Descriptve Cannons Flashcards
Ordinary meaning principle
Definition
Words used in a statute are to be given their ordinary meaning in the absense of persuasive reasons to the contrary
The ordinary meaning of words without other pursuasive reasons
Ordinary Meaning Principle
Timing
The ordinary meaning of the term at the time that congress enacted the statute
ordinary meaning of the term vs. when astatute defines the term
courts apply the stated definition in prefrence to the ordinary meaning of the term
ordinary meaning
May v. Shall
may - confers discretion
shall - conveys requirement
ordinary meanings
and/or
and - together
or - either
Argument against the ordinary meaning cannon
- miss the context
- misapply - not use when there are 2 different meanings “ambiguous”
definitional meaning is different from ordinary meaning. definitional meaning is identifified by
looking up a word in the dictioney and plugging in the defintion without regard to the circumstances inwhich the word is used in the particular instance
ordinary meaning
problem with dictionary
- not all dictionaries are the same
- different ways of listing words
- may not know how to properly use the dictonary
- sparks concerns with “dictionary shopping”
The Possible Relevence of terms of Art
Terms with Technical Meaning in Particular Fields
The rule of construction that technical terms of art should be interpreted by refrence to the trade or industry to which they apply
The Possible Relevence of terms of Art
When a word can have both a ordinary layperson meaning and a technical meaning
Use context clues to decide what definition to use
Technical “terms of art”
Ask
- Are these technical terms
- Could these be techincal terms
The Possible Relevence of terms of Art
Terms that have aquired prior meaning in law
In the absense of contrary indication, we assume that when a statute uses such a term. Congress indended it to have its established meaning
Noscitur a Soclls
Expresses the idea that a word is known by
its companions - the words that appear around it
Noseltur a socils usually comes up with
a series of words
Noseltur a socils
A, B, C, D
- An ambigutiy in in B
(what next)
- broad or narrow
Noscitur a Soclls
The meaning we ascribe to one word is influenced by
the accompanying words
Noscitur a Soclls is used most often to refer to one particular application of that ideas involving the
interpretation of items in a series- a list of words or phrases w/ a parrallel structure
To apply noscitur sociis, interpreters need to identify
the pattern or common theme that runs throughout the series that they are interpreting
Ejuddem Generis litteral meaning
of the same kind
(aka specific controls the general)
Ejuddem Generis interprets
Aka use when there is
words in a series, by interpreting a residual or catchall phrase (often at the end of a series)
Ejuddem Generis
When a specific statute sets out a series of specific items ending with a general term, that general term is…
confined to covering subjects comparable to the specifics it follows
As with noscitur a sociis, cts sometimes say that ejusdem generis comes into play only when
there is uncertainty
Argument against the presumption against superfluidity
sometimes may purposely include redundancy
Ejuddem Generis
When a list of specific things is followed by a “catchall phrase,” the catchall phrase usually should be understood to
pick up somethings that the list of specific items does not already cover
The presumption of consistant usage
seek guidance on meaning of a word by examining how other parts of the statute used the same word
With the presumption of consistant usage, we presume
that the word has the same meaning throughout the statute
The presumption of consistant usage is weak when a word in question
has several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation without being confused or getting confused.
The presumption of consistant usage
Often if word is used in 2 different places, the court will
proceed with idea that they have the same meaning
Argument against presumption of consistant usage
multiple people write on one bill
Presumption against superfluidity
words matter, every word should be given its meaning
Presumption against superfluidity
- Suppose that when read in isolation, a statutory provision might be understood in either or 2 different ways
Courts often say that if one of those interpretations would make either the interpretations would make either the provision itself or somthing else in the statute superfluous, that is a reason to favor the other interpretation (assuming that it would not create superfluitdity of its own)
Expressio unius est Exclusio Alterius
The expression of one thing is the exclusion of another
(it simply tells courts to be alert to the possiblity of negative implications)
Expressio unius est Exclusio Alterius
Where congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions…
are not to be implied, in the absense of a contrary legislative intent.
Intent v. Meaning
Meaning
The output that interpreters should get when they apply the appropriate interpretive principles to the statutory text and the other information that the principles tell them to take into account
Intent v. meaning
6 ways to find meaning
- relationship to other things
- context, structure
- legis. historical context
- dictionary - look at dictionary from the statutes time
- consequences, outomes
- common usage of a word
