Cannons

Question 1

Starting Point for Analysis

Answer 1

Plain Meaning (Textualism): A statute is to be interpreted using the ordinary meaning of the language of the statute when the text is unambiguous.

Question 2

Tools for Finding Plain Meaning

Answer 2

Rules of grammar, canons of construction, dictionary definitions, definitions given in statute itself

Question 3

Counter-argument to Plain Meaning

Answer 3

Because of the nature of legislation (committees, drafters, role of lobbyists/staff etc.), the plain meaning is not the best representation of what the bill is meant to achieve.

Question 4

Textualism

Answer 4

The best and most legitimate evidence of legislative intent is the text of the statute itself.

Question 5

Use of And/Or

Answer 5

Courts will sometimes read “and” to mean that you MUST satisfy both factors. However, sometimes it’s read as “or” instead.
Sometimes they are read interchangeably to give the statute sense and effect.

Question 6

Use of May/Shall

Answer 6

The legislature usually uses “may” to allow for greater discretion. “Shall” is mandatory.

Question 7

Ejusdem Generis

Answer 7

“Of the same kind, class, or nature.”
Interpreting a general term.
Used when reading lists.
Ask, what is the organizing principle? Is there something not on the list that seems unexpected? Can we infer that it was intentionally omitted?

Question 8

Noscitur a sociis

Answer 8

“It is known from its associates.”
Fitting a term into a category.
When 2 or more words are grouped together, and ordinarily have a similar meaning but are not equally comprehensive, the general word will be limited and qualified by the special word.

Question 9

Expressio (or inclusio) Unius est Exclusion Alterius

Answer 9

Expression, or inclusion, of one thing indicates exclusion of the other. Words omitted may be just as significant as words set forth.

Question 10

In Pari Materia Rule

Answer 10

Laws of the same matter and on the same subject matter must be construed with reference to each other.

Comparable statutory schemes —> read them the same way.

Counter-argument: Meaningful variation.

Question 11

Rule Against Superfluity/Surplusage

Answer 11

Courts should give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant.

Counter-argument: Belt and suspenders. Just because something is repeated doesn’t mean it is distinct. Just covering all the bases.

Question 12

Stare Decisis

Answer 12

Statutory stare decisis is usually more binding compared to Const’l law or common law precedent.

Question 13

Grounds for Overruling Statutory Precedent

Answer 13

(1) Intervening development of the law that weakens premise of old decision
(2) Positive detriment to coherence and consistency of law –– confusion (i.e., Flood)
(3) Outdated decision inconsistent with current sense of justice or social welfare
(4) Clearly erroneous or unworkable prior decision

Question 14

When will the Court correct a mistake?

Answer 14

1. Where it would lead to an absurd (unconstitutional) result
2. Where it was clearly the result of scrivener’s error
3. Where it would be a significant change from existing law that Congress doesn’t even discuss

Still, not always if seen to be role of legislature to update.

Question 15

When should a court defer under Chevron?

Answer 15

When Congress explicitly authorized agency rule making or adjudication with the force of law.

Question 16

Chevron Analysis

Answer 16

Step 0: Does Congress intend/authorize agency to speak with force of law? Has agency done so? If yes, go on with Chevron; if no, ask if Skidmore applies.

Step 1: Has Congress spoken to the precise question at issue? Or is there a gap in the statute to fill in? If yes and it’s not ambiguous that’s it. Congress controls. If no, proceed.

Step 1.5: Has Congress explicitly delegated authority to elucidate a specific provision through regs? If so, binding unless arbitrary/capricious/manifestly contrary. If no and only an implicit delegation, proceed.

Step 2: If the delegation is implicit, is the agency interpretation reasonable? Usually satisfied through N&C.

Question 17

When should a court defer under Skidmore?

Answer 17

Shaky. Deference isn’t required because no explicit delegation by Congress, so the agency reg doesn’t carry the force of law. No N&C usually gets Skidmore, not Chevron.

Level of deference based on degree of agency care, consistency, formality, and relative expertise. General persuasiveness of agency position.

Question 18

When should a court defer under Auer?

Answer 18

Courts should defer to the agency interpretation of its own reg unless “plainly erroneous or inconsistent with the reg.”

Defer only if reg is genuinely ambiguous, interpretation is reasonable/authoritative/based on expertise/thorough/and doesn’t cause unfair surprise. N&C one way to show this.

Agency knows best what it meant.

Question 19

Non-delegation Doctrine

Answer 19

Congress can’t delegate its legislative power to other entities.

Look for an intelligible principle and clear guidance from Congress in order for the delegation to be ok.

Question 20

Avoiding Constitutional Problems

Answer 20

Avoid interpretations that would render a statute unconstitutional or that would raise serious constitutional difficulties. Inapplicable statue would clearly survive constitutional attack, or if statutory text is clear.

Presumes Congress wouldn’t enact something unconstitutional.

Question 21

Whole Act Rule

Answer 21

Presumes that Congress uses terms consistently and intends that each provision adds something to the statutory scheme, so don’t apply provisions in ways that undercut other provisions.

Also presumes that word/phrase that may be ambiguous can be clarified if same terminology used elsewhere in the Act and context makes meaning clear.

Question 22

Similar Statutes

Answer 22

Judicial interpretations of one statue can be informed by interpretations of similar statutes. When similar statutory provisions are found in comparable schemes, interpreters should presumptively apply them in the same way.

Question 23

Borrowed Statute Rule

Answer 23

When Congress borrows a statute, it adopts by implication interpretations of that statute, absent indication to the contrary.

Only settled interpretations of highest court in the borrowed-from jurisdiction are presumed to be adopted.

Question 24

Rule of Lenity

Answer 24

A rule that in criminal prosecutions, grievous ambiguities in the statute must be interpreted narrowly and resolved in D’s favor.

Justified by seriousness of criminal penalties and fair notice.

Question 25

Presumptions of Statutory Consistnecy

Answer 25

Different words must mean different meanings. Meaningful variation.

*Doesn’t apply if there is another reasonable explanation for the variation (enacted at different times, etc.)

Question 26

Rule Against Implied Repeals

Answer 26

When two statues co-exist, it is the dust of the courts to regard each as effective. Don’t read one to repeal the other without Congress expressly saying so.

Question 27

Severability

Answer 27

Rather than scrapping the whole statute, courts would rather sever/strike down a single provision that Congress can then go back and narrowly tailor.

General presumption in favor of severability unless Congress has said otherwise in the statute.

Question 28

Major Questions Doctrine

Answer 28

Courts avoid deferring to agency statutory interpretations that concern questions of “vast economic or political significance.”