Review Questions for Statutory Interpretation and Regulatory Practice
April 4, 2016
Prof. Hester
1. Which judicial action best demonstrates the doctrine of scrivener’s error?
a. A court determines that Congress erroneously overlooked an
administrative interpretation of a statute when it reauthorized that
statute, and therefore Congress did not mean to adopt that interpretation
by reference.
b. A court rules that Congress used the wrong year in specifying a deadline
of “April 15, 2017” for tax filings in 2016.
c. A court holds that Congress did not intend to allow claims submitted on
Dec. 31, 2015 if the statute required submittals “prior to Dec. 31”.
d. B and C.
e. All of the above.
The correct answer is B.
2. True or False: while a court will generally give identical words and phrases in a
statute the same meaning, it can ignore this fundamental canon and define the
same word in the same statute differently if it has reason to believe that
Congress used the term in two different senses in that statute.
This statement is true.
3. If the Governor of Texas chooses not to sign a bill that has passed both chambers
of the Texas legislature with less than 15 days left in the current legislative
session, he (or she) has:
a. Allowed the bill to become law;
b. Subjected the bill to a pocket veto;
c. Automatically passed the bill for reconsideration by the next Legislature;
d. Automatically triggered a special session of the Legislature (if the
governor has designated the bill as emergency legislation during the
session).
e. None of the above.
The correct answer is A. In Texas, a bill becomes law if the Governor does not
sign it within 10 days during session, or within 20 days after session ends.
4.
In a fit of legislative frustration after several high-profile incidents of
corruption and bribery of federal officials by corporations, Congress passes a
statute that bars any corporation convicted of a federal or state criminal
bribery offense from obtaining a contract with the U.S. government. This
type of debarment can be a death knell for vulnerable corporations,
especially ones that already have a prior conviction(s). Which interpretative
canons would best apply to this statute?
a. The federalism clear statement rule.
b. The rule of lenity.
c. The presumption against preemption.
d. The presumption against retroactivity.
e. All of the above.
The correct answer is D. The rule of lenity does not apply because contract
debarment is not a criminal penalty, the debarment does not intrude into
any state sovereignty interests that would trigger the federalism clear
statement rule, and the question does not identify any state statute that the
new federal statute would preempt. By imposing additional retroactive
consequences for a wrongful act that occurred prior to passage of the statute,
this law clearly has a retroactive effect.
5. The United States wishes to extradite “El Chapo,” the leader of a vicious Mexican
drug cartel, to face criminal charges for felony possession of drugs with intent to
distribute them. While the United States admits that El Chapo manufactured and
distributed his drugs solely in Mexico, it alleges that other criminals obtained the
drugs from El Chapo and conveyed them into the United States for ultimate use.
As his defense counsel, which canons of construction would offer the strongest
arguments against U.S. prosecution?
a. _____The presumption against extraterritorial application ___________
b. _____The rule of lenity______________________________________________________
6. In Skilling v. United States, the U.S. Supreme Court relied on which of the
following statutory canons?
a. The federalism clear statement principle because the lower court’s
invocation of the “intangible rights” doctrine intruded into core functions
of state sovereignty over criminal law.
b. The Whole Code canon because Congress had defined “honest services”
differently in the Securities Exchange Act of 1934.
c. The constitutional avoidance canon because a narrower construction of
the mail and wire fraud statute would prevent the court from having to
find the statute unconstitutionally vague.
d. The rule of lenity because the statute contained sufficient ambiguity to be
interpreted against the United States in Skilling’s favor.
e. C and D.
f. A, C and D.
The correct answer is E.
ANSWERS TO FEB. 26 REVIEW QUESTIONS:
1.
2.
3.
D
E (the descriptions of Scalia’s and Stevens’ opinions are reversed, and the
Endangered Species Act contains no definition of “harm” – only “take”)
B (expressio unis is comparatively weak when a list contains a catch-all
phrase at the end; the last antecedent rule makes no sense here if you
want to limit the “enclosed space” term to exclude the health center,
which is admittedly on university grounds; and the surplusage argument
doesn’t explain why including health centers within “enclosed spaces” is
4.
5.
inherently so extraordinarily broad that it would swallow up the other
specifically listed spaces).
D
True