretation including federal exchanges was the better one.

In United States v. Locke, the Court had to decide how to interpret language in Section 314 of the Federal Land Policy and Management Act (FLPMA) requiring that filings to hold mining claims must be made "prior to December 31"? How did Justice Marshall disagree with Justice Stevens about how to interpret this language?

Justice Marshall said that, when it comes to interpreting deadlines, the Court should strongly presume that it should take the literal meaning of the language setting the deadline - which in this case, set it as December 30th. Justice Stevens said that in light of the irrationality of doing so, and the fact that so many would predictably assume the language "prior to Dec. 31st" meant prior to the end of the last day of the year, it made sense to read the FLPMA as setting a deadline of Dec. 31

Justice O'Connor writes - for the majority in Smith v. US - that "[s]urely petitioner's use of his MAC-10 can be described as 'use' within the everyday meaning of the term." And to support this point, she lists dictionary definitions from Webster's Dictionary and Black's Law Dictionary. Which of the following best describes Justice Scalia's response, in dissent, to this point?

Justice Scalia argues that while Justice O'Connor's definition of "use" are correct - especially for a word with such a broad meaning, it is essential to understand the word in context - in this case, what it means in this statute to "use" a "firearm" - keeping in mind that to use an instrumentality ordinarily means to use it for its intended purpose.

What does Justice Stevens say - in his dissent in WVUH v. Casey - has happened "when the Court has put on its thick grammarian's spectacles, and ignored the available evidence of congressional purpose"? How do his dissenting opinion and Justice Scalia's majority opinion differ about the consequence of this?

Justice Stevens says that Congress has often then amended the law that the Court interpreted (and misinterpreted, in Stevens's view) so that it serves the purpose Congress intended it to serve and that the Court ignored.

Which of the following methods of statutory interpretation will textualists generally refuse to use (in most circumstances) in interpreting a statute - but purposivists are willing use as a source of evidence about what Congress (or another legislature) intended a statute to achieve?

Legislative history

A court has to interpret a city ordinance that says that they shall be "no vehicles in the park" referring to the one park that is within the city's limits. It has to decide if the ordinance prohibits riding a bicycle in the park. Imagine the court concludes that riding bicycles is permissible under this ordinance and its reason for this conclusion is that, based on the evidence it has reviewed, the city council enacted the "no vehicles in the park ordinance" to address concerns about noise and pollution generated by engines - and bicycles, lacking engines, don't generate such noise and pollution. What approach to statutory interpretation does this exemplify?

Purposivism - because the court is reasoning that even if the city council never considered whether the ordinance's language covers bicycles, the general purposes for which it enacted the ordinance (to prevent noise and pollution) don't require, and aren't advanced by, prohibiting bicycles.

The casebook asks if use of substan!ve policy canons to interpret a statute is consistent with a textualist approach to statutory interpreta!on. Which of the following arguments does it consider for why use of substan!ve policy canons is consistent with textualism?

Substan!ve policy canons generally embody rules that are such a longstanding and established part of our legal system that it is fair for courts to assume they are part of background understandings Congress should be assumed to have as it legisla!ves.

A statute forbids dissemination of obscenity through "phone communications, e-mail or Web exchanges over the Internet, or other electronic means." Prosecutors claim that defendant has violated the statute by using drones to deliver small "flash drives" containing obscenity to others in his town and nearby towns. They point out that both drones and flash drives use electronic technology. Which of the following is a use of ejusdem generis that defendant can make to dispute prosecutors' claim?

Since the statute lists "other electronic means" after the more specific references to "phone communications" and "Web exchanges over the Internet," courts should interpret "electronic means" to refer to communications that, like phone calls or e-mail, occur over wirelines or some other medium for carrying electronic signals -- and not to use of electronic technology to power, or otherwise enable, physical transmission of messages.

In Church of Holy Trinity v. United States, the Supreme Court had to decide if a statute forbidding importation of foreign labor covered the action Church of the Holy Trinity took in arranging for Reverend Warren Walpole to come from England to work for the church. What did the court find with respect to the textual meaning of the statute's use of the words "labor or service of any kind" to describe what was prohibited?

That these words were broad enough to include all kinds of activity done in employment and included the activity that a rector engaged when employed to lead a church. But courts determining meaning of the statute are not confined solely by the words' meaning but should also examine the statute's intent and purpose.

In Griffin v. Oceanic Contractors, how did the Supreme Court rule with respect to the plaintiff's claim for an award of more than $300,000 for a few weeks during which he couldn't work because of workplace injury for which the employer was responsible?

