How to Resolve a Conflict Between Statutes of Equal Status
See, e.g., Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. Rev. 1109, 1111-12 (2008) (revisiting the hypothetical on "the fiftieth anniversary" of a famous debate between the legal scholars H.L.A. Hart and Lon Fuller that used this example as a focal point).
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958).
E.g., FCC v. NextWave Pers. Commc'ns Inc., 537 U.S. 293, 311 (2003) (Breyer, J., dissenting).
E.g., Frederick Schauer, Formalism, 97 Yale L.J. 509, 545 (1988).
E.g., Brad A. Greenberg, Rethinking Technology Neutrality, 100 Minn. L. Rev. 1495, 1530 (2016). Assume the drone is able to carry objects, or even people—and ask why that matters. See id.
E.g., Richard H. Fallon, Jr., The Meaning of Legal "Meaning" and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1260 (2015).
Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 663 (1958).
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 528 (1947).
See, e.g., Abner J. Mikva & Eric Lane, Legislative Process 111 (2d ed. 2002).
See Frankfurter, supra note 8, at 528.
Frankfurter, supra note 8, at 529.
See, e.g., Mikva & Lane, supra note 9, at 111.
Mikva & Lane, supra note 9, at 111.
See, e.g., Frankfurter, supra note 8, at 528.
See, e.g., Mikva & Lane, supra note 9, at 111-12.
See, e.g., John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 445 (2005) (arguing that bills "are likely to look awkward" because they result from "a legislative process that has many twists and turns; that gives the most intensely interested or even outlying legislative actors many opportunities to stop, slow, or reshape initiatives that have apparent majority support; and that emphasizes the legislative majority's need to compromise as a way to secure a bill's passage").
See, e.g., Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1182 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994).
See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) ("With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given."). Cf. Transcript of Oral Argument at 12, 41, Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, No. 15-1439, 2018 U.S. LEXIS 1912 (U.S. 2017) (statements of Justice Samuel Alito) (describing statutory provision as "gibberish" and asking whether there is "a certain point at which we say this [provision] means nothing, we can't figure out what it means, and, therefore, it has no effect").
5 U.S. (1 Cranch) 137, 177 (1803). See also Hart & Sacks, supra note 17, at 640 ("Adjudication in its normal operation is at once a process for settling disputes and a process for making, or declaring, or settling law.").
See, e.g., Mikva & Lane, supra note 9, at 102 ("All approaches to statutory interpretation are framed by the constitutional truism that the judicial will must bend to the legislative command."). See generally Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 283 (1989) (defining and exploring the concept of legislative supremacy in the field of statutory interpretation).
See, e.g., Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 Nw. U. L. Rev. 1239, 1251-52 (2002) ("The legitimacy of judicial power over statutory interpretation has long been thought to flow from this assumption that judges would implement Congress's decisions. Recent scholarship on statutory interpretation has made this often-implicit assumption about judging into the focal point of an important historical debate." (citations omitted)).
In a highly influential article, Lon Fuller presented a hypothetical dispute from the year 4300 in which five Justices of the "Supreme Court of Newgarth" split irreconcilably on the proper resolution of a case. Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616, 616 (1949). Each Justice issues an opinion that embodies a different school of interpretation, representing "a microcosm of this century's debates over the proper way to interpret statutes." William N. Eskridge, Jr., The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell, 61 Geo. Wash. L. Rev. 1731, 1732 (1993).
See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 75 (2006).
See, e.g., id. at 91-92. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 30 (2012) (arguing against using the word "intent" even if it refers solely to the intent "to be derived solely from the words of the text" because it "inevitably causes readers to think of subjective intent"). For further discussion of the ways in which textualists are skeptical about legislative intent, see infra "Textualism."
See, e.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 84-85.
See discussion infra "Ordinary Meaning."
See discussion infra "Statutory Context."
See discussion infra "Canons of Construction."
See discussion infra "Legislative History."
See discussion infra "Statutory Implementation."
See, e.g., John F. Manning, Inside Congress's Mind, 115 Colum. L. Rev. 1911, 1932-33 (2015) (noting that some versions of textualism emphasize the importance of creating "clear interpretive rules" as a background against which Congress may legislate (quoting Finley v.United States, 490 U.S. 545, 556 (1989))).
See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 847 (1992) (noting that his purposivist interpretive theory incorporates "widely shared substantive values, such as helping to achieve justice by interpreting the law in accordance with the 'reasonable expectations' of those to whom it applies" (citation omitted)); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001) (noting that textualists ask how a "reasonable user of words would have understood the statutory text" (internal quotation mark omitted)).
E.g., William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1116 (2017).
5 U.S. (1 Cranch) 137, 177 (1803).
See, e.g., Benjamin N. Cardozo, The Nature of the Judicial Process 24-25 (1928). See also, e.g., Muskrat v. United States, 219 U.S. 346, 361 (1911) ("That judicial power . . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.").
E.g., Hart & Sacks, supra note 17, at 640.
Norway Plains Co. v. Boston & Me. R.R., 67 Mass. 263, 267-68 (1854). See also Cardozo, supra note 35, at 28 ("[T]he problem which confronts the judge is in reality a twofold one: he must first extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the principle is to move and develop, if it is not to wither and die.").
See Edward H. Levi, An Introduction to Legal Reasoning, 15 U. Chi. L. Rev. 501, 501-02 (1948). See also, e.g., Rogers v. Tennessee, 532 U.S. 451, 461 (2001) ("In the context of common law doctrines . . . , there often arises a need to clarify or even to reevaluate prior opinions as new circumstances and fact patterns present themselves. Such judicial acts, whether they be characterized as 'making' or 'finding' the law, are a necessary part of the judicial business . . . .").
William N. Eskridge, Jr., Phillip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 5 (2d ed. 2006) (contrasting common law approach to statutory interpretation). Cf. generally Jeffrey A. Pojanowski, Reading Statutes in the Common Law Tradition, 101 Va. L. Rev. 1357 (2015) (describing various arguments for and against applying common law principles of reasoning to statutory interpretation).
Eskridge et al., supra note 39, at 5.
See, e.g., John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2413, 2425 (2017).
United States v. Am. Trucking Ass'ns, Inc., 310 U.S. 534, 542 (1940). See also, e.g., Manning, Textualism and Legislative Intent, supra note 16, at 423 ("In any system predicated on legislative supremacy, a faithful agent will of course seek the legislature's intended meaning in some sense . . . ."). Manning goes on to explain, however, that textualists do not "practice intentionalism," because they seek an objective meaning rather than Congress's actual intent. Id. at 423-24. For further discussion of this point, see infra "Textualism."
See, e.g., Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 10 n.26 (2006) (citing a number of "works supporting the faithful agent theory"). See also Eskridge et al., supra note 39, at 5-8 (exploring various conceptions of "faithful agent" role).
Mikva & Lane, supra note 9, at 103.
See, e.g., United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 216 (1979) (Burger, C.J., dissenting) ("The Court reaches a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of [the disputed act]. I cannot join the Court's judgment, however, because it is contrary to the explicit language of the statute and arrived at by means wholly incompatible with long-established principles of separation of powers."); Levi, supra note 38, at 520 ("[The words of a statute] are not to be taken lightly since they express the will of the legislature. The legislature is the law-making body."). See also Molot, Reexamining Marbury, supra note 21, at 1250-54 (examining Founders' conceptions of the judicial power).
King v. Burwell, 135 S. Ct. 2480, 2505 (2015) (Scalia, J., dissenting).
See, e.g., Hart & Sacks, supra note 17, at 1194-95.
See generally Kirk A. Kennedy, Reaffirming the Natural Law Jurisprudence of Justice Clarence Thomas, 9 Regent U. L. Rev. 33, 41-50 (1997) (exploring the history and development of various strains of natural law). See also, e.g., Cardozo, supra note 35, at 124-25 ("The theory of the older writers was that judges did not legislate at all. A preexisting rule was there, imbedded, if concealed, in the body of the customary law. All that the judges did, was to throw off the wrappings, and expose the statute to our view.").
Black's Law Dictionary (10th ed. 2014). See also Richard A. Posner, The Problems of Jurisprudence 5 (1990) (defining natural law as "the idea that there is a body of suprapolitical principles that underwrite 'positive law,' meaning law laid down by courts, legislatures, or other state organs").
Of course, natural law was not the only prominent view of statutory interpretation in the early history of American law. Notably, many subscribed to what was sometimes dubbed (mostly by its detractors) as "literalism." See United States v. Dotterweich, 320 U.S. 277, 284 (1943) ("Literalism and evisceration are equally to be avoided."); Learned Hand, How Far Is a Judge Free in Rendering a Decision?, in The Spirit of Liberty: Papers and Addresses of Learned Hand 107 (Irving Dilliard ed., 1952) ("[T]here are two extreme schools . . . . One school says that the judge must follow the letter of the law absolutely. I call this the dictionary school."). Literalism refused to consider any sense of purpose that was not strictly grounded in the text. See William S. Jordan, III, Legislative History and Statutory Interpretation: The Relevance of English Practice, 29 U.S.F. L. Rev. 1, 4 (1994) ("[T]he literal rule [in English law] holds that the intent of Parliament is determined from the actual words of the statute. If Parliament's meaning is clear, that meaning is binding no matter how absurd the result may seem."). See, e.g., Caminetti v. United States, 242 U.S. 470, 485 (1917) ("Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion.").
Manning, Textualism and the Equity of the Statute, supra note 32, at 29.
Manning, Textualism and the Equity of the Statute, supra note 32, at 29-32.
J. Clark Kelso & Charles D. Kelso, Statutory Interpretation: Four Theories in Disarray, 53 SMU L. Rev. 81, 88 (2000).
Formalism represents a certain way of reasoning and could be adopted in tandem with natural law approaches. See, e.g., Posner, The Problems of Jurisprudence, supra note 49, at 11. However, it is arguably more often associated with a more "literal" view of statutes—at least in its more modern formulations. See, e.g., Daniel Farber, The Ages of American Formalism, 90 Nw. U. L. Rev. 89, 91 (1995) ("Formalists believe that certainty, stability, and logic are the primary values to be sought by judges . . . . To implement these values, they embrace formalist methods, such as textualism as a system for interpreting statutes . . . ."). Cf. Richard H. Pildes, Forms of Formalism, 66 U. Chi. L. Rev. 607, 620 (1999) ("Rule-following in the sense of textual literalism was indeed an aspect of classical formalism—as it is likely to be of any body of American legal thought—but it was a marginal concern. Formalism was a project of rationalizing the central principles and methods of the common law . . . .").
Molot, The Rise and Fall of Textualism, supra note 43, at 12.
Posner, The Problems of Jurisprudence, supra note 49, at 15.
Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 4-5 (1983). See also Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 181 (1987) (defining formalism in contrast to other scholars as "the use of deductive logic to derive the outcome of a case from premises accepted as authoritative").
See Lon L. Fuller, A Rejoinder to Professor Nagel, 3 Nat. L. F. 83, 84 (1958) ("It is an acceptance of the possibility of 'discovery' in the moral realm that seems to me to distinguish all the theories of natural law from opposing views."); Pildes, supra note 54, at 608-09 ("To the classical formalists, law . . . meant a scientific system of rules and institutions that were complete in that the system made right answers available in all cases; formal in that right answers could be derived from the autonomous, logical working out of the system; conceptually ordered in that ground-level rules could all be derived from a few fundamental principles; and socially acceptable in that the legal system generated normative allegiance.").
See generally G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 2 (1978) (arguing that in the 19th century, "law was conceived of as a mystical body of permanent truths, and the judge was seen as one who declared what those truths were and made them intelligible—as an oracle who 'found' and interpreted the law").
Molot, The Rise and Fall of Textualism, supra note 43, at 12.
Molot, The Rise and Fall of Textualism, supra note 43, at 12.
See, e.g., Frank E. Horack, Jr., In the Name of Legislative Intention, 38 W. Va. L.Q. 119, 119 (1932) ("Jeffersonian conceptions of individual freedom and equality have kept alive the doctrine that our government is one of laws and not of man. In this idea there is safety, for if law is justice and judicial opinions are produced, cellophane wrapped, by some monotonously automatic process which man cannot disturb, then man lives 'non sub hom ine sed sub deo et lege' [not under man, but under God and law], and is free from mortal tyranny."). Cf. Molot, The Rise and Fall of Textualism, supra note 43, at 12 ("The rise of formalism and heightened confidence in the constraining force of natural law principles enabled the federal courts to be very aggressive in their search for legal meaning and yet to be relatively unconcerned about exceeding their constitutional role or interfering with legislative supremacy.").
William H. Loyd, The Equity of a Statute, 58 U. Pa. L. Rev. 76, 77 n.8 (1909).
Manning, Textualism and the Equity of the Statute, supra note 32, at 4 n.6 (quoting The Nicomachean Ethics of Aristotle 133 (Sir David Ross trans., 1925)).
See, e.g., Levi, supra note 38, at 501 ("The pretense [of legal reasoning] is that the law is a system of known rules applied by a judge . . . .").
