When words in a statute are ambiguous, judges and agencies rely on canons of statutory construction to interpret the meaning of words. Each canon, however, has an “anti-canon,” which would lead to an opposite conclusion. Judges are thus forced to choose between conflicting canons; these choices are informed by ideology (e.g. textualism v. purposivism) as well as judges’ perspectives on institutional strengths (e.g. legislative history).

Statutory Interpretation: The Basic Issues
1. Statutory Interpretation: Theory – there are three approaches to statutory interpretation: (1) intentionalism (determine intent of framers), (2) purposivism (determine reasonable goals of reasonable people acting in a reasonable manner, from perspective of then or today), and (3) textualism (determine only what text says); Tushnet likes (2).
  1. Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395 (1950) – 319
    1. Two ways to read any precedent. There is no “one way” to read precedent, since a judge may alternatively (1) “distinguish” a past case to minimize its holding or (2) “extend” a case’s holding to apply to a broader set of rules. Both are correct, so an opinion essentially answers “why” (1) or (2) is preferable.
    2. Extrajudicial reasons why judges pick one or two. (1) or (2) may not be available, psychologically, because of
      1. tradition (the court may be in the “Grand [purposive] Style” of John Marshall or the “Formal [textual] Style” of Lochner)
      2. temper (“creative” personnel who orient law toward general welfare or “order” judges who want caution)
      3. situation as seen by court (general situation, e.g. labor unrest in 1890s, might influence decision, as might particular litigants).
    3. Two ways to read any statute. Courts have similar choices with statutes—may freely interpret to effect purpose (purposivism) or literally interpret to limit meaning (textualism).
    4. Defense of purposivism. Llewellyn subscribes to purposivism since statute must be read in light of some purpose: (A) one based on legislative intent of what was before draftsmen, (B) one based on what may be “quarried” out of statute to fit present, or (C) court’s unconscious assumptions.
    5. Significantly, there are opposing canons for every point (p. 325):