The Court found that - while the result may seem unusually harsh - both the text and statutory purpose supported requiring Oceanic Contractors pay Griffin double wages for each day after the injury they refused to pay him - which, as Griffin claimed, amounted to over $300,000.

In Riggs v. Palmer, the NY Court of Appeals had to decide whether to understand the NY statutes regarding the making and enforcing of will as allowing Elmer Palmer to inherit a large portion of his grandfather's estate under his grandfather's will, even though Palmer had "willfully murdered [his grandfather] by poisoning him." Which of the following summarizes both what the NY Court of Appeals decided and why?

The NY Court of Appeals found that, although New York's laws contained no express exception preventing a murdered from inheriting from his victim, it is unreasonable for court to assume that the legislature intended that to be possible - given the unreasonableness of allowing that to occur - and that laws should in any case be interpreted to accord with the fundamental common law maxim that no one should profit from their own wrong. it thus ruled against Elmer Palmer.

The casebook authors say that the presump!on of trea!ng the same term in different parts of an act as having the same meaning is part of a larger interpre!ve principle. What do say that larger principle is called?

The Whole Act Rule

In Public Citizen v. US Department of Justice, the Court had to decide if the ABA's Standing Committee on the Federal Judiciary was an "advisory committee" under the Federal Advisory Committee Act (FACA) and thus subject to the obligations imposed on such a committee.

The majority found it would be absurd to understand the Act's definition of "advisory committee" as applying to the ABA committee here, while Justice Kennedy said that was wrong - and based on a misunderstanding of the canon of avoiding absurd consequences should apply.

As we previously saw, in United States v. Marshall, the Court had to interpret a statutory provision (21 U.S.C. § 841(b)(1)(B)) that imposed a mandatory minimum sentence on anyone who distributed more than one gram of "a mixture or substance containing a detectable amount" of LSD. The issue was whether, in determining the weight of "mixture or substance containing a detectable amount" of LSD, a court should include weight of the blo"er paper serving as the carrier medium for the LSD, or should use only the weight of the pure drug (i.e. pure LSD without the carrier medium). The 7th Circuit majority opinion pointed out that with respect to another drug, PCP, Congress had expressly dis!nguished between weights based on a "mixture or substance containing a detectable amount of" PCP, and weights based only the pure form of PCP. Which of the following textual canons does this provide an example of?

The canon of meaningful varia!on - that is, the canon that different language in different parts of a statute suggest Congress means different things. Here, the statute referred specifically to punishments for a pure forms of PCP in the PCP sec!on. Because it did not do so in the LSD sec!on, that means mandatory minimums in that LSD sec!on were not to be based on the pure form of LSD.

In US v. Villanueva-Sotelo, the defendant argued he could not be guilty of violating 18 U.S.C. § 1028A (a)(1) - criminalizing "aggravated identity theft" - because the government did not prove that thedefendant "knew the 'means of identification' he 'transfer[red], possesse[d], or use[d]' actually belonged to 'another person.'" In disagreeing with the defendant's argument, the dissent in this case (by Justice Henderson) quoted the language of a different statute - 18 U.S.C. § 1546(a), which provides that "[w]hoever knowingly ... uses ... [an] alien registration receipt card ... knowing it to be forged ... [s]hall be fined under this title or imprisoned." Id. Why did the dissent say that that other statute - 18 U.S.C. § 1546(a) - helped show that the statute at issue here, 18 U.S.C. § 1028A (a)(1), did not impose a mens rea requirement that meant government would have to show that defendant "knew the 'means of identification' he 'transfer[red], possesse[d], or use[d]' actually belonged to 'another person'"?

The dissent was arguing that 18 U.S.C. § 1546(a) should be read "in pari material" with 18 U.S.C. § 1028A (a)(1) - such that courts should assume that similarities and differences in language are meant to reflect similarities and differences in how the statute operates. More specifically, 18 U.S.C. § 1546(a) showed that when Congress wishes to impose a mens rea requirement on some additional feature of an act that already has to be done knowingly (e.g., in § 1546(a), knowledge that a card is "forged") it says so expressly - and so its failure to do so regarding the fact that a means of identification (in § 1028A (a)(1) belonged to another person, shows a defendant did not have to know that to be guilty.

Which of the following doctrines does Justice Scalia cite in his dissent in Moskal to argue in favor of deciding in favor of Moskal's interpretation of "falsely made"

The doctrine that when a statute employs a term with a specialized legal meaning relevant to the matter at hand, that meaning governs.