See generally Lon L. Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376 (1946); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899); Horack, supra note 62; Levi, supra note 38; Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379 (1907); John Willis, Statute Interpretation in a Nutshell, 16 Can. B. Rev. 1 (1938). See, e.g., Cardozo, supra note 35, at 41 ("The logic of [one] principle prevailed over the logic of the others. . . . The thing which really interests us, however, is why and how the choice was made between one logic and another. In this instance, the reason is not obscure. One path was followed . . . because of the conviction in the judicial mind that the one selected led to justice.").
Frederick Schauer, The Limited Domain of the Law, 90 Va. L. Rev. 1909, 1912 (2004).
Id. at 1911, 1923.
See, e.g., Cardozo, supra note 35, at 128 ("Obscurity of statute . . . may leave the law unsettled, and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function.").
Cardozo, supra note 35, at 22-23. See, e.g., Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting) ("If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law . . . does not exist without some definite authority behind it.").
Karl N. 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, 395 (1950).
See, e.g., Fuller, Reason and Fiat in Case Law, supra note 66, at 378.
See, e.g., Horack, supra note 62, at 121 ("The problem of interpretation when applied in the field of government arises because the legislature makes the law and the courts apply it. And since the departmentalization of government, the task of applying generalized standards of conduct to particularized consequences makes even an honest difference of opinion inevitable.").
See, e.g., Levi, supra note 38, at 501, 520.
S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). As one influential scholar pointed out, the fact that statutes, in particular, were made through public, political processes meant that the law was "no longer the mysterious thing it was once." Pound, supra note 66, at 384-85.
See, e.g., Hart & Sacks, supra note 17, at 1374 (arguing courts should "[r]espect the position of the legislature as the chief policy-determining agency of the society"); Manning, Textualism and the Equity of the Statute, supra note 32, at 57 (arguing "that the U.S. Constitution rejected English structural assumptions in ways that make the equity of the statute an inappropriate foundation for the 'judicial Power of the United States'"). Cf. Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 693 (1995) (discussing the problem of "the countermajoritarian difficulty" proposed by Alexander Bickel, which notes the tension inherent in "the exercise of power possessed by judges neither placed in office by the majority nor directly accountable to the majority to invalidate majoritarian policies" (internal quotation marks omitted)).
Frankfurter, supra note 8, at 534.
Frankfurter, supra note 8, at 545. See, e.g., Int'l News Serv. v. Associated Press, 248 U.S. 215, 267 (1918) (Brandeis, J., dissenting) ("Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be deemed affected with a public interest.").
Pound, supra note 66, at 381. As will be discussed in more detail, infra "Major Theories of Statutory Interpretation," both purposivists and textualists pursue an objective legislative intent, rather than Congress's actual intent.
See Frankfurter, supra note 8, at 533 ("[Courts] are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. . . . [T]he function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature."); Pound, supra note 66, at 382 ("[T]he object of spurious interpretation is to make, unmake, or remake, and not merely to discover. . . . It is essentially a legislative, not a judicial process . . . .").
See, e.g., Kimble v. Marvel Entm't, 135 S. Ct. 2401, 2414 (2015) (rejecting certain arguments regarding statutory meaning as "more appropriately addressed to Congress," citing "rule of law values" (quoting Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2413 (2014) (internal quotation marks omitted)); Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967 (2014) ("[C]ourts are not at liberty to jettison Congress' judgment[.]"); Cannon v. Univ. of Chi., 441 U.S. 677, (1979) (Powell, J., dissenting) (arguing a certain interpretation of a statute "illustrate[s] the undesirability of th[e] assumption by the Judicial Branch of the legislative function"). See generally, e.g., Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593, 593-94 (1995) (noting statutory interpretation necessarily entails judgment about a court's "institutional stance in relation to the legislature," and arguing the current "legal culture's understanding of the link between statutory interpretation and democratic theory verges on the canonical and is embodied in the principle of 'legislative supremacy'").
See, e.g., Hart & Sacks, supra note 17, at 1194 (arguing the principle of institutional settlement "obviously, forbids a court to substitute its own ideas for what the legislature has duly enacted"); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 22 (Amy Gutmann ed., 1997) ("It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is."). See also, e.g., Manning, Textualism and Legislative Intent, supra note 16, at 430 n.34 ("Textualists implicitly build on the influential work of legal realist Max Radin.").
See, e.g., Fuller, A Rejoinder to Professor Nagel, supra note 58, at 84 (rejecting "the notion that there is a 'higher law' transcending the concerns of this life" but defending the "one central aim common to all the schools of natural law, that of discovering those principles of social order which will enable men to attain a satisfactory life in common" through a collaborative process to establish these shared purposes).
E.g., Cardozo, supra note 35, at 66 ("The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence."); id. at 133 ("[T]he judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals . . . ."); id. at 135 ("You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. . . . [This] is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges.").
William N. Eskridge, Jr., Dynamic Statutory Interpretation 58 (1994). Eskridge argued that this conception of the Constitution is consistent with the framers' intentions, claiming that they believed "in the productivity of evolving interpretation to meet new circumstances." Id. at 117. But see Manning, Textualism and the Equity of the Statute, supra note 32, at 82 ("I believe that, properly understood, The Federalist in fact contradicts the assumptions underlying the equity of the statute."). In turn, Eskridge responded to Manning's article in All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Colum. L. Rev. 990, 994 (2001).
Eskridge, supra note 85, at 50. Eskridge argued that a statute's meaning only becomes clear through application, and that this application "engenders dynamic interpretations": "When successive applications of the statute occur in contexts not anticipated by its authors, the statute's meaning evolves beyond original expectations. Indeed, sometimes subsequent applications reveal that factual or legal assumptions of the original statute have become (or were originally) erroneous; then the statute's meaning often evolves against its original expectations." Id. at 49.
In taking a dynamic approach to statutory meaning, pragmatists believe that the meaning of a statute evolves over time. See, e.g., Eskridge, supra note 85, at 50 (describing theory of "pragmatic dynamism"); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 352 (7th Cir. 2017) (Posner, J., concurring) ("[I]nterpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance today."). Other judges, however, including most purposivists and textualists, subscribe to a more static view of statutory meaning, looking instead to the text's original meaning at the time of enactment. See, e.g., Carlos E. Gonzalez, Reinterpreting Statutory Interpretation, 74 N.C. L. Rev. 585, 626 (1996). Although this temporal distinction is an important part of some interpretive theories, this report does not discuss the issue further.
See Manning, Textualism and the Equity of the Statute, supra note 32, at 81. See also United States v. Marshall, 908 F.2d 1312, 1335-36 (7th Cir. 1990) (Posner, J., dissenting) (arguing that an "irrational" statutory sentencing scheme highlights "the disagreement between the severely positivistic view that the content of law is exhausted in clear, explicit, and definite enactments by or under express delegation from legislatures, and the natural lawyer's or legal pragmatist's view that the practice of interpretation and the general terms of the Constitution (such as 'equal protection of the laws') authorize judges to enrich positive law with the moral values and practical concerns of civilized society").
Guido Calabresi, A Common Law for the Age of Statutes 164 (1982).
Id. at 2. Judge Calabresi also pioneered the field of law and economics, later taken up by (among others) Judge Richard Posner. Richard A. Posner, The Economic Approach to Law, 53 Tex. L. Rev. 757, 759 (1975). Law and economics seeks to apply the fundamental insights of economics to analyze law. E.g., Posner, The Problems of Jurisprudence, supra note 49, at 353 ("The basic assumption of economics that guides the . . . economic analysis of law . . . is that people are rational maximizers of their satisfactions . . . ."). Judge Calabresi has argued that unlike the legal realists, who used sociology and psychology to critique law, law and economics entails not merely the application of economic analysis to law but instead envisions a "bilateral relationship" between the disciplines. Guido Calabresi, The Future of Law & Economics: Essays in Reform and Recollection 8-10 (2016).
See, e.g., Richard A. Posner, The Problematics of Moral and Legal Theory 241 (1999) (defining "pragmatic adjudication" to include judges who "always try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (quotation mark omitted)). See also id. (contrasting pragmatic judges with "legal positivist[s]" who believe "that the law is a system of rules laid down by legislatures and merely applied by judges").
Posner, The Problems of Jurisprudence, supra note 49, at 124-25.
Posner, The Problems of Jurisprudence, supra note 49, at 460 ("The essence of interpretive decision making is considering the consequences of alternative decisions."); id. at 462 (arguing that "legal advocates" should emphasize facts and policy and that "judges should at long last abandon . . . formalist adjudication").
There are, of course, a variety of different ways to characterize various approaches to the law. See, e.g., Guido Calabresi, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts, 55 Stan. L. Rev. 2113 (2003) (categorizing schools of law on the basis of whether and how they incorporate nonlegal disciplines).
See supra notes 41 to 47 and accompanying text.
Manning, Without the Pretense of Legislative Intent, supra note 41, at 2413, 2425.
See supra notes 8 to 17 and accompanying text.
Manning, Inside Congress's Mind, supra note 31, at 1912-13. See also, e.g., Hand, supra note 50, at 106 ("[Often, t]he men who used the language did not have any intent at all about the case that has come up; it had not occurred to their minds. Strictly speaking, it is impossible to know what they would have said about it, if it had."); Manning, Without the Pretense of Legislative Intent, supra note 41, at 2406 ("Since Congress is a 'they,' not an 'it,' . . . such intent does not exist as a fact in the world, simply waiting to be found." (quoting Kenneth A. Shepsle, Congress Is a ' They, ' Not an ' It ' : Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239, 239 (1992))).
See, e.g., Manning, Inside Congress's Mind, supra note 31, at 1913-14. Cf. Caleb Nelson, What is Textualism?, 91 Va. L. Rev. 347, 348 (2005) (arguing that both theories use evidence of "the subjective intent of the enacting legislature" to "construct their sense of objective meaning").
E.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 91.
William N. Eskridge, Jr. & Philip P. Frickey, An Historical and Critical Introduction to The Legal Process, in Hart & Sacks, supra note 17, at lx.
See Manning, Without the Pretense of Legislative Intent, supra note 41, at 2413 (describing the concept of institutional settlement pioneered by Hart & Sacks); see also Hart & Sacks, supra note 17, at 4-5 (defining "the principle of institutional settlement" as expressing "the judgment that decisions which are the duly arrived at result of duly established procedures . . . ought to be accepted as binding" and arguing that "the effect to be given" to any particular settlement of a dispute, whether it was decided through a statute or a judicial decision, should be evaluated in light of the procedure that created that settlement).
See Manning, Without the Pretense of Legislative Intent, supra note 41, at 2425-27.
See, e.g., Molot, The Rise and Fall of Textualism, supra note 43, at 26.
Robert A. Katzmann, Judging Statutes 31 (2014). Academics sometimes distinguish between "purpose" and "intent," most frequently using "purpose" to mean the objective intent that is the goal of new purposivism, and "intent" to mean the legislature's actual intent, which was the goal of the old "intentionalism." See, e.g., Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117, 123-24 (2009). However, courts generally use the two words interchangeably, and this report follows suit. See Mikva & Lane, supra note 9, at 107; see, e.g., Liparota v. United States, 471 U.S. 419, 424-25 (1985) (referring both to "congressional intent" and "congressional purpose").
E.g. Hart & Sacks, supra note 17, at 1148.
Katzmann, supra note 104, at 31.
Hart & Sacks, supra note 17, at 1148. See also Breyer, supra note 32, at 854 ("Given this statutory background, what would a reasonable human being intend this specific language to accomplish?" (internal quotation marks omitted)).
Hart & Sacks, supra note 17, at 1125.
See Manning, Without the Pretense of Legislative Intent, supra note 41, at 2425, 2426 (describing purposivism as a belief that "the judiciary respect[s] legislative supremacy by implementing the apparent legislative plan of action," or by "supplying sensible means of carrying out legislative policies that Congress cannot possibly spell out completely in a world of great and ever-changing complexity").
Katzmann, supra note 104, at 4.
Breyer, supra note 32, at 858. As one textbook pithily asks, "Shouldn't it make a normative difference that a statute was enacted by legislators seeking to solve a social problem in the face of disagreement, and not by a drunken mob of legislators with no apparent purpose or who had agreed to adopt any bill chosen by a throw of the dice?" Eskridge et al., supra note 39, at 243.
Katzmann, supra note 104, at 4.
Breyer, supra note 32, at 860 (arguing that if legislators knew courts would not consider the legislative history that legislators considered critical to determining the meaning of a statute, the relevant policymakers "might not have agreed on the legislation").
Katzmann, supra note 104, at 36.
See Hart & Sacks, supra note 17, at 1148.
Manning, What Divides Textualists from Purposivists?, supra note 23, at 91. See also Breyer, supra note 32, at 853-54 ("Sometimes [a court] can simply look to the surrounding language in the statute or to the entire statutory scheme and ask, 'Given this statutory background, what would a reasonable human being intend this specific language to accomplish?' Often this question has only one good answer, but sometimes the surrounding statutory language and the 'reasonable human purpose' test cannot answer the question. In such situations, legislative history may provide a clear and helpful resolution.").
