Sample Lesson, Problem No. 2

Question No. 3. Under the so-called "mischief rule" approach to statutory construction (discussed supra), how does a court determine precisely what "mischief" any given statute was intended to remedy?

E-mail your response as "Sample Lesson Question No. 3" to Professor Martin at esaprof@gmail.com.

Question No. 4 has two sub-parts, (A) and (B), both of which pertain to the following prohibition found in a typical state game statute:

Question No. 4B. Which of the following generally recognized "canons" of statutory construction would be MOST appropriate to aid the court in determining the proper meaning of this statutory phrase?

NOTE: In the preceding Questions (i.e., Questions 4A and 4B, supra), it might be argued that there was simply no need whatsoever to apply any of these rules of statutory construction, since the "plain meaning" of the sentence in question was quite clear. Any other interpretation would have produced a totally absurd result which Congress most surely did not intend. That is, of course, precisely what the "plain meaning" approach to statutory construction attempts to do, at least with respect to any references to outside sources such as legislative history as a means of determining the intent of the legislature (see discussion supra). But sometimes, even though the words in a statute seem clear enough, their meaning is far from "plain," as the next Question illustrates.

In section 3(19) of the Endangered Species Act of 1973 Congress has specifically defined the word "take." This word then becomes a key term under the Act which is used to describe specific activities that are prohibited relative to "endangered" and "threatened" species. Specifically, this sub-section states that:

Consider the meaning of the phrase used at the very end of this statutory list of prohibited acts: "or to attempt to engage in any such conduct." Does "such conduct" refer only to the prohibited act of "collecting," or does it refer to any or all of the other prohibited acts in the list that immediately precedes this phrase?

Once again, the statutory drafting rules pertaining to common word usage (see Part I, supra) provide some help in answering this statutory construction question. Since the phrase itself is preceded by a comma, it is presumed that the qualifying phrase was intended to refer to each and every one of those specific acts listed in the preceding part of the same sentence. Thus,under this routine drafting convention, by including a comma before the last phrase in this statutory list, not only are each of these specific listed acts themselves included within the definition of a prohibited "taking" under the Act, but even attempts to engage in any of these acts are also prohibited as well. Moreover, such an interpretation certainly seems logical and quite consistent with the broad purpose of the Act itself.

However, sometimes even when the meaning of a particular word usage rule appears to be quite clear we are still unable to rely solely upon the mere application of such rules alone in interpreting the meaning of statutory language. Consider the effect of applying this same statutory drafting (i.e., word usage) rule to another definition, also included within this very same Section 3 of the Endangered Species Act of 1973. Specifically, sub-section (14) provides that:

Application of the same word usage rule (relating tocommas) as in the preceding discussion now produces a somewhat anomalous result: since there is no comma preceding the word "roots" in the main clause of this sentence, the phrase "and other parts thereof" presumably refers only to the word "roots" itself and not to the other word (i.e., "seeds") included in the same list of specific plant parts contained within the statutory definition of the word "plant". Applied literally, this sentence (without any comma to introduce the last phrase) would define a "plant" to incude merely seeds, roots, and other parts of only the roots (e.g., root hairs, rhizomes, etc.). This definition, however, would not even include stems and leaves, although quite obviously they too are important plant parts. Such an interpretation certainly does not seem very consistent with our own common sense knowledge of what a "plant" is, but surely Congress knew about these basic rules of comma usage when it drafted this definition. After all, sub-section (19) contains this very same comma usage rule [discussed supra].

Therefore, in construing these statutory definitions, how can any court know which interpretation to apply, given the drafter's own inconsistent application of this same word usage rule in two sub-sections of the very same statute? Word usage rules alone are really of no help in this situation.

To answer this question we will have to resort to the application of the "rules" or "canons" of statutory construction. But now, a new problem arises. Which rule(s) should we apply?

Problem No. 2.

The term "extinction" (or "extinct') is referred to no fewer than eight different times within the full text of the Endangered Species Act of 1973. However, as discussed previously, this term itself is never actually defined anywere within the Act.

Your assignment is to write a proposed statutory definition for the term "extinction," to be included as new Section 6.1 of the Endangered Species Act. To maintain consistency with all of the other defined terms in the E.S.A., your stautory definition should begin as follows:

(6.1) The term "extinction" means ....

E-mail your response as "Sample Lesson Problem No. 2" to Professor Martin at esaprof@gmail.com.