Canons of Statutory Interpretation Flashcards
Textual Canons: Maxims
- Look to the ordinary meaning of a word or phrase.
a. Contemporary dictionaries
b. Prototypical meaning of a term vs. an extensive meaning of a term. - Look to the technical meaning of a term, where applicable
a. Look to experts in a particular field
Textual Canons: Grammar Canons
Noscitur a sociis: a word is known by the words around it - by the company it keeps. Look to the words around a word to give it additional meaning.
Ejusdem generis - in a list of words, the catch-all term at the end should carry a meaning similar to that of the terms in the list, or at least a more specific meaning than it might ordinarily have.
Expressio (Inclusion) Unius - the inclusion of some words implies that other words were specifically excluded.
Rule against absurdity - the construction of a term should not create an absurd outcome
De Dictio (generic meaning of a term) vs. De Re (specific meaning of a term).
Textual Canons: Whole Act Rule
- The interpretation of a provision should be aligned with or consistent with the whole Act.
- Also, look to see whether the provision is consistent with the title of the Act.
- Consistent with the preamble of the Act.
- The interpretation should not create surplusage or redundancy in a provision.
- Ascribe value to meaningful variation between provisions and between statutes (where applicable)
- Make sure that the interpretation does not render inoperative any other provision of the Act.
Textual Canons: Lockhart rule
Rule of the last antecedent: a phrase only modifies a single term that follows, not all the terms in the list.
- Look to other US Code Sections to confirm/analyze.
- Look to the structure of the sentence and the provision, and see if these outweigh the ‘series qualifier’ approach, which looks to ordinary English and finds that a modifier can modify more than just the single term after it.
Textual Canons: Comma Case
Look to whether the provision has an Oxford comma or not - this could affect how the preceding term modifies the later term.
- Look to the drafting guidelines of the state as well - does the state have guidelines for including or excluding Oxford commas?
- Look to the overall purpose of the statute, and see whether the textual interpretation supports the general purpose of the statute.
Substantive Canons: Rule of Lenity: Muscarello
The Rule of Lenity requires narrow constructions/interpretations for criminal statues when ambiguous.
- In Muscarello - is there “grevious ambiguity” in the statute? If so, apply the rule of lenity.
- Before that, however, use all tools of statutory interpretation: various meanings of the term, the purpose of the statute, the variation/consistency of usage, the Whole Act, etc.
- Justice Ginsburg (dissent): we should apply the Rule of Lenity UNLESS the government is “unambiguously correct”
Substantive Canons: Constitutional Avoidance: Skilling and Sebelius rule
In general, if a statute has constitutional implications, courts should adopt a narrow construction to avoid constitutional issues, per Skilling and Sebelius.
Scalia’s classic avoidance approach: strike down the statute rather and adopting a narrow construction
Modern avoidance approach: comfortable constitutional reading over an uncomfortable constitutional reading.
Substantive Canons: Constitutional Avoidance: McConnell and Davis
In McC
Substantive Canons: Federal Preemption: Gregory v. Ashcroft
If a statute is ambiguous, presume that Congress did not intend to preempt state law - always have a presumption against federal preemption.
Substantive Canons: Add Value?
Substantive Canons may not actually add value: consider the dueling canons approach, where each substantive canons has an equal and opposite canon.
Substantive Canons: Continuity and Coherence: General
To maintain continuity and coherence,
- Presumption of consistency with common law. Construe consistence with common law
- Whole Act Rule: Construe consistence with the Whole Act
- Rule Against Implied Repeals: Construe so as not to impliedly repeal another provision in the statute.
- Presumption of Horizontal Coherence: Construe so as to fit the provision within the existing policy and regulatory landscape.
- Borrowed Statute Rule: adopt the construction and judicial precedent for phrases that have been lifted from other provisions.
- Presumption of Congressional Awareness: presume that Congress is aware of prior judicial constructions of similar statues, and will craft legislation accordingly.
Substantive Canons: Continuity and Coherence: Bob Jones University approach
- First, consider what the text of the statute says.
- Then, consider the common law underpinnings of the term/phrase.
- Consider amendments to the particular provision
- Consider the purpose of the agency.
- Consider failed attempts to alter or change the legislative landscape, or to change the IRS’ interpretation.
- Consider any other laws or precedents that might apply.
Substantive Canons: Disparate Impact: Griggs and Texas Dept. of Housing
Under Griggs, courts should look to the legislative history to divine legislative intent, and should strongly consider the disparate treatment that a particular practice might have on a particular minority group.
Under Texas Dept. of Housing (disparate impact), courts should look to:
- Legislative history (including amendments to a bill) in order to identify the extension of liability.
- Acceptance of a theory by nine other Courts of Appeals during the run-up to Congressional action - the amendment codified what these courts had accepted.
- Whether a particular provision has a disparate impact on minority groups or involves disparate treatment of minority groups.