See, e.g., Breyer, supra note 32, at 854; Katzmann, supra note 104, at 35. See also discussion infra "Legislative History."
See Levi, supra note 38, at 501, 504-05. See also Hart & Sacks, supra note 17, at 1119-20, 1378-79; Mikva & Lane, supra note 9, at 111. Cf. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) ("I suggest that the task for the judge called upon to interpret a statute is best described as one of imaginative reconstruction. The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar."). Posner distinguishes his own suggestion from the approach of Hart and Sacks by arguing the judge should attempt to take into account the actual compromises struck. Id. at 819-20.
See, e.g., United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 201-208 (1979) (evaluating legislative history to determine "Congress' primary concern in enacting" the disputed statute and refusing to adopt an interpretation that would "bring about an end completely at variance with the purpose of the statute" (quoting United States v. Public Utils. Comm'n, 345 U.S. 295, 315 (1953)) (internal quotation marks omitted)). See also Breyer, supra note 32, at 864-65 (noting difficulties of ascribing an "intent" to Congress, but concluding that it is possible).
See, e.g., Freeman v. Quicken Loans, Inc., 566 U.S. 624, 632 (2012) (noting that a particular interpretation would undermine the purpose of a statute by imposing liability on "the very class for whose benefit [a particular statute] was enacted," "provid[ing] strong indication that something in [that] interpretation is amiss").
Hart & Sacks, supra note 17, at 1119.
See Breyer, supra note 32, at 847.
See, e.g., Manning, Textualism and Legislative Intent, supra note 16, at 430.
See, e.g., Scalia & Garner, supra note 24, at 20-21, 376-78. But see, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2122 (2016) (reviewing Katzmann, supra note 104) (agreeing with purposivist judge, as textualist, that it is important for judges to understand the legislative process).
Scalia & Garner, supra note 24, at 18.
E.g., George H. Taylor, Structural Textualism, 75 B.U. L. Rev. 321, 327 (1995). See also, e.g., King v. Burwell, 135 S. Ct. 2480, 2489 (2015) ("If the statutory language is plain, we must enforce it according to its terms."); Freeman v. Quicken Loans, Inc., 566 U.S. 624, 637 (2012) ("Vague notions of statutory purpose provide no warrant for expanding [the disputed statutory] prohibition beyond the field to which it is unambiguously limited . . . .").
Chisom v. Roemer, 501 U.S. 380, 405 (1991) (Scalia, J., dissenting).
Scalia, supra note 82, at 17.
E.g. Scalia & Garner, supra note 24, at 33.
Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol'y 59, 65 (1988). Cf. Holmes, supra note 66, at 417-18 ("[W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were.").
See Manning, Without the Pretense of Legislative Intent, supra note 41, at 2426-27.
Manning, Without the Pretense of Legislative Intent, supra note 41, at 2427 (emphasis omitted) (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992)). See also Scalia & Garner, supra note 24, at 39 (arguing legal instruments should not always be construed to make sense because "often," imperfect legal drafting "is the consequence of a compromise that it is not the function of the courts to upset").
Easterbrook, The Role of Original Intent in Statutory Construction, supra note 130, at 60.
See, e.g., Scalia, supra note 82, at 17 ("[I]t is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated."). See also Manning, Textualism and Legislative Intent, supra note 16, at 445 ("[F]or textualists, any attempt to overlay coherence on a statutory text that otherwise seems to have problems of fit unacceptably threatens to undermine the bargaining process that produced it.").
Scalia, supra note 82, at 17-18. See also Molot, The Rise and Fall of Textualism, supra note 43, at 25-26 (examining parallels between textualism and legal realism).
See, e.g., Easterbrook, supra note 130, at 62 ("The use of original intent rather than an objective inquiry into the reasonable import of the language permits a series of moves. Each move greatly increases the discretion, and therefore the power, of the court."); id. at 66 ("To claim to find an answer by 'interpretation'—when the legislature neither gave the answer nor authorized judges to create a common law—is to play games with the meaning of words like 'interpretation.' The process is not interpretation but creation, and to justify the process judges must show that they have been authorized to proceed in the fashion of the common law.").
Manning, What Divides Textualists from Purposivists?, supra note 23, at 91. See also Scalia & Garner, supra note 24, at 33 (endorsing the "fair reading" method of statutory interpretation, which gathers purpose "only from the text itself, consistently with the other aspects of its context," and defining this context to include "textual purpose" along with "(1) a word's historical associations acquired from recurrent patterns of past usage, and (2) a word's immediate syntactic setting—that is, the words that surround it in a specific utterance"). Cf. Frankfurter, supra note 8, at 533 ("And so the bottom problem is: What is below the surface of the words and yet fairly a part of them?").
E.g., Manning, Textualism and Legislative Intent, supra note 16, at 420. But see, e.g., Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent L. Rev. 441, 444 (1990) ("No degree of skepticism concerning the value of legislative history allows us to escape its use. Especially not when we know that laws have no 'spirit,' that they are complex compromises with limits and often with conflicting provisions, the proponents of which have discordant understandings. Legislative history shows the extent of agreement."). For an explanation of when textualists might employ legislative history, see infra "Purposes for Using Legislative History."
Manning, Textualism and Legislative Intent, supra note 16, at 433.
Easterbrook, What Does Legislative History Tell Us?, supra note 138, at 443.
Nelson, supra note 98, at 383.
See, e.g., supra note 85 and accompanying text.
See, e.g., Katzmann, supra note 104, at 47-48.
See, e.g., Katzmann, supra note 104, at 48.
548 U.S. 291 (2006).
Id. at 294.
Id. at 293 (quoting 20 U.S.C. § 1415(i)(3)(B)).
Id. at 294.
Id. at 295 (emphasis added).
See id. at 298.
Id. at 296 (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (internal quotation mark omitted).
Id. at 297 (quoting 20 U.S.C. § 1415(i)(3)(B)).
Id. at 303-04.
See id. at 309 (Breyer, J., dissenting).
Id.
Id. at 312-13.
Id. at 318.
Id. at 319.
Id.
See Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1302 (2018) (describing predominant approach among federal appellate judges as "intentional eclecticism"). See also William N. Eskridge, Jr., & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 321-22 (1990) ("Many commentators argue that judicial interpretation is, or at least ought to be, inspired by grand theory. We think these commentators are wrong, both descriptively and normatively: Judges' approaches to statutory interpretation are generally eclectic, not inspired by any grand theory, and this is a good methodology.").
See Molot, The Rise and Fall of Textualism, supra note 43, at 3 ("Given that nonadherents and adherents of textualism alike place great weight on statutory text and look beyond text to context, it is hard to tell what remains of the textualism-purposivism debate."); Nelson, supra note 98, at 348 ("[J]udges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature. Many textualists do impose more restrictions than the typical intentionalist on the evidence of intent that they are willing to consider, but those restrictions need not reflect any fundamental disagreement about the goals of interpretation."); Lawrence M. Solan, The New Textualists ' New Text, 38 Loy. L.A. L. Rev. 2027, 2028 (2005) ("Gone largely unnoticed in the battles between these camps during the past quarter century is the fact that both sides in the debate agree upon almost everything when it comes to statutory interpretation.").
See, e.g., Katzmann, supra note 104, at 4.
See, e.g., Hart & Sacks, supra note 17, at 1374 (arguing judges should not give the words of a statute either "a meaning they will not bear, or . . . a meaning which would violate any established policy of clear statement"); id. at 1375 (noting words "limit[] the particular meanings that can properly be attributed" to the statute).
See, e.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 84 ("Because speakers use language purposively, textualists recognize that the relevant context for a statutory text includes the mischiefs the authors were addressing.").
NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017). For more discussion of the substance of this case, see CRS Legal Sidebar WSLG1840, Help Wanted: Supreme Court Holds Vacancies Act Prohibits Nominees from Serving as Acting Officers , by [author name scrubbed].
But see SW Gen., Inc., 137 S. Ct. at 948 (Thomas, J., concurring) (arguing application of the statute to authorize this official's acting service would violate the Appointments Clause, U.S. Const. art. II, § 2, cl. 2).
See id. at 938 (majority opinion); id. at 950 (Sotomayor, J., dissenting).
See The Supreme Court 2016 Term: Leading Case: NLRB v. SW General, Inc., 131 Harv. L. Rev. 353, 353 (2017) ("[T]he Court relied on the ordinary meaning of the provision's text over and against arguments from purpose, post-enactment practice, and even a semantic canon.").
SW Gen., Inc., 137 S. Ct. at 935-36 (majority opinion).
Id. at 938-939.
Id. at 938.
Id. at 941-42.
Id. at 942.
Id. at 944.
Id. at 950 (Sotomayor, J., dissenting).
See id. at 950.
Id. at 950-52.
Id. at 953-54.
See id.
See id. at 950.
Compare id. at 938, 942 (majority opinion) (focusing primarily on two "key words" and rejecting "extra-textual evidence"); with id. at 954 (Sotomayor, J., dissenting) (arguing the majority's position "disregards the full text of the [relevant act] and finds no support in its purpose or history.") (emphasis added).
See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304 (2006) (refusing to consider legislative history); id. at 319 (Breyer, J., dissenting) (rejecting literal reading of statute because it is not "inevitable").
See SW Gen., Inc., 137 S. Ct. at 938 (majority opinion); id. at 950 (Sotomayor, J., dissenting).
548 U.S. at 304 ("Under these circumstances, where everything other than the legislative history overwhelmingly suggests that expert fees may not be recovered, the legislative history is simply not enough.").
SW Gen., Inc., 137 S. Ct. at 942 ("The text is clear, so we need not consider this extra-textual evidence.").
See i d. at 953 (Sotomayor, J., dissenting).
See, e.g., Molot, The Rise and Fall of Textualism, supra note 43, at 3-4 (noting differences in types of "context" considered by textualists and purposivists).
In addition to the tools discussed below, courts also rely on judicial precedent; that is, if another case has previously interpreted a particular statutory provision, a judge may afford that prior interpretation some significance. See, e.g., Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 887 (2017) ("Supreme Court precedent and practical consequences . . . stand out as the two most frequently referenced alternate interpretive resources [in Supreme Court opinions decided between 2006 and 2012, other than text or plain meaning]."). However, this process of reasoning is more or less similar to the way courts normally resolve cases. This report focuses on judicial tools specifically used to interpret statutes, and accordingly, does not discuss this use of judicial precedent. Nonetheless, it is important to note that judges sometimes adopt a "super-strong presumption of correctness for statutory precedents," meaning that they will be even more likely to adhere to a prior decision about statutory meaning than they would in any other decisional context. Eskridge, supra note 85, at 253. See, e.g., Ill. Brick Co. v. Illinois, 431 U.S. 720, 737 (1977) ("[C]onsiderations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation.").
See, e.g., S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 547 U.S. 370, 378 (2006).
See, e.g., Scalia & Garner, supra note 24, at 167 (describing the "whole-text canon").
See, e.g., Solan, supra note 161, at 2029.
See generally, e.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 91 (describing distinctions between contextual evidence used by textualists and purposivists).
See Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 930-31 (2016) (discussing instances in which majority and dissenting opinions in Supreme Court cases used "dueling canons" or invoked the same interpretive tools to support competing statutory constructions).
See, e.g., Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court ' s First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 251 (2010) (noting that between January 31, 2006, and June 29, 2009, the majority of Supreme Court Justices "referenced text/plain meaning and Supreme Court precedent more frequently than any of the other interpretive tools").
Scholars sometimes use "plain meaning" to refer to the "literalist" school of statutory interpretation, supra note 50, and use "ordinary meaning" to refer to the concept invoked by modern textualists. See, e.g., Richard H. Fallon, Jr., Three Symmetries between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment within Both, 99 Cornell L. Rev. 685, 687 (2014) ("In so acknowledging [that meaning depends on context], new textualists break with an older 'plain meaning' school, which maintained that the implications of statutory language are often unmistakable to any competent speaker of English, with no need for specialized knowledge about legal history or traditions."). This report does not make this distinction and instead focuses primarily on modern invocations of the concept by courts, which do not generally distinguish the terms in this way. See Stephen C. Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 Colum. Sci. & Tech. L. Rev. 156, 164 (2011).
Stenberg v. Carhart, 530 U.S. 914, 942 (2000) ("When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning.").
Frankfurter, supra note 8, at 536.
Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting).
Smith, 508 U.S. at 228 (majority opinion).
Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 388 (1951).
E.g., FAA v. Cooper, 566 U.S. 284, 291-92 (2012) ("Because Congress did not define 'actual damages,' respondent urges us to rely on the ordinary meaning of the word 'actual' . . . . But . . . 'actual damages' is a legal term of art, and it is a 'cardinal rule of statutory construction' that, when Congress employs a term of art, 'it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken[.]'" (quoting Molzof v. United States, 502 U.S. 301, 307 (1992)) (citation omitted)).
