Leg Reg Canons of Construction

Plain Meaning Rule

• Ct should give effect to plain/ordinary meaning of a law at the time of enactment unless: 

  • A term is defined in the statute. If a term is defined in the statute, that definition is always the definition (except sometimes when it strays too far from ordinary meaning) 

  • Ask who the audience is? → determines whether technical or ordinary meaning should be used

  • Dictionaries - can be helpful, but aren’t always dispositive; might not reflect ordinary meaning (Nix); may be most useful when there is an old statute

  • Legal terms of art v. technical meaning - may be treated differently; may be less persuaded that ordinary meaning applies where a legal term of art exists (Scalia in Moskal)

Punctuation

• Often used to confirm a textual interp, but it will not overpower a more natural reading of a stat

Last Antecedent

• A limiting clause should be read to modify the noun or phrase that it immediately follows, unless there is a comma → then the modifying phrase applies to all of the antecedents

• Ex. “I would like the shoes in white, blue, or pink with yellow flowers” → which shoes do I want w/ yellow flowers? → only the pink shoes

• Ex. “I would like the shoes in white, blue, or pink, with yellow flowers” → which shoes do I want w/ yellow flowers → all of them

Grammar Rules

• The general grammar rule is the same as the general punctuation rule: (1) grammar matters, unless the ordinary meaning suggests that grammar should be ignored, and (2) courts presume that legislatures use grammar accurately and consistently.

• And/Or

  • Or - 1; and - all

  • May change if it looks like a scrivener’s error

• May/Shall

  • May - permissive; shall - required; Canon strongest when used in same statute

• Dictionary Act

  • It’s in the USC; Cts often disregard it

In Pari Materia (whole act/code)

• identifies stat material that judges may legitimately look at to discern meaning or fill gaps; works in tandem with other linguistic canons

Whole Act

• section of a leg act should not be interpreted in isolation; whole act relevant (even if codified in different sections); Compare ways terms are used in diff parts of the same statutes

Whole Code

• statutes should be interpreted harmoniously w/ other statutes concerning the same subject

Presumption of consistent usage

• presumes that when the leg uses the same word in diff parts of the same or related act, leg intended those words to have the same meaning (consistent usage). 

Presumption of meaningful variation

• If they use a diff word in another part of the same or related act → leg intended to change the meaning

  • Cousin: when the leg uses certain lang in one part of the statute and diff lang in another, ct assumes diff meaning were intended

  • Cousin 2: (in pari materia - on the same subject) presumption of consistent usage may apply when Congress addresses similar subject matter in different statute

Expressio Unius (EX)

• The mention of one thing is the exclusion of another; Not used often - usually a battle when Congress does/doesn’t use “only”

  • Simple Version: If a term is not included on a list, it was intentionally excluded

  • Hard Version: If a statute covers a topic but doesn’t provide the redress or something else the plaintiff wants, it is presumed that Congress intended to permit it

    • Ex. Bostock - sexual orientation not included in protected categories; ex. Also age & disability - addressed in separate statutes

Noscitur A Sociis (NS)

• A word’s meaning is limited by the surrounding words; Must identify the common characteristic; applied when deciding whether to give term broad or narrow meaning; designed to avoid gving a word a broad meaning unintended by the legislature

• Ex. “orange, green, and yellow” → can tell the fruit orange is not included in the list b/c it identifies colors, not fruit

Ejusdem Generis (EJ)

(“of the same type”): In a series ending with a general word, the general word should be limited by the preceding specific words

• When to apply: often before determining there is ambiguity/gap in the statute; When the ambiguous term in q is a residual catch-all category at the end (or occasionally the beginning) of a list of more specific enumerated items

• How to apply: Find a common characteristic shared by the enumerated list and then apply that characteristic to the general word

• Ex. apples, oranges, kiwi, and other similar products → “other produce” is limited by “apples, oranges, and kiwi”