What language in the ADEA does the Court say makes it plausible to interpret it as exemp!ng state judges from the protec!ons against mandatory re!rement at age 70 even though the ADEA was extended to "include States as employers"?

The language in the Act stating that such an employee of the state protected by the ADEA shall "not include . . . an appointee at the policymaking level"

In TVA v. Hill, the Supreme Court found that the Endangered Species Act (ESA) prohibited the federal government from completing the Tellico dam in Tennessee. In its decision, the Court rejected the following argument by the Tennessee Valley Authority (TVA), the government agency responsible for constructing the dam: Even if the ESA did make completion of the Tellico dam impermissible (because of the damage the completion of the dam would cause to the habitat of the Snail Darter fish, which was an endangered species), still - the TVA claimed - Congress later changed the law. By continuing to fund the TVA after enactment of the ESA, it manifested an intent to let work on the dam continue anyway. Which of the following statutory interpretation canons did the Court rely upon to the reject this argument by the TVA?

The rule against implied repeals.

Which of the following best summarizes the majority opinion's posi!on on when the rule of lenity is appropriate - in Smith v. United States (the case about whether trading a firearm cons!tute "use of a firearm" under 18 U.S.C. §924(c))?

The rule of lenity function as a tie-breaker: It is to be used only if use of the other tools of statutory interpretation (apart from substantive policy canons) leave doubts about the statute's meaning.

Which of the following aspects of the Endangered Species Act (ESA) did the majority in TVA v. Hill rely upon to find that ESA forbade the TVA from completing and beginning operation of the Tellico Dam?

The text of the ESA - as well as the purpose as evident from the text and legislative history.

When textualist judges try to understand the meaning of a word or phrase in the statute, they are most likely to look at dictionaries or other guides to meaning from what time period?

The time at which the statute they are interpreting was enacted (or at dictionaries or sources as close as possible to the time of enactment).

Which of the following best summarizes the argument of Justice Ginsberg's dissenting opinion in Taniguchi v. Kan Pacific Saipan about the meaning of "interpreter" in 28 U.S.C. § 1920(6) and whether judges should read it to include translation of written documents?

The word "interpreter," while perhaps typically referring to oral translation, is broad enough to include written translation, and should thus be defined this way by judges to make the statute accord with the practices of courts, and the most sensible reading of the statute's purpose in covering the costs of translation, which is so that the judge and other trial participants may understand evidence they other could not.

According to your casebook, which of the following is something the three approaches described in the book (intentionalism, purposivism, and textualism) all share in common?

They all are grounded in the principle of legislative supremacy - that is, the idea that judges interpreting statutes must act as the faithful agents of the legislature.

What use of legislative history did Judge Easterbrook say in In re Sinclair would be both permissible - and possibly valuable?

Using legislative history to find out whether words are being used a technical rather than an ordinary sense

Which of the following questions did the Court in Corning Glass Works v. Brennan draw upon legislative history to answer?

When Congress mandated equal pay without regard to gender for employees who are in similar working conditions, is "working conditions" to be given an ordinary or technical meaning, and what meaning does it have?

Apart from setting aside ordinary meaning in favor of a specialized meaning (that a term has for a certain professional or other specific community), in which of the following circumstances below might a judge - even a textualist judge - to give a word or phrase its ordinary meaning?

When the statutory text gives the word or phrase a definition that is different from its ordinary meaning.

Are textualists such as Justice Scalia willing to rely on other statutes in other parts of the US code - and not only the language of the statutory provision they are interpreting - to try to understand the meaning of an ambiguous word or phrase, such as "reasonable attorney's fees" in West Virginia University Hospitals v. Casey? Why or why not?

Yes. Textualists will often focus on dictionary definitions and other evidence for what a word or phrase - such as "reasonable attorney's fees" in Casey - means to ordinary readers. But they are also willing to look at language in other parts of that or other statutes - including other uses of the same or similar phrases in other parts of the U.S. Code - to understand the meaning of the word or phrase that is the focus of the case.

Which of the following is the best example of the Court's use of the canon of noscitur a sociis in Gustafson v. Alloyd, a case where the par!es disagreed about whether a contract for the sale of stock was a "prospectus" for purposes of the Securi!es Act of 1933?

§ 2(10) of the Securi!es Act defines a prospectus as "any prospectus, no!ce, circular, adver!sement, le"er,or communica!on, wri"en or by radio or television, which offers any security for sale or confirms the sale of any security." Because the items on the list refer to documents of wide dissemina!on, "wri"en communica!on" should be understood only to include communica!ons to the public, not contracts exchanged between, and agreed upon by, only a small set of par!es.