Cf ., e.g., Nix v. Hedden, 149 U.S. 304, 306 (1893) ("There being no evidence that the words 'fruit' and 'vegetables' have acquired any special meaning in trade or commerce, they must receive their ordinary meaning."). Courts may also look to the meaning of a term at the time of the statute's enactment, if there is evidence the meaning has changed over time. See, e.g., MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 228 (1994).
See Solan, supra note 161, at 2054 ("During most of American judicial history, the predominant methodology for discovering ordinary meaning has been introspection. Without fanfare, judges simply rely upon their own sense of how common words are typically used."). See, e.g., FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) ("'Personal' ordinarily refers to individuals [and not to artificial entities]. . . . Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, 'I have something personal to tell you,' we would not assume the CEO was about to discuss company business.").
See Solan, supra note 161, at 2055 ("[T]he biggest change in the search for word meaning in the past twenty years is the . . . attention courts now pay to dictionaries, including using them as authority for ordinary meaning."). Cf. Hart & Sacks, supra note 17, at 1190 ("A dictionary, it is vital to observe, never says what meaning a word must bear in a particular context. . . . An unabridged dictionary is simply an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne, in the judgment of the editors, in the writings of reputable authors.").
See, e.g., Muscarello v. United States, 524 U.S. 125, 128 (1998) (emphasizing first dictionary definition as supplying "the word's primary meaning"). But see James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 514 (2013) (noting many dictionaries use different principles other than frequency of use to order definitions).
See, e.g., MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 227 (1994) (rejecting definition that was not only contained in only one of the dictionaries consulted but also "contradict [ed] one of the meanings contained in virtually all other dictionaries"). See generally Antonin Scalia & Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419 (2013).
Muscarello, 524 U.S. at 129.
Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634 (2012).
Yates v. United States, 135 S. Ct. 1074, 1091 (2015) (Kagan, J., dissenting).
E.g., S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 547 U.S. 370, 376 (2006) ("[T]his ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases.").
E.g., Smith v. United States, 508 U.S. 223, 243 (1993) (Scalia, J., dissenting) ("The normal usage is reflected, for example, in the United States Sentencing Guidelines . . . .").
1 William Blackstone, Commentaries *59 ("Words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use.").
E.g., FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) (Roberts, C.J.) ("When a statute does not define a term, we typically give the phrase its ordinary meaning." (internal quotation marks omitted)); Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (Kennedy, J.) ("In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result."); FDIC v. Meyer, 510 U.S. 471, 476 (1994) (Thomas, J.) ("In the absence of such a [statutory] definition, we construe a statutory term in accordance with its ordinary or natural meaning."); Lawson v. FMR LLC, 134 S. Ct. 1158, 1165 (2014) (Ginsburg, J.) ("In determining the meaning of a statutory provision, we look first to its language, giving the words used their ordinary meaning." (internal quotation marks omitted)); Flores-Figueroa v. United States, 556 U.S. 646, 657 (2009) (Breyer, J.) ("[W]e cannot find indications in statements of [the statute's] purpose or in the practical problems of enforcement sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of the words that [Congress] wrote."); BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (Alito, J.) ("Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning."); Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (Sotomayor, J.) ("As in any statutory construction case, we start, of course, with the statutory text, and proceed from the understanding that unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning." (internal quotation marks, alterations, and citations omitted)); Yates v. United States, 135 S. Ct. 1074, 1091 (2015) (Kagan, J., dissenting) ("When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning."); Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (Gorsuch, J.) (referring to a word's meaning "as a matter of ordinary English").
Green v. Bock Laundry Mach. Co., 490 U.S. 504, 529 (1989) (Scalia, J., concurring). See also id. at 528 ("The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is . . . most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it) . . . ."). Cf. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 232 (1990) (arguing plain language serves "as a second-best coordinating device for multiple decisionmakers attempting to reach some methodological consensus in the face of substantive disagreements among them").
Yates, 135 S. Ct. at 1091 (Kagan, J., dissenting).
See, e.g., Taylor, supra note 126, at 360 ("[S]tructural textualism does not derive meaning simply in a formal manner; it also does not find meaning to be 'plain' in the sense of being immediately obvious. The inquiry demands argument, and meaning requires construction.").
Cf. Lawrence M. Solan, The Language of Judges 98 (1993) ("When we speak of clarity in construing the concepts expressed by statutes, we are not really making statements about the clarity of the concepts themselves. Rather, we are expressing judgments about the goodness of fit between the statutory concept and the thing or event in the world that is the subject of dispute. . . . [For example,] we mean that a truck is such a typical token of the category vehicle that there should be no controversy about the applicability of the statute to the situation at hand.").
Chapman v. Higbee Co., 319 F.3d 825, 835 (6th Cir. 2003) (Suhrheinrich, J., dissenting) (quoting Reed Dickerson, The Interpretation and Application of Statutes 229 (1975)) (internal quotation marks omitted).
Cf. Solan, supra note 216, at 13, 26 (arguing most plain meaning is determined by "what linguists call a generative grammar, the set of internalized rules and principles that permit us, unselfconsciously, to speak and understand language with ease and with great rapidity," and claiming that in determining whether a statute is ambiguous, "the question is whether the meaning of the disputed language is determined fully by our generative grammars, or whether disputed aspects of the meaning are left open as part of the residue of meaning that our internal grammars do not fully determine").
Compare, e.g., United States v. Marshall, 908 F.2d 1312, 1317 (7th Cir. 1990) ("LSD is applied to paper in a solvent; after the solvent evaporates, a tiny quantity of LSD remains. Because the fibers absorb the alcohol, the LSD solidifies inside the paper rather than on it. You cannot pick a grain of LSD off the surface of the paper. Ordinary parlance calls the paper containing tiny crystals of LSD a mixture."); with id. at 1332 (Posner, J., dissenting) ("[A]pparently some gelatin is part of a 'mixture or substance' and some is not. . . . Would the gelatin be a part of the mixture or substance in an LSD case if a defendant sprayed an LSD-alcohol solution into a capsule, but not if a grain of LSD were placed into the capsule with a tweezers? It is not enough to say that 'ordinary usage' precludes including the weight of a heavy glass bottle . . . . The words 'mixture or substance' are ambiguous . . . .").
See Frederick Schauer, The Practice and Problems of Plain Meaning: A Response to Aleinikoff and Shaw, 45 Vand. L. Rev. 715, 738 (1992) ("It is true that judges have historically tended to mask contested social and political choices of interpretation of indeterminate texts in the language of linguistic inexorability."); Solan, supra note 216, at 27 ("[T]he appeal of neutral linguistic principles as justification for a decision will loom especially large when the judge's 'real reasons' for the decision are not ones that are properly articulated in a judicial opinion."); Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 Am. U. L. Rev. 277, 304 (1990) ("The second alternative source of meaning is for the courts to supply their own suppositions and assumptions regarding the will of Congress . . . .").
Frank H. Easterbrook, Statutes ' Domains, 50 U. Chi. L. Rev. 533, 536 (1983).
See Ward Farnsworth et al., Ambiguity about Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. of Legal Analysis 257, 259 (2010); Solan, supra note 161, at 2048 ("[C]ourts find ordinary meaning anywhere they look and judges are not restrained in deciding where they are willing to look.").
See, e.g., Yates v. United States, 135 S. Ct. 1074, 1080 (2015) (plurality opinion) (considering whether a fish is a "tangible object" within the meaning of 18 U.S.C. § 1519).
See, e.g., id. at 1079 ("A fish is no doubt an object that is tangible . . . . But it would cut [18 U.S.C.] § 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects . . . .").
E.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938-39 (2017) (considering disputed terms from statutory subsection individually and then considering them as a whole).
E.g., FCC v. AT&T Inc., 562 U.S. 397, 407-08 (2011) (considering meaning of "personal privacy" in light of its use in a distinct but similar exemption within the same statute); Holder v. Hall, 512 U.S. 874, 883 (1994) (comparing the functioning of two sections within the Voting Rights Act of 1965 that "differ in structure, purpose, and application").
E.g. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717 (1995) (Scalia, J., dissenting) (considering "the sense in which [the disputed statutory term] is used elsewhere in federal legislation and treaty"); United States v. Marshall, 908 F.2d 1312, 1316 (7th Cir. 1990) (considering how similar statutes were applied in other circumstances).
United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). In their book cataloguing the canons of construction, Justice Scalia and Bryan Garner describe this concept as part of the "whole text canon." Scalia & Garner, supra note 24, at 167.
See United Sav. Ass ' n of Tex., 484 U.S. at 371. See also, e.g., Brown v. Gardner, 513 U.S. 115, 118 (1994) (looking to how a term is used in "analogous statutes").
See, e.g., Smith v. United States, 508 U.S. 223, 234 (1993) (concluding that because a distinct statutory subsection contemplated that a firearm might be "used" "as an item of barter or commerce," defendant had "used" a firearm within the meaning of the disputed statutory subsection by trading the gun for drugs).
Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).
E.g. City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 337-38 (1994) ("Our interpretation is confirmed by comparing [the disputed statute] with another statutory exemption in [the same act]. . . . [T]his [other] provision shows that Congress knew how to draft a waste stream exemption . . . when it wanted to." (internal quotation marks omitted)). But cf. Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 416 (2012) ("[T]he mere possibility of clearer phrasing cannot defeat the most natural reading of a statute; if it could (with all due respect to Congress), we would interpret a great many statutes differently than we do.").
Hamdan v. Runsfeld, 548 U.S. 557, 578 (2006).
Smith v. United States, 508 U.S. 223, 226-27 (1993).
Id. at 225 (alteration in original) (quoting 18 U.S.C. § 924(c)(1)).
Id. at 227.
Id. at 225.
Id. at 233.
Id. at 234.
Id. at 235.
Id. at 235-36.
Id. at 235.
Id. (quoting 18 U.S.C. § 924(d)(1)).
Id.
Id. (quoting 18 U.S.C. § 924(d)(3)) (emphasis added).
Id.
E.g., Freeman v. Quicken Loans, Inc., 566 U.S. 624, 632 (2012) (rejecting an interpretation that would undermine the purpose of a statute by imposing liability on "the very class for whose benefit [the statute] was enacted").
E.g. United States v. Turkette, 452 U.S. 576, 589 (1981) (considering statutory declaration of purpose and evaluating "various Titles of the Act" as "the tools through which this goal is to be accomplished").
E.g., Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 887 (noting empirical evidence that the Supreme Court frequently uses practical consequences to interpret statutes). See, e.g., King v. Burwell, 135 S. Ct. 2480, 2491 (2015) (considering meaning of statutory phrase in light of the functioning of the entire Patient Protection and Affordable Care Act); id. at 2494 ("It is implausible that Congress meant the Act to operate in this manner.").
United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).
Compare, e.g., Freeman, 566 U.S. at 637 ("Vague notions of statutory purpose provide no warrant for expanding [a statute's] prohibition beyond the field to which it is unambiguously limited . . . ."), with King, 135 S. Ct. at 2495 ("In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.").
See infra "Practical Consequences."
E.g. Mikva & Lane, supra note 9, at 114 ("Canons of construction are judicially crafted maxims or aphorisms for determining the meaning of statutes. Canons are expressly intended to limit judicial discretion by rooting interpretive decisions in a system of aged and shared principles . . . .").
See, e.g., Nelson, supra note 98, at 383.
Hart & Sacks, supra note 17, at 1191; Scalia & Garner, supra note 24, at 51.
See, e.g., Michael Sinclair, "Only a Sith Thinks Like That": Llewellyn's "Dueling Canons," One to Seven, 50 N.Y.L. Sch. L. Rev. 919, 923 (2005) ("The application of a canon depends on its justification. When the conditions presupposed by a canon do not obtain, then it should not be used. . . . A canon . . . looks more like a formulaic summary of the end result of a process of reasoning, but a process sufficiently commonplace to justify a canonical formula.").
See, e.g., Breyer, supra note 32, at 869-71; Posner, Statutory Interpretation—in the Classroom and in the Courtroom, supra note 118, at 806-07. For more discussion of the theoretical arguments for and against using the canons, see infra "Justifications: Disrepute and Rehabilitation."
See infra "Justifications: Disrepute and Rehabilitation." See also, e.g., Nina Mendelson, Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court ' s First Decade, 117 Mich. L. Rev., at *3-4 (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3117143.
See, e.g., Nelson, supra note 98, at 386 (asking "What Makes Canons Canonical?").
See, e.g., John F. Manning, Legal Realism & the Canons' Revival, 5 Green Bag 2d 283, 288 (2002) (describing why some theorists disfavor the canons).
Scalia & Garner, supra note 24; William N. Eskridge, Jr., Phillip P. Frickey, Elizabeth Garrett, & James J. Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy (5th ed. 2014). The list in the latter casebook builds upon the list given in William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law As Equilibrium, 108 Harv. L. Rev. 26, 97-108 (1994).
