Chapter 6: Linguistic Canons

Question 1

Linguistic Canons (use)

Answer 1

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.

Question 2

In Pari Materia (def)

Answer 2

Most popular and least controversial. Identifies the statutory material that judges can use to find meaning.

Question 3

In Pari Materia (rule)

Answer 3

1. Whole act aspect. 2. Whole code aspect

Question 4

Whole Act Aspect (def)

Answer 4

A section of the leg act should not be interpreted in isolation.

Question 5

Whole Code Aspect (def)

Answer 5

New statutes should be interpreted harmonious;y with existing statutes on the same subject.

Question 6

Whole Code Aspect (flaws)

Answer 6

Hard to define what statutes concern the same subject.

Question 7

Whole Act Aspect (flaws)

Answer 7

Based on the idea of a single drafter. Though they actually come out of compromises of many.

Question 8

The Presumption of Consistent Usage and Meaningful Variation (def)

Answer 8

Second most popular and least controversial. Also known as the identical words presumption. 1. Consistent usage and 2. Meaningful variation.

Question 9

Consistent Usage (def)

Answer 9

Assumed that if Congress uses a word one way then it will have the same meaning throughout.

Question 10

Meaningful Variation (def)

Answer 10

If Congress uses a word and then changes to another word then it is presumed to have changed meaning.

Question 11

Presumption of Consistent Usage (flaws)

Answer 11

Can be rebutted with evidence that Congress meant something else.

Question 12

Rule Against Surplusage (def)

Answer 12

Least reliable canon. Proper interpretation is that every word has a meaning.

Question 13

Rule Against Surplusage (parts)

Answer 13

1. Every word must have an independent meaning. AND 2. two different words cannot have the same meaning.

Question 14

Rule Against Surplusage (flaws)

Answer 14

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.

Question 15

Noscitur a Sociis (def)

Answer 15

When a words has more than one meaning, the true meaning should be gotten from the words around it.

Question 16

Noscitur a Sociis (use)

Answer 16

Usually with lists of words.

Question 17

Noscitur a Sociis (flaws)

Answer 17

1. 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?

Question 18

Ejusdem Generis (def)

Answer 18

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.

Question 19

Ejusdem Generis (use)

Answer 19

With lists but primarily when ending with a general word or catch all.

Question 20

Ejusdem Generis (flaws)

Answer 20

1. 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.

Question 21

Expressio Unius Est Exclusio Alterius (def)

Answer 21

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).

Question 22

Expressio Unius (flaws)

Answer 22

1. assumes Congress thought of every possibility. 2. Assumes that if it meant to cover all then it would have used a catch all.