Canons Outline

CANONS

1. Canons are rules balance the goals of minimizing the dangers of judicial discretion and minimizing the chances of enforcing a legislative oversight.

2. Canons are rules of thumb that judges use to construe text.

3. Intrinsic “Textual” Canons

   1. Some canons are regarded as efforts to construe the text itself, without the aid of any extrinsic sources.

   2. These canons use only the operative words in the statute itself (and whatever norms of usage attach to those particular words including what is “hooked into” the statute) to construe the statute.

      1. They attribute meaning to words based on their proximity, arrangement, punctuation, specificity, and other attributes “intrinsic” to the text.

   3. Like dictionaries, one can invoke them at the first step of statutory construction, without any showing of textual ambiguity.

   4. Integrative Canons: Make the statute consistent with itself by reading operative term in light of other identical or extremely proximate terms. In applying integrative canons, one references only the operative words in the same specific statute.

      1. Noscitur a Sociis: “A word is known by the company it keeps.” Construe ambiguous terms in light of closely related proximate terms in the same series.

         1. Dolan: phrase “negligent transmission” of mails should be construed to be consistent with “loss” and “miscarriage” of mails.

         2. Jarecki: term “discover” must be construed to be consistent with “exploration” and “mining.”

         3. Distinguished from EG because there is no broad, catchall phrase—just at least 3 explicit terms.

      2. Similar Terms: Construe identical terms in different parts of the same statute similarly.

         1. Robinson v. Shell Oil: Court defined “employees” as both prospective, past, and future employees, because the remedies section of the same statute included “reinstatement” and “hiring” of “employees.”

      3. Definitional/Interpretative Clauses of Statute: Definitions and rules of construction contained in an interpretation clause are part of the law and binding.

   5. Anti-Redundancy Canons

      1. Expressio Unius Est Exclusio Alterius: Expression of one thing excludes another. Everything not enumerated is excluded when a statute expressly enumerates a detailed list of items, exceptions, etc.

      2. Ejusdem Generis: When a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration and the final term should not be construed to render the preceding terms surplassage. Where general words follow an enumeration they are to be held as applying only to persons and things of the same general kind or class specifically mentioned.

         1. Caminetti: The Mann Act prohibited the transportation of any woman or girl across state lines for prostitution, debauchery, or any other immoral purpose—the construction of this phrase should be limited to acts that are sexual in nature (does not include gambling).

      3. Presumption Against Superfluities: Terms should be construed in a way that does not render other terms surplus.

         1. Bailey v. United States

            1. Facts: Police found a gun inside a bag in the locked trunk of Bailey’s car after stopping him for a traffic offense and arresting him after finding cocaine in the car. He was convicted pursuant to 18 U.S.C. § 924(c)(1)(A).

            2. Applicable Statutory Language: §924(c)(1)(A) reads, “…any person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, shall, in addition to the punishment for the [underlying crime] be sentenced…”

            3. Issue: Whether Bailey’s “use” of a firearm falls within the scope of the statute.

            4. Holding: The government must show active employment of the firearm.

            5. Plain Meaning

               1. The ordinary meaning of “use” does not include mere possession.

            6. Canon

               1. Presumption Against Superfluities—We assume that in using two terms Congress intended each term to have a particular, non-superfluous meaning.

                  1. While a broad reading of “use” undermines virtually any function of “carry,” a more limited, active interpretation of “use” preserves a meaningful role for “carries” as an alternative basis for a charge.

   6. Usage and Linguistic Norms/Grammar Canons

      1. Last Antecedent Rule: A conditional phrase qualifies the provision immediately preceding it. Qualifying or limiting words or clauses are to be referred to the next preceding antecedent.

      2. And/Or and May/Shall Rule: There is a distinction between words of permission and mandatory words. It must be presumed that language has been chosen with due regard to grammatical propriety and is not interchangeable on mere conjecture.

      3. Punctuation Rules: Punctuation will govern when a statute is open to two constructions.

      4. Ordinary Usage: Words are to be taken in their ordinary meaning unless they are technical terms or words of art.

4. Extrinsic Canons

   1. These canons invoke sources outside the text.

   2. There must be ambiguity in order to invoke these canons (though the requisite level of ambiguity varies from canon to canon).