Compare, e.g., Scalia & Garner, supra note 24, at 359 (describing as a "false notion" the idea that statutory exemptions should be strictly construed), with Eskridge & Frickey, Law As Equilibrium, supra note 261, at 105 (describing the "narrow interpretation of statutory exemptions" as a canon).
E.g., John F. Manning & Matthew C. Stephenson, Legislation and Regulation: Cases and Materials 202 (2d ed. 2013).
Id. at 204. See also id. at 202 ("These [semantic] canons are generalizations about how the English language is conventionally used and understood . . . . The use of semantic canons can therefore be understood simply as a form of textual analysis.").
Manning, Legal Realism & the Canons' Revival, supra note 260, at 290 ("Because textualists believe in a strong version of legislative supremacy, their skepticism about actual [legislative] intent or purpose has . . . inspired renewed emphasis on the canons of interpretation, particularly the linguistic or syntactic canons of interpretation."); id. at 292 ("[T]extualists deem it essential to foster clear and predictable linguistic and syntactic rules to permit legislators and interpreters to decode enacted texts.").
E.g., Kavanaugh, supra note 124, at 2159-60 ("Semantic canons are generally designed to reflect the meaning that people, including Members of Congress, ordinarily intend to communicate with their choice of words."). But see Adam Schlusselberg & Michael Sinclair, ' Only a Sith Thinks Like That ' : Llewellyn ' s ' Dueling Canons ' , Twenty-Five to Twenty Eight 36 (Sept. 24, 2010) (N.Y. Law Sch. Research Paper Series 10/11 #3), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1682164 (questioning whether it is "productive to call the rules of grammar 'canons of construction.'").
E.g., Manning & Stephenson, supra note 263, at 204-05.
E.g., Scalia & Garner, supra note 24, at 69. Cf. Mikva & Lane, supra note 9, at 114 ("The authors do not, as some do, define the plain meaning rule as a canon of construction. This is based on our view that the plain meaning rule is the constitutionally compelled starting place for any statutory construction and that tools of interpretation are only applicable when, for whatever reason, the plain meaning rule fails to provide the answer."). Judges also disagree about whether the plain meaning rule is a special and superior canon. Compare, e.g., State v. Peters, 665 N.W.2d 171, 177-78 (Wis. 2003) (Abrahamson, C.J., concurring) (arguing plain meaning rule, as well as rules saying courts may use dictionaries and that statutory definitions must control, are all canons, and arguing that all canons representing "'[i]ntrinsic aids' to construction . . . are essential to any application of the plain meaning rule"), with Metro One Telecomms., Inc. v. Comm'r, 704 F.3d 1057, 1063 (9th Cir. 2012) ("[W]here the plain meaning rule has provided a clear answer, we do not need to look to other canons of statutory construction.").
Barnhart v. Thomas, 540 U.S. 20, 26 (2003). See also Lockhart v. United States, 136 S. Ct. 958, 963 (2016) ("The rule reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that modifier only to the item directly before it. That is particularly true where it takes more than a little mental energy to process the individual entries in the list, making it a heavy lift to carry the modifier across them all.").
Barnhart, 540 U.S. at 27.
See Scalia & Garner, supra note 24, at 144-45 (discussing Barnhart and the Court's hypothetical).
See Scalia & Garner, supra note 24, at 145.
18 U.S.C. § 2252(a)(4).
Lockhart, 136 S. Ct. at 962 (quoting 18 U.S.C. § 2252(b)(2)).
Id. (quoting 18 U.S.C. § 2252(b)(2)).
Id. at 963 (quoting 18 U.S.C. § 2252(b)(2)).
Id. at 970 (Kagan, J., dissenting) (quoting Black's Law Dictionary 1574 (10th ed. 2014)) (internal quotation marks omitted).
Id. (citing Scalia & Garner, supra note 24, at 147).
Id. at 969-70. Cf. id. at 970 ("When the nouns in a list are so disparate that the modifying clause does not make sense when applied to them all, then the last-antecedent rule takes over. Suppose your friend told you not that she wants to meet 'an actor, director, or producer involved with Star Wars,' [in which case the modifier would apply to the entire list] but instead that she hopes someday to meet 'a President, Supreme Court Justice, or actor involved with Star Wars.' Presumably, you would know that she wants to meet a President or Justice even if that person has no connection to the famed film franchise.").
Id. at 971.
Id. at 963 (majority opinion).
Id.
See Scalia & Garner, supra note 24, at 174. This canon is also sometimes referred to as the "canon against superfluity." See, e.g., Microsoft Corp. v. i4i Ltd. P'ship, 564 U.S. 91, 106 (2011).
See Duncan v. Walker, 533 U.S. 167, 174 (2001).
See, e.g., Colautti v. Franklin, 439 U.S. 379, 392 (1979) ("Appellants' argument . . . would make either the first or the second condition redundant or largely superfluous, in violation of the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative."). See also, e.g., Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (plurality opinion) (declining to read statute so as to "significantly overlap" with a distinct statute, resisting a reading that would "render superfluous an entire provision passed in proximity as part of the same Act").
See, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2369 (2016).
Bailey v. United States, 516 U.S. 137, 138-39 (1995) (quoting 18 U.S.C. § 924(c)(1)) (internal quotation mark omitted).
Id. at 145.
Id. at 146.
See Microsoft Corp. v. i4i Ltd. P'ship, 564 U.S. 91, 106 (2011) (noting that "no interpretation" of the relevant statute "avoids excess language"); id. at 107 ("'There are times when Congress enacts provisions that are superfluous,' and the kind of excess language [at issue] . . . is hardly unusual in comparison to other [similar] statutes . . . ." (quoting Corley v. United States, 556 U.S. 303, 325 (2009) (Alito, J., dissenting))); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 721 (1995) (Scalia, J., dissenting) (questioning proposition that words should not be deprived of independent meaning, "especially as applied to long lawyers' listings"); Moskal v. United States, 498 U.S. 103, 120 (1990) (Scalia, J., dissenting) (arguing surplusage canon should not apply because "iteration is obviously afoot in the relevant passage").
See Kavanaugh, supra note 124, at 2161-62 ("[H]umans speak redundantly all the time, and it turns out that Congress may do so as well. Congress might do so inadvertently. Or Congress might do so intentionally in order to, in Shakespeare's words, make 'double sure.'" (citations omitted)); see, e.g., Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 344 (7th Cir. 2017) ("Congress may certainly choose to use both a belt and suspenders to achieve its objectives . . . .").
Manning & Stephenson, supra note 263, at 202.
See, e.g., Hart & Sacks, supra note 17, at 1376; Manning, Textualism and the Equity of the Statute, supra note 32, at 121-22. Cf. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 595 n.4 (1992) (distinguishing between "presumptions of interpretation," "clear statement rules," and "super-strong clear statement rules" (internal quotation marks omitted)); see also Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991) (clarifying that a particular "interpretative presumption"—that Congress is generally presumed to incorporate consistent common law principles into legislation—is not "one that entails a requirement of clear statement").
Solan, supra note 216, at 65.
See Solan, supra note 216, at 65 (stating substantive canons "stack the deck in favor of one party and against another"); People v. Hall, 884 N.W.2d 561, 565 (Mich. 2016) (referring to "'preferential or dice-loading' rules of statutory interpretation" (quoting Koontz v. Ameritech Servs., 645 N.W.2d 34, 42 (Mich. 2002))); Scalia, supra note 82, at 27 (referring to "rules of construction that load the dice for or against a particular result").
See, e.g., Eskridge et al., supra note 39, at 342.
See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("Another rule of statutory construction, however, is pertinent here: where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. This cardinal principle . . . has for so long been applied by this Court that it is beyond debate." (citation omitted)).
See, e.g., Eskridge et al., supra note 39, at 362-67 (discussing arguments for and against using the canon).
Crowell v. Benson, 285 U.S. 22, 62 (1932) ("When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."). This canon is distinct from other variations on the principle of constitutional avoidance, including the "rule of judicial procedure" stating that "'if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction . . . , the Court will decide only the latter.'" See Scalia & Garner, supra note 24, at 251 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). See also United States v. Resendiz-Ponce, 549 U.S. 102, 104 (2007) (resolving case on procedural grounds because resolution of constitutional question was not "absolutely necessary to a decision" (quoting Ashwander, 297 U.S. at 347)). The procedural rule tells a court when to decide a statutory question (i.e., before the constitutional question); the canon tells a judge how to interpret the statute. Manning & Stephenson, supra note 263, at 250. This report uses the term to refer to the canon, although there is room for disagreement regarding how to classify various aspects of the constitutional avoidance doctrine. For more information on the doctrine, see CRS Report R43706, The Doctrine of Constitutional Avoidance: A Legal Overview , by [author name scrubbed].
See, e.g., Gomez v. United States, 490 U.S. 858, 863-64 (1989) (noting that "read literally," disputed statute would allow federal magistrate to take on "any assignment that is not explicitly prohibited," and instead adopting an alternative interpretation—that the additional duties must be related to statutorily specified duties of the office).
Id. at 864.
Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012). A court might cite the constitutional-avoidance canon as support for its conclusion that a particular reading of a statute is the best interpretation, but in that instance, the canon likely is not bearing any analytical weight. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 270 (1998) (Scalia, J., dissenting) ("The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one—the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. . . . Rather, the doctrine of constitutional doubt comes into play when the statute is 'susceptible of' the problem-avoiding interpretation—when that interpretation is reasonable, though not necessarily the best." (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909))).
134 S. Ct. 2077, 2085 (2014) (quoting 18 U.S.C. 229(a)(1) (quotation mark omitted)).
Id. at 2090.
Id.
Id. at 2088.
Id. at 2093.
Crowell v. Benson, 285 U.S. 22, 62 (1932). See also Eric S. Fish, Constitutional Avoidance as Interpretation and as Remedy, 114 Mich. L. Rev. 1275, 1285 (2016) (distinguishing "tiebreaking avoidance," in which the canon may be used to choose one of two similarly plausible interpretations, from "rewriting avoidance," in which the canon may be used "to select a less-accurate interpretation").
Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018).
Compare, e.g., Muscarello v. United States, 524 U.S. 125, 138-39 (1998) (concluding statute is not sufficiently ambiguous to make the rule of lenity applicable), with id. at 148-49 (Ginsburg, J., dissenting) (arguing rule of lenity should apply to resolve statutory ambiguity).
Crowell, 285 U.S. at 62. Cf. Brown v. Plata, 563 U.S. 493, 526 (2011) (concluding reading is "permissible" because the alternative interpretation "would raise serious constitutional concerns"); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) ("It is well understood that when there are two reasonable constructions for a statute, yet one raises a constitutional question, the Court should prefer the interpretation which avoids the constitutional issue."). Some judges have argued that the constitutional-avoidance canon should be used sparingly, if at all. See, e.g., United States v. Marshall, 908 F.2d 1312, 1335-36 (7th Cir. 1990) (Posner, J., dissenting) ("Courts often do interpretive handsprings to avoid having even to decide a constitutional question. In doing so they expand, very questionably in my view, the effective scope of the Constitution, creating a constitutional penumbra in which statutes wither, shrink, are deformed. A better case for flexible interpretation is presented when the alternative is to nullify Congress's action: when in other words there is not merely a constitutional question about, but a constitutional barrier to, the statute when interpreted literally." (citation omitted)).
Anthony Vitarelli, Comment, Constitutional Avoidance Step Zero, 119 Yale L.J. 837, 841-42 (2010).
Scalia & Garner, supra note 24, at 250. Compare, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (determining constitutional-avoidance canon supports reading mens rea requirement into statute because statute would otherwise "raise serious constitutional doubts"), with id. at 83 (Scalia, J., dissenting) (arguing statute does not raise serious constitutional doubts).
See, e.g., Eskridge et al., supra note 39, at 342 ("The substantive canons of interpretation . . . are even more controversial, because they are rooted in broader policy or value judgments.").
See, e.g., Manning & Stephenson, supra note 263, at 248 (discussing possible justifications for the canons of construction).
See, e.g., Manning, Textualism and the Equity of the Statute, supra note 32, at 125; Nelson, supra note 98, at 393-94.
Compare, e.g., Beecham v. United States, 511 U.S. 368, 374 (1994) ("Because the statutory language is unambiguous, the rule of lenity, which petitioners urge us to employ here, is inapplicable."), with Liparota v. United States, 471 U.S. 419, 427-28 (1985) ("Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored interpretive guideline when the congressional purpose is unclear. In the instant case, the rule directly supports petitioner's contention that the Government must prove knowledge of illegality to convict him . . . ."). See also, e.g., United States v. Monsanto, 491 U.S. 600, 611 (1989) (noting the canons "are quite often useful in close cases, or when statutory language is ambiguous," but declining to use them where "the language is clear and the statute comprehensive").
See supra note 310.
E.g., supra notes 256 and 257.
E.g. Mikva & Lane, supra note 9, at 115 ("The use of canons of construction for the interpretation of statutes has been held in scholarly ill repute for over a century."). Cf. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, supra note 118, at 805 ("[I]t has been many years since any legal scholar had a good word to say about any but one or two of the canons, but scholarly opinion . . . has had little impact on the writing of judicial opinions, where the canons seem to be flourishing as vigorously as ever.").
