Chapter 6: Linguistic Canons Flashcards
Linguistic Canons (use)
Should be used cautiously because 1. they only work when both the drafter and interpreter use them correctly. 2. They are based on ordinary English not legal. 3. They assume that every word is there for a reason. 4. They mask subjectivity.
In Pari Materia (def)
Most popular and least controversial. Identifies the statutory material that judges can use to find meaning.
In Pari Materia (rule)
- Whole act aspect. 2. Whole code aspect
Whole Act Aspect (def)
A section of the leg act should not be interpreted in isolation.
Whole Code Aspect (def)
New statutes should be interpreted harmonious;y with existing statutes on the same subject.
Whole Code Aspect (flaws)
Hard to define what statutes concern the same subject.
Whole Act Aspect (flaws)
Based on the idea of a single drafter. Though they actually come out of compromises of many.
The Presumption of Consistent Usage and Meaningful Variation (def)
Second most popular and least controversial. Also known as the identical words presumption. 1. Consistent usage and 2. Meaningful variation.
Consistent Usage (def)
Assumed that if Congress uses a word one way then it will have the same meaning throughout.
Meaningful Variation (def)
If Congress uses a word and then changes to another word then it is presumed to have changed meaning.
Presumption of Consistent Usage (flaws)
Can be rebutted with evidence that Congress meant something else.
Rule Against Surplusage (def)
Least reliable canon. Proper interpretation is that every word has a meaning.
Rule Against Surplusage (parts)
- Every word must have an independent meaning. AND 2. two different words cannot have the same meaning.
Rule Against Surplusage (flaws)
Assumes 1. it was drafted with care. 2. each word was thought upon. and 3. if there were extra words, leg would have removed them.
Noscitur a Sociis (def)
When a words has more than one meaning, the true meaning should be gotten from the words around it.
Noscitur a Sociis (use)
Usually with lists of words.
Noscitur a Sociis (flaws)
- This and surplusage rule conflict. 2. Some argue that it can only be used when a word doesn’t have a fixed meaning. Does a word ever only have one meaning?
Ejusdem Generis (def)
Subset of Noscitur. Of the same kind. When general words are near specific words, the general should be limited to include only things similar to the specific.
Ejusdem Generis (use)
With lists but primarily when ending with a general word or catch all.
Ejusdem Generis (flaws)
- judges confuse this and Noscitur. 2. hard to find commonality between words. 3. does not reflect reality of legal drafting. Catch alls are used to broaden lists not narrow them.
Expressio Unius Est Exclusio Alterius (def)
Negative implication. The inclusion of one means the exclusion of another. Implicated when there is a gap (either intended to omit the circumstance or didn’t think of it).
Expressio Unius (flaws)
- assumes Congress thought of every possibility. 2. Assumes that if it meant to cover all then it would have used a catch all.