   3. Reference (“Institutional”) Canons: Determine meaning by referring to some outside source/institution/interpreter.

      1. Stare Decisis: After enactment, judicial decision upon interpretation of particular terms and phrases control. Words and phrases which have received judicial construction before enactment are to be understood according to that construction.

         1. Taken more seriously than other extrinsic canons.

         2. Highly valued because it is protecting a reliance interest.

      2. Executive or Administrative Interpretation: Practical construction by executive officers is strong evidence of true meaning (Chevron).

      3. Key Legislators (LH)

   4. Integration Canons: Determine meaning by making the operative words fit in with the rest of the law (body of law). These canons are considered extrinsic because they bring in text that is not linked to the operative text (the statute at issue).

      1. Anti-Derogation Rule: Statutes in derogation of the common law will not be extended by construction. Statutes are to be read in the light of the common law and a statute affirming a common law rule is to be construed in accordance with the common law. A provision of a statute is generally not interpreted in such a way as to minimize or “derogate” another provision implicitly.

      2. Canon Against Implied Repeal: In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.

      3. Specific Trumps General: Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one.

      4. Constitutional Avoidance: If a statute is susceptible to more than one reasonable construction, one constitutional and another unconstitutional, courts should choose the former.

      5. Anti-Preemption Canon: Integrate federal law with state law.

         1. It can also be categorized as a substantive canon.

   5. Substantive Canons: Determine meaning by giving special weight to some interest favored by the law. These are thumb on the scale canons.

      1. Textualists hate these substantive canons.

      2. Rule of Lenity: Ambiguity in criminal statutes should be resolved in favor of the defendant.

      3. Presumption Against Retroactivity: If there are two constructions of a statute and one would apply retroactively and the other would not, go with the latter.

         1. Presumption that Congress intends to impose new liability prospectively, unless the statute clearly indicates the contrary, despite the fact that the Constitution places few restrictions on the enactment of legislation that imposes retroactive civil liability.

         2. However, judicial precedents are presumptively retroactive—based on assumption that courts are just saying what the law is and has always been.

         3. Justified by notice concerns.

      4. Canon Favoring Taxpayers Against the Government

      5. Canon Favoring Indian Tribes

      6. Federalism Canons

         1. Preserve State Autonomy: Avoid abrogation of state sovereignty.

         2. Anti-Preemption Canon: Statutes should be construed to not preempt state laws. Where the text of a preemption clause is open to more than one plausible reading, courts ordinarily accept the reading that disfavors preemption. This presumption is heightened in areas of traditional state sovereignty.

         3. Clear Statement Rule: If Congress intends to alter the usual constitutional balance between the states and the federal government, it must make its intention to do so unmistakably clear in the language of the statute.

5. Exceptions

   1. Sometimes enacted text is regarded as extrinsic to operative text, and not to be invoked unless the operative text is ambiguous.

      1. Titles, Preambles, Section Headings: Canon that titles do not control meaning; preambles to not expand scope; section headings do not change language.

   2. Sometimes text outside a statute are considered to “hooked into” the operative text, and such words are not considered extrinsic.

      1. In Pari Materia: A statute’s meaning may be determined in light of other statutes on the same subject matter—using other statutes as a dictionary or sorts.

         1. It is only considered intrinsic when looking to previously enacted statutes.

      2. Dictionaries

   3. Sometimes it is necessary to look at a broad “purpose” or the statutory context in applying textual canons

      1. For example, in order to determine whether a “tomato” is a fruit or vegetable, it may be necessary to determine whether it is being used as a term of art or should be subject to common usage, which may require looking at some “purpose” or statutory context.

6. Parrying an Intrinsic Canon

   1. According to textualists, intrinsic canons cannot be “parried” (extrinsic canons cannot be invoked) merely by indications of contrary statutory purpose—there must be some textual ambiguity apart from a contrary purpose established “extrinsically.”

      1. A purposivist would dispute this.

   2. Inapplicable Canons: In some cases, an intrinsic canon is, by its own language, inapplicable.

      1. Canons can have metacanons and may be inapplicable because these metacanons are not met.

      2. Certain canons have requirements that must be met before they can be applied.

      3. Ali v. Federal Bureau of Prisons

         1. Facts: The Federal Torts Claims Act creates a general waiver of sovereign immunity for state tort suits. However,...

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