Llewellyn, supra note 71, at 401. Cf. Frankfurter, supra note 8, at 544 ("[C]anons of construction . . . give an air of abstract intellectual compulsion to what is in fact a delicate judgment . . . ."); id. at 544-45 (arguing canons are valid only insofar as they are flexible "axioms of experience" that judges may revisit and adapt through application).
Llewellyn, supra note 71, at 401. See also SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 353 (1943) ("Some authority is cited and a great array could be assembled to support the general proposition that penal statutes must be strictly construed. An almost equally impressive collection can be made of decisions holding that remedial statutes should be liberally construed. What, then, shall we say of the construction of a [statute] like this which may be the basis of either civil proceedings of a preventive or remedial nature or of punitive proceedings, or perhaps both?").
Llewellyn, supra note 71, at 403.
Posner, Statutory Interpretation—in the Classroom and in the Courtroom, supra note 118, at 806.
See, e.g., Scalia, supra note 82, at 26-27 (identifying two examples of "faux canons"). Cf. Michael Sinclair, "Only a Sith Thinks Like That": Llewellyn's "Dueling Canons," Pairs Thirteen to Sixteen, 53 N.Y.L. Sch. L. Rev. 953, 985 (2008/09) (questioning the provenance of Llewellyn's formulation of the canons).
See Scalia, supra note 82, at 27; Schlusselberg & Sinclair, supra note 266, at 38. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 264, 280 (1994) (noting "apparent tension" between two canons and resolving the conflict). Cf. Solan, supra note 216, at 31 (suggesting some canons embody two "types of devices," reflecting the way English speakers generally understand language: "[1] interpretive strategies that function to ease the rapid processing of language as it is heard or read, but which can be overridden if their application leads to nonsensical or ungrammatical interpretations of sentences, and [2] rules of grammar, which make certain interpretations impossible," and questioning whether judges apply the canons consistently with linguistic theory).
E.g., Scalia & Garner, supra note 24, at xxvii ("Nothing but conventions and contexts cause a symbol or sound to convey a particular idea."); id. at xxviii ("We seek to restore sound interpretive conventions."). See also Nelson, supra note 98, at 377, 383 (arguing textualists prefer the canons to legislative history because of their more rule-like nature); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 663 (1990) ("The new textualists . . . seek a revival of canons that rest upon precepts of grammar and logic, proceduralism, and federalism. The Court's opinions in the last two Terms reflect this revival urged by the new textualists.").
Nelson, supra note 98, at 383. Nelson prefers these categories to the traditional distinction between semantic and substantive canons. See id. at 394 n.140. Cf. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 454 (1989) (noting canons "have served different functions" and distinguishing widely shared and uncontroversial "invisible norms" from "background norms" that "more visibly serve substantive or institutional goals," but recognizing that "the distinction . . . is imprecise").
Nelson, supra note 98, at 383.
Nelson, supra note 98, at 383.
Nelson, supra note 98, at 383-84 ("It requires little argument to link canons of this sort to the likely intent of the enacting legislature. Their usefulness in identifying authors' intent is precisely why the principles underlying these canons are widely used in society at large.").
Nelson, supra note 98, at 384.
Nelson, supra note 98, at 384.
See Nelson, supra note 98, at 390 ("Many of the canons used by textualists reflect observations about Congress's own habits."). Some of these insights, however, may be incorrect, as discussed in more detail infra, "Studies of Legislative Drafting." See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 907 (2013) (showing empirically that legislative drafters in Congress do not use certain canons).
See Scalia, supra note 82, at 29 ("The rule of lenity is almost as old as the common law itself, so I suppose that is validated by sheer antiquity."). See also, e.g., United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) ("The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.").
See, e.g., Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?, 45 Vand. L. Rev. 561, 563 (1992) ("[N]ormative canons are principles . . . that . . . direct courts to construe any ambiguity in a particular way in order to further some policy objective."). See also William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. Pa. L. Rev. 1007, 1018 (1989) (arguing interpreters should explicitly incorporate "rational background understandings," or "underlying public values" into application of the canons of construction); Sunstein, supra note 328, at 413 (arguing some substantive canons can and should "be supported through an understanding of the ways in which they incorporate constitutional principles, promote deliberation in government, and respond to New Deal reforms of the legal system").
See, e.g., Posner, Statutory Interpretation—in the Classroom and in the Courtroom, supra note 118, at 807 ("A . . . line of defense is that even if the canons do not make very good sense, it is better that the judges should feel constrained by some interpretive rules than free to roam at large in a forest of difficult interpretive questions . . . .").
See, e.g., Nelson, supra note 98, at 391 ("[C]anons and presumptions can . . . take advantage of . . . relative predictability. . . . [S]ome specialized canons help courts discern Congress's likely intent . . . simply because members of Congress know that the courts use them. That knowledge . . . enables members of Congress to convey their intended meaning in a way that the courts will understand."). See also Eskridge & Frickey, Law As Equilibrium, supra note 261, at 67 ("[T]he canons may be understood as conventions, similar to driving a car on the right-hand side of the road; often it is not as important to choose the best convention as it is to choose one convention, and stick to it.").
Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999, 1021 (2015); see also, e.g., Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 261 (2010) (noting that consistent application of presumption against extraterritoriality creates "a stable background against which Congress can legislate with predictable effects"). But see Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do, 84 U. Chi. L. Rev. 177, 179 (2017) (arguing that the system-coordinating justification for a formalist approach employing the canons is untenable). See also Hart & Sacks, supra note 17, at 1376 (suggesting "policies of clear statement" may "promote objectives of the legal system which transcend the wishes of any particular session of the legislature").
See, e.g., William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831, 843 (2001). But see, e.g., Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism?, 73 U. Colo. L. Rev. 1401, 1405 (2002) (arguing the canon of constitutional avoidance is "wholly illegitimate" because it "acts as a roving commission to rewrite statutes to taste").
See, e.g., Manning & Stephenson, supra note 263, at 260-61. Others argue that even if the constitutional-avoidance canon does not advance legislative supremacy, it may be useful to protect constitutional values, by allowing courts to impose narrowing constructions on constitutionally dubious statutes. See Eskridge et al., supra note 39, at 365.
See, e.g., Yates v. United States, 354 U.S. 298, 319 (1957) ("[W]e should not assume that Congress chose to disregard a constitutional danger zone so clearly marked.").
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
Scalia & Garner, supra note 24, at 249.
See, e.g., Katzmann, supra note 104, at 52 ("[W]iping out legislative history, in the face of empirical evidence that Congress views it as essential in understanding its meaning, leaves us largely with a canon-based interpretive regime that may not only fail to reflect the reality of the legislative process, but may also undermine the constitutional understanding that Congress's statutemaking should be respected as a democratic principle."). See also Breyer, supra note 32, at 870 (arguing legislative history is more accessible than the canons to give notice of statutory meaning).
See, e.g., Hart & Sacks, supra note 17, at 1191 ("Of course there are pairs of maxims susceptible of being invoked for opposing conclusions. Once it is understood that meaning depends on context, and that contexts vary, how could it be otherwise?").
Scalia, supra note 82, at 27 ("Every canon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons), it must yield."). See, e.g., Rice v. Rehner, 463 U.S. 713, 732 (1983) ("[W]e have consistently refused to apply . . . a canon of construction when application would be tantamount to a formalistic disregard of congressional intent. . . . In the present case, congressional intent is clear from the face of the statute and its legislative history.").
Hart & Sacks, supra note 17, at 1191.
See, e.g., District of Columbia v. Thompson, 593 A.2d 621, 631 (D.C. 1991) ("[T]he venerable canon that would have us strictly construe a statute against altering the common law creates 'a rebuttable presumption.'" (quoting Monroe v. Foreman, 540 A.2d 736, 739 (D.C. 1988))). See also, e.g., Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 83 (2017) (noting that "every canon implicitly begins or ends with the statement 'unless the context indicates otherwise'").
See, e.g., Lockhart v. United States, 136 S. Ct. 958, 963 (2016) (arguing rule of last antecedent applies and "is not overcome by other indicia of meaning"); id. at 970 (Kagan, J., dissenting) (arguing statutory context shows rule of last antecedent does not apply to the disputed provision).
Sinclair, supra note 256, at 992. See also Varity Corp. v. Howe, 516 U.S. 489, 511 (1996) ("To apply a canon properly one must understand its rationale.").
See, e.g., FAA v. Cooper, 566 U.S. 284, 305 (2012) (Sotomayor, J., dissenting) (declining to rely on certain canon where "traditional tools of statutory construction—the statute's text, structure, drafting history, and purpose—provide a clear answer"); Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589-90 (2008) ("[W]e have never held that [a particular canon] displaces the other traditional tools of statutory construction. . . . In this case, traditional tools of statutory construction and considerations of stare decisis compel [a certain] conclusion . . . . There is no need for us to resort to the . . . canon because there is no ambiguity left for us to construe."); Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) ("I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not—and especially if a good reason for the ordinary meaning appears plain—we apply that ordinary meaning.").
See, e.g., Fallon, Three Symmetries, supra note 194 at 691 (describing Justice Thomas as "a recognized textualist").
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992).
Id. Two concurring opinions in that case argued that the Court should have also considered the statute's legislative history, id. at 255 (Stevens, J., concurring), and should have acknowledged that this interpretation did violate the canon against surplusage and explained why the canon did not control, id. at 256 (O'Connor, J., concurring).
NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 511 (1979) (Brennan, J., dissenting).
Id. at 511-15.
See, e.g., Grand Trunk W. R.R. Co. v. U.S. Dep't of Labor, 875 F.3d 821, 825 (2017) (concluding statutory context overcomes presumption of "so-called Russello structural canon"—that "'[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion'" (alteration in original) (quoting Russello v. United States, 464 U.S. 16, 23 (1983))).
See, e.g., Mitchell v. Cohen, 333 U.S. 411, 418 (1948). See also CRS Report R41865, Legislative History Research: A Guide to Resources for Congressional Staff, by [author name scrubbed].
Eskridge et al., supra note 39, at 303. This report addresses only pre-enactment legislative history, and does not discuss the even more contentious category of post-enactment legislative history. See, e.g., Eskridge et al., supra note 39, at 316 (discussing "subsequent legislative history," or congressional statements and actions related to a law after its enactment, such as when Congress rejects amendments to a law). The report addresses separately other post-enactment interpretive tools infra "Statutory Implementation." See also Hart & Sacks, supra note 17, at 1255-70 (reviewing "post-enactment aids to interpretation," including popular construction, administrative construction, judicial construction, and legislative silence or acquiescence).
See, e.g., Scalia & Garner, supra note 24, at 12 (arguing this case's reading of the statute "def[ies] the text"); Eskridge & Frickey, Statutory Interpretation as Practical Reasoning, supra note 160, at 336 (arguing this case was decided "by romanticizing the legislative process and subordinating other purposes of Title VII").
United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 201 (1979).
Id. at 201 (quoting 42 U.S.C. § 2000-e(2)(a), (d)).
Id.
Id.
Id. at 202-07.
Id. at 204. See also id. at 207 ("Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action.").
Id. at 208.
Id. at 204.
Id. at 209.
E.g., Manning & Stephenson, supra note 263, at 127. See also id. at 127-28 (outlining historical trends in use of legislative history in U.S. courts, beginning with a rule of general exclusion, swinging towards general inclusion around 1940, and describing the new backlash against its use beginning in the 1980s).
See Weber, 443 U.S. at 201-02. See also, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457, 464-65 (1892). Cf., e.g., Kavanaugh, supra note 124, at 2127 (distinguishing use of legislative history to resolve textual ambiguities from use of legislative history "to override the clear text when following the text would contradict Congress's apparent intent").
See, e.g., Milner v. Dep't of the Navy, 562 U.S. 562, 572 (2011) ("Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language."). See also, e.g., Hart & Sacks, supra note 17, at 1379 ("Effect should not be given to evidence from the internal legislative history if the result would be to contradict a purpose otherwise indicated . . . .").
See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508-09 (1989) ("We begin by considering the extent to which the text of [the disputed provision] answers the question before us. Concluding that the text is ambiguous with respect to [that question], we then seek guidance from legislative history . . . .").
Compare, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304 (2006) (disregarding legislative history where statutory text was unambiguous), with id. at 323 (Breyer, J., dissenting) (arguing statutory text was ambiguous and turning to legislative history). Judge Brett Kavanaugh has argued that "the indeterminacy of the trigger"—that is, determining when the text is ambiguous— "greatly exacerbates the problems with the use of legislative history." Kavanaugh, supra note 124, at 2149.
See, e.g., Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U.S. 229, 236 n.3 (2010) ("Although reliance on legislative history is unnecessary in light of the statute's unambiguous language, we note the support that record provides for the Government's reading."). But see, e.g., Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 783-84 (2018) (Thomas, J., concurring) (arguing majority opinion should not have relied on committee report "to discuss the supposed 'purpose' of the statute").
