Statutory interpretation and administrative law - Law & Economics [PDF]

Statutory interpretation and administrative law Professor Neomi Rao Attorney General Education Program Law and Economics Center September 11, 2014

Methods of interpretation • • • • •

Intentionalism Purposivism Pragmatism Dynamic statutory interpretation Textualism

Canons of construction • • • • •

Focus on linguistic canons Background rule for understanding language Important for text-based approaches May sometimes conflict Justifications for linguistic canons?

Commonly used canons • Noscitur a sociis – Words are known by their associates – Limited and qualified by special words

• Expressio unius est exclusio alterius – Expression of one thing indicates exclusion of the other – Legislature rejected similar things

• Assumptions behind canons?

Structural canons • General idea: read the statute as a whole, provides context for specific provisions • Whole act rule • Rule to avoid redundancy • Consistent usage and meaningful variation • Rule against interpreting a provision in derogation of another

Babbitt v. Sweet Home (1995) Endangered Species Act, Section 9(a)(1) “…[W]ith respect to any endangered species of fish or wildlife …it is unlawful for any person subject to the jurisdiction of the United States to— take any such species within the United States or the territorial sea of the United States” “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

Interior department regulation • Defines “harm” in the definition of “take” • Regulation says “harm” includes significant habitat modification that kills or injures wildlife • Is the regulation within the statutory authority of the agency?

FDA v. Brown & Williamson • FDA has authority to regulate “drugs” and “devices” • “drug” is defined to include – “articles … intended to affect the structure or any function of the body”

• “device” is defined to include – any instrument or implement “intended to affect the structure or any function of the body of man or other animals”

FDA regulation • Asserts jurisdiction to regulate tobacco products • Nicotine is a “drug” and cigarettes are a “device” that deliver nicotine to the body • Reverses longstanding FDA position • Does the FDA have jurisdiction to regulate tobacco products?

Context for interpretation • Plain meaning of statute • Meaning at time statute enacted – 1938: no intent to include tobacco – Limited knowledge of harmful effects

• Political context – 6 separate statutes regulating tobacco since 1965 – Powerful special interest group