#	Textualism	Purposivism
1	A statute cannot go beyond its text. U.S. v. Marshall.	To effect purpose may implement beyondtext.HolyTrinity
6	A statute should be interpreted in light of other similar statutes (in pari materia). Brown & Will.; Entergy	Not if scope and aim are distinct or where a legislative design is to depart from general purpose. Brown (dissent).
8	Where design has been distinctly stated, no place is left for construction. Chevron Step 1.	Courts have the power to inquire into real—as distinct from ostensible—purpose.
9	Definitions and rules of construction contained in an interpretation clause are part of the law and binding.	Definitions and rules of construction in a statute will not be extended beyond their necessary import.
10	A statutory provision requiring liberal construction does not mean disregard of unequivocal requirements of the statute.	Where a rule of construction is provided within the statute itself the rule should be applied.
11	Titles do not control meaning; preambles do not expand scope; section headings do not change language.	The title may be consulted as a guide when there is doubt or obscurity in the body; preambles may be consulted to determine rationale; section headings may be looked upon as part of the statute itself. Holy Trinity.
12	If language is plain and unambiguous it must be given effect. Les v. Reilly.	Not when literal interp. would lead to absurd conseqs. or thwart manifest purpose. **Trinity; Deukmejian; Bock Laundry**
13	Words and phrases which have received judicial construction before enactment are to be understood according to construction. Pierce v. Underwood.	Not if the statute clearly requires them to have a different meaning.
14	After enactment, judicial decision upon interpretation of particular terms and phrases controls.	Practice construction by executive officers is strong evidence of true meaning. Chevron Step 2.
15	Words are to be taken in their ordinary meaning unless they are technical terms or words of art. U.S. v. Marshall; Entergy.	Popular words may bear a technical meaning and technical words may have a popular signification and they should be so construed as to agree with the evident intention or to make the statute operative. **Holy Trinity; Pierce v. Underwood**
16	Every word and clause must be given effect (avoid surplusage).	If inadvertently inserted or repugnant to the rest of statute, may be rejected as surplusage. Chicksaw Nation.
17	The same language used repeatedly in the same connection is presumed to bear the same meaning throughout the statute. Chevron; Entergy.	This presumption will be disregarded where it is necessary to assign different meanings to make the statute consistent.
18	Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute.	Rules of grammar will be disregarded where strict adherence would defeat purpose.
19	Exceptions not made can’t be read. Chick. Nat.; Mass. v. EPA	Whatever is within the reason of the law is within the law itself.
20	Expression of one thing excludes another (expressio unius est exclusio alteris). Whitman v. ATA.	Language may fairly comprehend many cases where some only are expressly mentioned by way of example. Arnold Print.
21	General terms are to receive a general construction.	They may be limited by specific associated terms or by the scope and purpose of the statute. **Deukmejian; Falvey**
22	Where general words follow an enumeration they are to be held as applying only to persons and things of the same kind/class specifically mentioned (ejusdem generis). Chicksaw Nation; Mass. v. EPA (Scalia, diss.).	Ejusdem generis is only an aid in getting the meaning and does not warrant confining the operations of a statute within narrower limits than were intended. Mass. v. EPA.
23	Qualifying words/clauses are to be referred to the next preceding antecedent. Indus. Union Dept. v. API	Not when evident sense and meaning require a different construction.
25	Language has been chosen with due regard to grammatical propriety and is not interchangeable on mere conjecture.	“And” and “or” may be read interchangeably whenever the change is necessary to give the statute sense and effect.
26	There is a distinction between words of permission and mandatory words. **Brown&Will.;Mass.v.EPA.; Whitman**	Not when alternative construction is made necessary by evident intention or by the rights of the public.
-	Noscitur a sociis: “a word is known by the company it keeps.” Whitman v. ATA.
-	Constitutionality Canon: reject construction that would make law unconstitutional; construe statute in way that avoids tough constitutional question. U.S. v. Marshall (Posner, diss.).
-	Rule of Lenity: interpret ambiguous criminal statutes in favor of Δ. U.S. v. Marshall (Posner, diss.).
-	Federalism Canon: presume that statutes were not intended to preempt state authority to act. Local Div. 589.
-	Indian Canon: ambiguous provisions should be interpreted for Indians’ benefit. Chicksaw Nation.
-	Big Deal Canon: if issue is a Big Deal, assume Congressional silence is purposeful. FDA v. Brown & Williamson.
-	Tax Canon: exemptions from taxes must be clearly expressed. Chicksaw Nation.

Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983) – 328
1. Defense of textualism. When a statute is not “on point,” judge must “put it down,” unless the statute says to court/agency “create and revise the common law to accomplish X goal.” Statutes, as written, may be most desirable compromise, so “filling blanks” may not be legislature’s goal.
2. Problems with legislative history. Four reasons why judges should not seek legislative “purpose”: (1) no such thing as “original intent” since a legislature is a body of people without a mind of its own—only relevant outcome is statute; (2) legislatures expire, so courts should not give them life beyond what may be fairly vetoed by President; (3) “liberal” principles require respecting people, not governments; (4) no judge can place himself into minds of enacting legislators.
Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992) – 339
1. Defense of purposivism. Legislative history and purposivism is fine if judge accepts two assumptions: (1) appellate courts are administrative institutions that resolve disputes while clarifying law, and (2) law is human institution that serves human and social needs.
2. Five cases in which legislative history helps.
  1. Avoiding absurd results. When outcome is absurd, court may depart from words to find purpose of statute. Example: Green v. Bock Laundry Machine Co., (U.S. 1989), where Fed. Rule of Evid. prohibited evidence with “prejudicial effect to the defendant” without distinguishing between criminal and civil cases. Leg. history did not show this was intentional (cn. 12).
  2. Identifying drafting error. Legislative history may clarify when something was intended to serve organizational, not substantive, objectives. Example: United States v. Falvey (1st Cir. 1982), where counterfeiting statute originally covered “any...

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