COMMON LAW INTERPRETATION

common law state

that its legal system is under the common law tradition.

The primary sources of law in common law (highest authority to

least authority)

Constitution

Statutes

Binding case law.

Secondary sources of common law 

non binding case law

doctrine

custom and gap fillers.

Case law becomes binding in the common law through

the doctrine of vertical and horizontal stare decisis.

Vertical stare decisis 

binds a lower court in the same hierarchy, by previous decisions of the higher court.

Horizontal stare decisis

a court is bound by its own decision, and thus previous decisions bind all future decisions in the same court.

dicta 

persuasive - non binding 

Binding precedent applies to the facts of our new case in four different methods of reasoning...

1. Deductive Legal Reasoning

2. Inductive Reasoning

3. Analogical Reasoning

4. Dialectical Reasoning

deductive reasoning

also known as rule based reasoning, is used when you have a case on point and apply the precedent or rule directly to the facts.

Make sure to state whether or not there is horizontal or vertical stare decisis and the precedent is binding or non binding
If precedent is nonbinding, then state that the precedent is only persuasive

Analogical Reasoning

involves looking at similarities between the facts of a case and the current case, and stretching the rule of the precedent to fit other cases.

Make sure to state whether or not there is horizontal or vertical stare decisis and the precedent is binding or non binding
If precedent is nonbinding, then state that the precedent is only persuasive

Technique of Distinction

Analogical reasoning can also involve using the method of distinction, which allows the judge to distinguish the case from prior precedent.

Inductive Reasoning

Inductive reasoning applies where there is not already a rule that is available to the judge, but the judge is able to distill a pertinent rule of principle from a string of earlier decisions.

Dialectical Reasoning

Dialectical reasoning is only used for unique situations, where there are either new issues or the old law no longer is good. This is used by judges and lawyers when there is not an existing rule, the rule is unsound and should be overruled, or situations where two or more competing rules of major premises are available for the determination of the issue. (Most likely not going to apply here)

statutory interpretation

Statutes are exceptions to the common law

There are two methods of statutory interpretation

textualism and purposivism

Textualism

Textualism is where we try to determine the legislative intent of the statute based on the text of the statute

textualism 

First, we start with the literal rule, and then if there are ambiguities in the law we turn to the golden rule.

Literal Rule

The literal rule states that if the text is clear, then apply it and go no further

However, because there are ambiguities in the law

we must go to the golden rule to determine the legislative intent.

Golden Rule

The golden rule states that when the plain meaning of the statute leads to absurdity

or inconsistency, then it can be presumed that the legislature could not have intended the result.

Thus, we should disregard the statute’s plain meaning in favor of another interpretation that can

be derived from the text.

If there are still ambiguities in the law

then we resolve them with “intrinsic aids” or canons of

construction

Intrinsic Aids

There are two different types of intrinsic aids.

The canons of construction are

linguistic canons of construction and substantive

Lingustic

Expressio unis est exclusio alterius, Noscitur a sociis, Ejusdem Generis

Expressio unis est exclusio alterius

linguistic canon of construction that applies to special statutes and exceptions

This canon of construction is that there should be a narrow application of exceptions and special statutes.

Noscitur a sociis

linguistic canon of construction which states that ambiguous terms are interpreted with reference to the statute as a whole.

Thus, associated words bear on one another’s meaning.

Ejusdem Generis

that states that catch all phrases at the end of a statute refer to other things of the same kind

This is similar to the Ejusdem generis method of reasoning in civil law

substantive

civil statutes in derogation are construed narrowly

Purposivism

determine the legislative intent based on the purpose of the statute.

For this method of interpretation we use both intrinsic and extrinsic aids to determine the purpose of the law.

This method of interpretation is very similar to the historical method of interpretation in the civil law tradition.

extrinsic

material that are outside of the text such as legislative history, and doctrine.