See, e.g., Breyer, supra note 32, at 848.
See, e.g., Pierce v. Underwood, 487 U.S. 552, 563-64 (1988) (relying on "a Committee Report prepared at the time of the original enactment of" the disputed statute to define the phrase "substantially justified," as used in the disputed statute to describe a party's litigating position). See also, e.g., Scalia & Garner, supra note 24, at 388 ("[F]or the purpose of establishing linguistic usage—showing that a particular word or phrase is capable of bearing a particular meaning—it is no more forbidden (though no more persuasive) to quote a statement from the floor debate on the statute in question than it is to quote the Wall Street Journal or the Oxford English Dictionary.").
See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring) (arguing that it is "entirely appropriate to consult all public materials, including the background of [the disputed provision] and the legislative history of its adoption, to verify that what seems to us an unthinkable disposition . . . was indeed unthought of, and thus to justify a departure from the ordinary meaning [of the disputed term]"). See also, e.g., Scalia & Garner, supra note 24, at 388 ("[L]egislative history can be consulted to refute attempted application of the absurdity doctrine—to establish that it is indeed thinkable that a particular word or phrase should mean precisely what it says."). Similarly, courts may—in rare cases—use legislative history to determine that Congress made a mistake. See, e.g., U.S. Nat'l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 462 (1993) ("In these unusual cases, we are convinced that the placement of the quotation marks in the 1916 Act was a simple scrivener's error, a mistake made by someone unfamiliar with the law's object and design.").
See Easterbrook, What Does Legislative History Tell Us?, supra note 138, at 443.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143-56 (2000).
Id. at 143.
Id. at 142.
See, e.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 84, 90.
Breyer, supra note 32, at 848.
E.g., Katzmann, supra note 104, at 31 ("[L]egislation is the product of a deliberative and informed process. Statutes in this conception have purposes or objectives that are discernible. The task of the judge is to make sense of legislation in a way that is faithful to Congress's purposes.").
E.g., Katzmann, supra note 104, at 29.
E.g., Breyer, supra note 32, at 858-60.
E.g., Katzmann, supra note 104, at 4 ("Our constitutional system charges Congress, the people's branch of representatives, with enacting laws. So, how Congress makes its purposes known, through text and reliable accompanying materials constituting legislative history, should be respected, lest the integrity of legislation be undermined."). See generally Manning, Legal Realism & the Canons' Revival, supra note 260, at 288-89 ("Legislative history [in the view of purposivists] . . . might serve the same function as the canons (eliminating ambiguity), but with the distinct advantage of having a more democratic pedigree."). This justification for using legislative history appeals beyond purposivists to at least some pragmatists. See, e.g., Eskridge et al., supra note 39, at 239.
See, e.g., Nelson, supra note 98, at 361.
Scalia & Garner, supra note 24, at 375. See also Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) ("The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators."). This concern rests on the "intent skepticism" shared by both textualists and purposivists. Manning, Inside Congress's Mind, supra note 31, at 1912-13.
Manning, What Divides Textualists from Purposivists?, supra note 23, at 73.
Kavanaugh, supra note 124, at 2149. See also, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942 (2017) ("What Congress ultimately agrees on is the text that it enacts, not the preferences expressed by certain legislators."); City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 337 (1994) ("[I]t is the statute, and not the Committee Report, which is the authoritative expression of the law . . . ."); Lawson v. FMR LLC, 134 S. Ct. 1158, 1176-77 (2014) (Scalia, J., concurring) (arguing against using legislative history to discover congressional intent because "we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended").
See, e.g., Manning & Stephenson, supra note 263, at 151-53.
See, e.g., Manning & Stephenson, supra note 263, at 158.
E.g., Scalia & Garner, supra note 24, at 376.
See, e.g., Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 620-21 (1991) (Scalia, J., concurring).
See, e.g., Scalia & Garner, supra note 24, at 376-77. See also, e.g., Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001) ("We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal . . . .").
Kavanaugh, supra note 124, at 2149. See also, e.g., Conroy v. Aniskoff, 507 U.S. 511, 519-20 (1993) (Scalia, J., concurring) (arguing legislative history is indeterminate).
Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983).
See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). Cf. Katzmann, supra note 104, at 46 (noting that in response to textualist critiques of legislative history, judges "tend to give it more of a supporting rather than a leading role in statutory interpretation"); Gluck & Posner, supra note 160, at 1326 (noting that none of the judges in their survey use legislative history "indiscriminately").
See, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942-43 (2017).
See, e.g., Wyeth v. Levine, 555 U.S. 555, 566-68 (2009) (looking to legislative history to determine whether Congress intended to overcome presumption embodied in substantive canon); Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 658-59 (2006) (looking to legislative history, including drafting history and committee reports, to determine the purpose of the disputed provision, and reviewing this purpose in light of the statutory context).
See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395-96 (1951) (Jackson, J., concurring) ("Resort to legislative history is only justified where the face of the Act is inescapably ambiguous, and then I think we should not go beyond Committee reports, which presumably are well considered and carefully prepared. . . . [T]o select casual statements from floor debates, not always distinguished for candor or accuracy, as a basis for making up our minds what law Congress intended to enact is to substitute ourselves for the Congress in one of its important functions.").
Eskridge et al., supra note 39, at 317. See also Katzmann, supra note 104, at 54 (arguing "conference committee reports and committee reports" should be considered most authoritative, "followed by statements of the bill's managers in the Congressional Record, with stray statements of legislators on the floor—who had heretofore not been involved in consideration of the bill—at the bottom"); Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70, 78 (2012) (arguing courts must view legislative history with a better understanding of congressional procedures).
Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor, J., concurring). See also George A. Costello, Average Voting Members and Other " Benign Fictions " : The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 Duke L.J. 39, 43 (1990) (noting committee reports are "ordinarily . . . considered the most reliable and persuasive element of legislative history" by the Supreme Court).
Zuber v. Allen, 396 U.S. 168, 186 (1969) ("A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect at best the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report in this instance.").
See, e.g., United States v. Brown, 333 U.S. 18, 25 (1948) (concluding amendment of disputed provision "was intended . . . to broaden the Act's coverage or to assure its broad coverage").
See supra note 360 and accompanying text.
Stone v. INS, 514 U.S. 386, 397 (1995). See also, e.g., Ross v. Blake, 136 S. Ct. 1850, 1857-58 (2016) (concluding mandatory nature of disputed provision was affirmed by its history, where it replaced a weaker precursor).
See, e.g., Pierce Cty. v. Guillen, 537 U.S. 129, 145 (2003) (concluding substantive canon should not apply because the reading effectuating that canon "would render the 1995 amendment to [the disputed provision] . . . an exercise in futility").
See, e.g., Nixon v. Mo. Mun. League, 541 U.S. 125, 132-33 (2004) ("[C]oncentration on the writing on the page does not produce a persuasive answer here. . . . [I]n this litigation it helps if we ask how Congress could have envisioned the preemption clause actually working if the FCC applied it at the municipal respondents' urging.").
See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 389 (1951) (rejecting interpretation under which "the exception swallows the proviso and destroys its practical effectiveness").
See supra notes 87 to 92 and accompanying text (discussing dynamic theories of interpretation).
Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073, 1107 (1992). This finding was confirmed in more recent empirical studies of Supreme Court cases. See Krishnakumar, Statutory Interpretation in the Roberts Court ' s First Era, supra note 194, at 225-26 (suggesting there are two camps of Justices that use practical consequences in distinct ways); Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 887 (noting empirical evidence that the Supreme Court frequently uses practical consequences to interpret statutes).
See, e.g., FCC v. Am. Broad. Co., 347 U.S. 284, 294-95 (1954).
See, e.g., id.; S.D. Warren Co. v. Me. Bd. of Envtl Prot., 547 U.S. 370, 377 (2006) (citing the EPA's Water Quality Standards Handbook). Cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 65-66 (2006) (considering potentially contradictory statements of EEOC).
See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144-46 (2000). Cf., e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 90-91 (2007) (noting Congress adopted language originally drafted by the Secretary of Education without amendment or comment, and viewing this as evidence Congress did not intend to disturb the agency's interpretation of the relevant language).
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984). For more on Chevron deference, see CRS Report R44954, Chevron Deference: A Primer , by [author name scrubbed] and [author name scrubbed].
See Chevron, 467 U.S. at 842-43.
See id. at 844.
See, e.g., S.D. Warren Co., 547 U.S. at 377-78 (considering agency's interpretation as evidence of statutory term's meaning even though the particular "expressions of agency understanding do not command deference").
E.g., id. at 378 ("[T]he administrative usage of 'discharge' in this way confirms our understanding of the everyday sense of the term."); Hart & Sacks, supra note 17, at 1270 ("Such action, manifestly, is especially cogent evidence that the words of the statute would bear the meaning which the action necessarily attributed to them.").
See Hart & Sacks, supra note 17, at 1270.
See Hart & Sacks, supra note 17, at 1269.
See Hart & Sacks, supra note 17, at 1270. See also, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 953-54 (2017) (Sotomayor, J., dissenting) (considering as evidence the practices of executive branch prior to and following the enactment of the disputed statutory text). Cf. Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 793 (2011) (noting the "common practice" of "parties operating under the act").
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44, 865 (1984).
See, e.g., SW Gen., Inc., 137 S. Ct at 943 (majority opinion) (rejecting as insubstantial evidence of executive branch's "post-enactment practice" under statute); Freeman v. Quicken Loans, Inc., 566 U.S. 624, 629-30 (2012) (noting that an agency had authority to interpret statute but rejecting its interpretation as "manifestly inconsistent with the statute [that the agency] purported to construe").
See, e.g., Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 886-87 (noting that Justices Scalia and Thomas referenced practical consequences in a number of their opinions). For more in-depth discussions of how Justice Scalia employed practical consequences, see Jane S. Schacter, Text or Consequences?, 76 Brooklyn L. Rev. 1007, 1012-13 (2011) (discussing Justice Scalia's opinions in Rapanos v. United States, 547 U.S. 715, 722 (2006) (plurality opinion), and Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or ., 515 U.S. 687, 717 (1995) (Scalia, J., dissenting)); Miranda McGowan, Do as I Do, Not as I Say: An Empirical Investigation of Justice Scalia ' s Ordinary Meaning Method of Statutory Interpretation, 78 Miss. L.J. 129, 173 (2008) ("Justice Scalia considers purpose as often as the rest of the Court."). See also, e.g., Artis v. District of Columbia, 138 S. Ct. 594, 612 (2018) (Gorsuch, J., dissenting) (pointing out "some examples of the absurdities that follow" from the majority's reading).
See, e.g., King v. Burwell, 135 S. Ct. 2480, 2490 (2015). Courts sometimes describe this as seeking to avoid absurd results. See, e.g., Clinton v. City of New York, 524 U.S. 417, 429 (1998) ("Acceptance of the Government's new-found reading of [the disputed statute] 'would produce an absurd and unjust result which Congress could not have intended.'") (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982)); see generally John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003) ("Despite the absurdity doctrine's deep roots, recent intellectual and judicial developments have undermined the doctrine's strong intentionalist foundations.").
See, e.g., Robers v. United States, 134 S. Ct. 1854, 1858 (2014).
See, e.g., Rapanos, 547 U.S. at 722. Cf. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001) ("Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.").
King, 135 S. Ct. at 2495.
Id. at 2487 (quoting 26 U.S.C. § 36B(b)-(c)).
Id.
Id. at 2490.
Id. at 2492.
Id. at 2493.
Id.
Id. at 2494.
Id. at 2496 (Scalia, J., dissenting) (internal quotation marks omitted).
Id. at 2497.
Id. at 2506.
Id. at 2495-96 (majority opinion) (quoting Palmer v. Massachusetts, 308 U.S. 79, 83 (1939)).
Id. at 2496. See also id. ("Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.").
Id.
See id.
See, e.g., Zeppos, supra note 415, at 1108 (arguing empirical studies likely "undercount the role such consequentialist concerns play in the Court's decisionmaking process" because "practical considerations are masked by the invocation of more formal sources of authority").
See supra notes 292 to 294 and accompanying text.
See, e.g., Breyer, supra note 32, at 869.
Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 892.
See supra "Major Theories of Statutory Interpretation."
See, e.g., John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 115 (2011) (noting that on the Supreme Court, even "nontextualist Justices have increasingly embraced text over purpose when the two conflict"). See also, e.g., Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017) ("[W]e begin, as we must, with a careful examination of the statutory text."); Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) ("Statutory interpretation, as we always say, begins with the text . . . ."); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1755 (2014) ("Our analysis begins and ends with the text of [the disputed statute] . . . . This text is patently clear.").
See, e.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 91. Cf. Frankfurter, supra note 8, at 533 ("And so the bottom problem is: What is below the surface of the words and yet fairly a part of them?").
See, e.g., Manning, Legal Realism & the Canons' Revival, supra note 260, at 285.
See supra "Purposivism."
See, e.g., Hart & Sacks, supra note 17, at 1211.