Rule against surplus language

• We give meaning to all words in a list. Assumes that 1) every word has an independent meaning and 2) 2 diff words cannot have the same meaning

• an interpretation that renders a substantive provision of a statute entirely superfluous is something courts should avoid

Title & Headings Cannon

• Title and headings are permissible indicator of meaning

Ambiguity

more than one possible meaning

• Strict textualists: equally plausible meanings (high bar; solve most things by ordinary meaning → avoids turning to other tools to solve stat problem; should only use other tools beside ordinary meaning when you absolutely have to)

• Purposivits: reasonable minds can differ; something more than conceivable or possible; wider than “equally plausible” (lower bar; more room for leg intent); (usually wait till you get to ambiguity to get to leg history → may result in looser def of ambiguity)

• *no low bar → NO ONE says it’s enough to create ambiguity if there is another “conceivable” or “possible” meaning 

Lexical Ambiguity

• occurs when a word or phrase has multiple meanings; far more common than structural; often resolved by textual contexts; Everyday examples include: bay, pen, suit, dust, draw, run, hard, blue; easier to resolve than structural

Structural Ambiguity

• occurs when a phrase or a sentence cna be interpreted in more than one way due to an ambiguous structure; less common than lexical ambiguity; ex. “Tibetan history teacher” → could mean: [Tibetan history] teacher or Tibetan [history teacher]

Absurdity Doctrine

Cts should avoid interpretations that render a statute absurd; (applies uniquely to emergency situations); *few absurdity things after Green → NOT the answer; Absurdity moments often raise potential Constitutional Issue (when non-emergency);

Tests for Absurdity

• Scalia: absurdity as an interpretation that “cannot rationally or perhaps even constitutionally mean what it seems to mean” (Green)

• Kennedy: an interpretation that would lead to “patently absurd consequences”; “impossible that Congress could’ve intended the result and where the alleged absurdity is so clear as to be obvious to anyone”

• Brennan (not really absurdity - just purposivism): An interpretation that “would compel an odd result”, outlandish, or is disturbingly unlikely

Scrivener’s error

• subset of absurdity; for obvious drafting - typographical or clerical mistakes; RARE in modern day; if section “garbbled” → would apply, not just typos or clerical mistakes; NOT every example of Scrivener’s error is an example of absurdity

Constitutional Q Avoidance

If there are 2 reasonable and fair interpretations of the statute, adopt the interpretation that avoids unconstitutionality b/c we presume the leg intended statute to be Constitutional

Classic Avoidance Canon

• If there are 2 possible interpretation, one of which is clearly unconstitutional, the court MUST adopt the one that is not → b/c you assume that Congress didn’t intend to enact an unconstitutional law

Modern Avoidance Canon

Con issue need simply appear before ordinary meaning can be rejected → avoids Constitutional q’s too often

Weak avoidance - There should be a constitutional avoidance canon, but it should apply only when an interpretation that would avoid the Constitituional problem would be a reasonable and fair interpretation of the text even if there were no Constitutional issue

Strong avoidance (least likely to be embraced by cts today - Constitutional avoidance canon require cts to read general stat terms narrowly, avoiding applications that would raise serious constitutional problems unless there is some affirmative indication that Cognress considered the matter and decided it wanted to force the Constitutional issue

No avoidance - (might best describe the ct today) - Should have no avoidance canon at all. Adopt order-of-decision rule and reach the Constitutional issues only after exhausting everything else, but the desire to avoid a Constitutional problem shouldn’t influence how cts interpret statutes

Rule of Lenity

• ambiguity in a statute defining a crime or imposing a penalty (civil fines) should be resolved in the D’s favor; a substantive canon based on policy concerns; challenge is deciding when the ambiguity is large enough to invoke the rule; doesn’t apply to sentencing

Other kinds of substantive canons - *used only when you exhaust other tools on an ambiguous stat

• Avoid imposing tax liability

• Favor provision of some gov benefits

• Presumption against retroactivity