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Legislation
University of Dayton School of Law
Cox, Jeannette

Jeanette Cox, Legislation Spring 2011
 
Legislation
If there is ambiguity, vagueness, absurd (“Dog didn’t bark –Griffin”), or possible scrivenor’s error, then go to textual canons, if still after that then continue on down.  (Larger amount of ambiguity the more likely you are to bring in a substantive canon in earlier.)
Textual Canons
        I.            Expressio Unius est Exclusio Alterius: expression of one thing, suggest the exclusion of others.  Sometimes omitted words can be just as illustrative as words included.  Inapplicable if context suggests the express terms are not exclusive (if there is a catch-all phrase). 
a.       Trigger
                                                               i.      Somebody wants to add something to the statute, when the legislature has already addressed the issue in question
b.      Rationale
                                                               i.      A negative inference; When the legislature failed to include something, it is because the legislature had no intention of including it
c.       Rebuttal 
                                                               i.      Find/Create ambiguity through something in the text (textualists),
                                                             ii.       look for alternative intent (intentionalists), or
                                                            iii.      a purpose which would be ill served by the exclusion of what the person wants to add (purpose approach)
d.      Additionally
                                                               i.      Assumes the legislature thought through statutory language carefully
                                                             ii.      Sometimes people don’t intend their directives to be exclusionary or comprehensive, nor do they necessarily think through every possible permutation to which their directives might be applied
1.       “Don’t hit your brother” doesn’t mean you can kick him
e.      Case
                                                               i.      United Steel Workers of America v. Weber 443 U.S. 193 (1979) – in this case the Court’s main purpose and spirit argument was bolstered by the exclusion of the word “permit” in the statute.  Since Congress excluded the word permit, than they did not “require,” but they did allow voluntary affirmative action programs. 
                                                             ii.      Trumped by Presumption against Retroactivity in Landsgraf.  Held some force but trumped by the presumption. 
                                                               i.      Trumped in Cartledge v. Miller, Congress wanted to make an exception for child-support payments, it would have put one in the statute, trumped by in pari material.
      II.            Noscitur A Sociis:  “of its associates” – specifically in the series its included.
a.       Rationale
                                                               i.      There are multiple meanings for many words and sometimes the correct meaning can be drawn from the context in which they are used
b.      Trigger
                                                               i.      Someone argues that one or more words in the statute is/are ambiguous/vague. Sometimes part of a list but not always
c.       Rebuttal
                                                               i.      Just use other cannon(s) to come up with a different intended meaning – Look to text of statute and other statutes in pari materia, intent, purpose… depending on which theory it is being analyzed under
d.      Case
                                                               i.      The word “discovery” placed next to “exploration” and “prospecting” would mean “mineral discovery”
                                                             ii.      Trumped by surplusage in Gregory v. Ashcroft, however also is supported by the invoking of federalism canon. 
    III.            Ejusdem Generis:  interpret a general term to reflect a class of objects it is accompanied by.  This cannon invites the interpreter to add things to the statute. The particular words indicate the class and the general words extend the provisions of the statute to everything else in the class; Also applies to general words or phrases preceding the list of specific words or phrases
a.       Rationale
                                                               i.      By providing a list associated with a general word or phrase, the legislature is acknowledging its inability to foresee every possible scenario in which the evil it is trying to remedy may manifest itself. Thus, by proving the generic word or phrase, the legislature is expressly inviting the courts to add similar things to the statute
b.      Trigger
                                                               i.      A list of specific words or phrases either preceded or followed by a general word or phrase
c.       Rebuttal
                                                               i.      Use the discretion provided to argue for either a more broad or more narrow definition of the class. In other words, use an ejusdem generis argument to rebut an ejusdem generis argument.
                                                             ii.      Expressio Unius
d.      Case
    IV.            Whole Act Rule:  (coherency assumption) – each provision is to be read as a reference to the whole act.  Each word or phrase in a statute should be read and interpreted in the context of the whole statute. Each word or phrase is intended to be “compatible” with every other part of the statute in order to give every provision “full force and effect.” The purpose is to make sense of the entire statute.
a.       Rationale
                                                               i.      The legislature is assumed to use language in an internally rational, compatible, coherent, and consistent manner
b.      Trigger
                                                               i.      Ambiguous/vague word or phrase in need of interpretation.
c.       Rebuttal
                                                               i.      Use Whole Act argument to counter Whole Act arguments
                                                             ii.      If the opposing argument is that a given interpretation would conflict with another part of the statute à Argue that they would be compatible
                                                            iii.      If opposing argument is that a given interpretation would be compatible with the rest of the statute à Argue that it would conflict with another part of the statute
                                                           iv.      Would require interpretation of the other part of the statute as well, perhaps the need to create ambiguity with another intrinsic cannon (textualist) or extrinsic cannon (intentionalist and purpose approach)
                                                             v.      For textual argument, use intrinsic cannon(s) to create ambiguity in order to justify looking to other statutes in pari material
                                                           vi.      Look

r intended meaning than that which at first it appears to have.
                                                            iii.      Case
1.       Babbit vs. Sweet Home (CB868) – “Harm”
a.       Act passed in 1973, 1982 amendment allowed permits for indirect takings;
b.      1973 Act therefore covered indirect harm, otherwise there would be no need for the permits;
c.       A narrow interpretation of harm to include only direct/purposeful takings would render the 1982 amendment meaningless
i.         Provisos – are to be narrowly construed. Provisos (part of a statute providing exceptions, exemptions, or limitations) are always (?) to be read narrowly, or “strictly construed.”
                                                               i.      Rationale – (Similar to Expression Unius)
1.       If the legislature took the time to specifically exclude objects from the scope of the statute and it failed to exclude something, then it is assumed that the legislature intended not to exclude that thing.
                                                             ii.      Trigger
1.       Someone wants to create a new exception to the statute’s scope/applicability. The proviso cannon can be used whenever there is an exception.
                                                            iii.      Rebuttal
1.       Subject matter cannons to argue for a more liberal/expansive interpretation.
a.       If applicable, a civil rights or remedial statute should be interpreted broadly
2.       For textual argument, use intrinsic cannon(s) to create ambiguity in order to justify looking to other statutes in pari material
3.       For the other theories, is intrinsic or extrinsic cannon(s) to argue that a narrow interpretation of the exceptions would be contrary to the intended meaning or undermine the purpose
                                                           iv.      Cases
1.       Trumped in Muscarello by the rule of lenity.
      V.            Punctuation Rule – can be a last ditch aid in statutory construction
a.       Can be trumped by the statutory context. 
    VI.            Last Antecedent Rule –   Referential and qualifying words or phrases refer only to the last antecedent, unless contrary to the apparent legislative intent derived from the sense of the entire enactment
a.       Can be trumped by the punctuation rule or negated by statutory context. 
  VII.            And/ Or Rule
a.       De Morgan’s Rule:
                                                               i.      Not (P And Q) = Not P or Not Q.
                                                             ii.      Not (P or Q) = Not P and Not Q.
b.      Three “or’s” in McNally would seem like three alternatives; however rule of lenity trumped it saying that it was ambiguous. 
VIII.            Mandatory vs. Discretionary (May/Shall)
    IX.            Plural/Singular and Gender