See, e.g., Breyer, supra note 32, at 870 ("Why are court-produced canons of interpretation more useful than the legislative history produced by the interest groups, executive departments, experts, legislators, staff members, and others directly involved in the legislative process?"); Katzmann, supra note 104, at 52 ("[W]iping out legislative history, in the face of empirical evidence that Congress views it as essential in understanding its meaning, leaves us largely with a canon-based interpretive regime that may not only fail to reflect the reality of the legislative process, but may also undermine the constitutional understanding that Congress's statutemaking should be respected as a democratic principle. Certainly, it is safe to assume that most legislators do not know that canons even exist . . . .").
Robert A. Katzmann, Response t o Judge Kavanaugh ' s Review o f Judging Statutes, 129 Harv. L. Rev. F. 388, 398 (2016).
See supra "Textualism."
Manning, Legal Realism & the Canons' Revival, supra note 260, at 285.
Scalia & Garner, supra note 24, at 31.
See, e.g., Frank H. Easterbrook, Foreword to Scalia & Garner, supra note 24, at xxii-xxiv. Some pragmatists similarly support canons as a constraining system of background norms, see Eskridge & Frickey, Law As Equilibrium, supra note 261, at 66-67, arguably because pragmatists share textualists' skepticism of legislative intent, see Manning, Legal Realism & the Canons' Revival, supra note 260, at 294.
See, e.g., Manning, The New Purposivism, supra note 453, at 146-47 ("In recent years, only two Members of the Court—Justices Stevens and Breyer—have endorsed Holy Trinity's premise that expressions of intent or purpose culled from the legislative history can trump the statutory text. At the same time, however, at most two others—Justice Scalia and perhaps Justice Thomas—have subscribed fully to the implications of the new textualism, professing opposition to the use of legislative history even to resolve ambiguity or confirm statutory meaning. The balance of the Court seems to consist of textually constrained purposivists (or, what may be the same thing, purpose-sensitive textualists).").
Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 891.
Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 891-92.
Mendelson, supra note 258, at 17, 25-26. This study also tracked the Justices' use of legislative history, and this data "will be the basis for future analyses." Id. at 23.
Krishnakumar, Reconsidering Substantive Canons, supra note 188, at 891.
See Mendelson, supra note 258, at 26.
See Gluck & Posner, supra note 160, at 1309-10.
See Gluck & Posner, supra note 160, at 1310-11.
See Gluck & Posner, supra note 160, at 1324.
See Gluck & Posner, supra note 160, at 1328.
See Gluck & Posner, supra note 160, at 1328.
See supra note 202 and accompanying text.
See, e.g., Solan, supra note 161, at 2048 ("When a court decides to base its decision on the ordinary meaning of a statutory term, how does it decide what the ordinary meaning is? The answer, somewhat to the embarrassment of the American legal system, is that courts find ordinary meaning anywhere they look and judges are not restrained in deciding where they are willing to look.").
See supra notes 203 to 208 and accompanying text. See also Stephen C. Mouritsen, Comment, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. L. Rev. 1915, 1915, 1919 (2010) (noting the "reverence" our society, judges included, affords dictionaries, and arguing instead for the use of corpus linguistics to "examin[e] questions of ordinary meaning").
See Solan, supra note 161, at 2053.
See Solan, supra note 161, at 2056.
See Scalia & Garner, supra note 205, at 422.
See Stefan Gries & Brian G. Slocum, Ordinary Meaning and Corpus Linguistics, 2018 B.Y.U. L. Rev., at *21 (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3053146; Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788, 828 (2018). See also Neal Goldfarb, A Lawyer ' s Introduction to Meaning in the Framework of Corpus Linguistics, 2018 B.Y.U. L. Rev., at *3, 14 (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2907485 (noting that corpus linguistics can help lawyers and judges determine statutory meaning by illuminating a word's meaning in particular contexts).
Mouritsen, Hard Cases and Hard Data, supra note 194, at 159.
Mouritsen, Hard Cases and Hard Data, supra note 194, at 162.
Muscarello v. United States, 524 U.S. 125, 129 (1998).
Id. at 126-27.
Id. at 129.
See id. at 128-30. But see Mouritsen, The Dictionary Is Not a Fortress, supra note 477, at 1947 (arguing the majority opinion's "question-begging" search of these databases was "fatally flawed").
See Mouritsen, Hard Cases and Hard Data, supra note 194, at 194. Another example is Google's Ngram Viewer, which searches Google's store of scanned books for particular phrases, showing how frequently they have been used over time. Google Books NGram Viewer, https://books.google.com/ngrams (last visited March 14, 2018); see also Marziah Karch, How to Use 'NGram Viewer' Tool in Google Books, Lifewire (March 15, 2018), https://www.lifewire.com/google-books-ngram-viewer-1616701.
562 U.S. 397 (2011).
See Mouritsen, Hard Cases and Hard Data, supra note 194, at 158.
People v. Harris, 885 N.W.2d 832, 838 (Mich. 2016).
Id. at 837.
Id. at 839.
See, e.g., State v. Rasabout, 356 P.3d 1258, 1265 (Utah 2015) (rejecting a concurring opinion's use of corpus linguistics research by arguing that a court should not "decid[e the] case on the basis of an argument not subjected to adversarial briefing," and arguing that "it would be entirely inappropriate for this court to conduct the independent scientific research that serves as the basis for" the approach of the concurrence); John D. Ramer, Note, Corpus Linguistics: Misfire or More Ammo for the Ordinary Meaning Canon?, 116 Mich. L. Rev. 303, 317 (2017) (arguing dissenting opinion in Harris, 885 N.W.2d at 850 n.14 (Markman, J., dissenting), "used the COCA more effectively").
Carissa Byrne Hessick, Corpus Linguistics and the Criminal Law, 2018 B.Y.U. L. Rev., at *3 (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3031987.
E.g., id. at *7.
Id. at *6, 11.
See Lawrence M. Solan & Tammy Gales, Corpus Linguistics as a Tool in Legal Interpretation, 2018 B.Y.U. L. Rev., at *4 (forthcoming 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3047150 ("The blue pitta is a bird found in Asia, but not North America. It is no less a bird and we are no less comfortable calling it a bird just because it does not appear in corpora of American English." (citation omitted)); Sarah Zhang, The Pitfalls of Using Google NGram to Study Language, Wired (Oct. 12, 2015, 7:00 AM), https://www.wired.com/2015/10/pitfalls-of-studying-language-with-google-ngram/ (pointing out some possible shortcomings of Google NGram Viewer, including scanning errors and an "overabundance of scientific literature").
See Gries & Slocum, supra note 481, at *22. Cf. Solan & Gales, supra note 498, at *2 (noting judges must "decide, . . . as a legal matter, what makes an interpretation 'ordinary'").
See, e.g., Gluck & Bressman, supra note 334, at 905. See also Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U.L. Rev. 575, 577 (2002) ("[W]e believe that the judicial story of the legislative process deserves closer scrutiny.").
See supra text accompanying notes 94 to 95.
See supra notes 331 and 334 and accompanying text.
See supra notes 385 to 389 and accompanying text.
Gluck & Bressman, supra note 334, at 905.
Gluck & Bressman, supra note 334, at 919-20. The staffers were from a number of House and Senate committees as well as the Offices of the House and Senate Legislative Counsel. Id . at 920-21. In a second article, Gluck and Bressman "highlight[ed] the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of legislative drafting." See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I I, 66 Stan. L. Rev. 725, 728 (2014).
Gluck & Bressman, supra note 334, at 920.
Gluck & Bressman, supra note 334, at 949.
Gluck & Bressman, supra note 334, at 947-48.
Gluck & Bressman, supra note 334, at 934. However, this study called it the "rule against superfluities." Id.
Gluck & Bressman, supra note 334, at 934.
Gluck & Bressman, supra note 334, at 965.
Gluck & Bressman, supra note 334, at 967.
Gluck & Bressman, supra note 334, at 967.
Gluck & Bressman, supra note 334, at 977; supra Figure 1.
See, e.g., Jarrod Shobe, Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting, 114 Colum. L. Rev. 807, 810-11, 837, 863-65 (2014).
See Gluck & Bressman, supra note 334, at 922-23 (noting limitations in survey sample); 1020-21 (noting possibility that collective or outside knowledge may impact drafting process).
See supra note 124 and accompanying text; but see , e.g., Gluck, supra note 339, at 196 (arguing concerns about judicial competence are "overblown").
See, e.g., Manning, What Divides Textualists from Purposivists?, supra note 23, at 91.
See Hart & Sacks, supra note 17, at 1148.
See Easterbrook, The Role of Original Intent in Statutory Construction, supra note 130, at 65; Manning, Textualism and the Equity of the Statute, supra note 32, at 109; Scalia, supra note 82, at 17.
See supra note 97 and accompanying text.
See, e.g., Hessick, supra note 495, at *4 ("Courts do not usually treat ordinary meaning as an empirical question."); id. at *11 (arguing against the frequency analysis involved in consulting corpus linguistics); Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2194 (2017) (noting that the process-based arguments from this new data "do not require textualists . . . to abandon" dictionaries or canons, because textualists "do not use canons and dictionaries in an effort to track the linguistic patterns of the governors; they use them because they reflect the linguistic patterns of the governed"). See generally Baude & Sachs, supra note 33, at 1096 (arguing that "one of the most important functions of a legal system" is "to replace real answers with fake ones" because "people persistently disagree on the real answers, and the legal system helpfully offers fake answers instead—answers that hopefully are somewhat close to the real ones, but on which society (mostly) agrees and which allow us (mostly) to get along").
See Gluck & Bressman, supra note 334, at 915; Nourse & Schacter, supra note 500, at 577 ("We recognize that the judicial story of lawmaking may be based on fictions rather than actual judicial beliefs about the legislative process. Perhaps in portraying legislators as they do, judges mean to show respect for Congress, to bring greater coherence to the law, or to pursue some other prudential end. If these portrayals are fictions, however, they are not necessarily 'benign.'" (quoting Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring))).
See supra notes 484 to 493 and accompanying text.
See Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor, J., concurring); Schwartz v. Concordia Int'l Corp., 255 F. Supp. 3d 380, 390 n.11 (E.D.N.Y. 2017); Navajo Health Found. v. Burwell, 220 F. Supp. 3d 1190, 1227-28 (D.N.M. 2016).
See Yates v. United States, 135 S. Ct. 1074, 1096 (2015) (Kagan, J., dissenting); Loving v. IRS, 742 F.3d 1013, 1019 (D.C. Cir. 2014).
Kavanaugh, supra note 124, at 2159-60. Cf. U.S. Telecom Ass'n v. FCC, 855 F.3d 381, 422 (D.C. Cir. 2017) (Kavanaugh, J., dissenting) (arguing for application of "major rules doctrine," citing Gluck & Bressman, supra note 334, at 1003-04, as support).
Cf. Gluck, supra note 339, at 191 (suggesting that "mounting judicial interest in what Congress actually does" may "signal" a new "intellectual development in the field": "the post-'textualism vs purposivism' era"); id. at 203-10 (suggesting a number of new interpretive rules focused on legislative process).
See, e.g., Manning, Inside Congress's Mind, supra note 31, at 1932-33 (2015) (noting importance to textualists of creating stable background rules against which Congress may legislate). See also, e.g., Project on Statutory Construction Promotes Inter-Branch Communications, U.S. Courts (Sept. 10, 2015), http://www.uscourts.gov/news/2015/09/10/project-statutory-construction-promotes-inter-branch-communications (discussing project through which federal appellate courts send Congress "opinions that note possible technical problems in statutes," using them as "teaching tools" for legislative drafters).
See, e.g., Shobe, supra note 515, at 832 ("[W]hat congressional drafters, both partisan and nonpartisan, generally focus on is clarity and consistency above compliance with any particular canon or judicial doctrine."); see also id. ("[M]any times . . . courts do not apply interpretive rules consistently enough to provide sufficient guidance to drafters, so it is unsurprising that drafters generally focus on clarity rather than drafting in a way that adheres to particular judicial doctrines." (citations omitted)).
See, e.g., Katzmann, supra note 104, at 92-93.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012); William N. Eskridge, Jr., Phillip P. Frickey, Elizabeth Garrett, & James J. Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy (5th ed. 2014).
Compare, e.g., Scalia & Garner, supra note 532, at 359 (describing as a "false notion" the idea that statutory exemptions should be strictly construed), with William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law As Equilibrium, 108 Harv. L. Rev. 26, 105 (1994) (describing as statute-based canon the "narrow interpretation of statutory exemptions").
Bryan Garner is a law professor and a well-known expert on legal writing and grammar; among other accomplishments, he is the current editor-in-chief of Black's Law Dictionary. E.g., Bryan Garner, SMU Dedman School of Law, https://www.law.smu.edu/professor-profiles/garner (last visited Feb. 16, 2018).
Scalia & Garner, supra note 532, at 9.
Eskridge et al., supra note 532, at 1195. This list is built upon a preliminary compilation created by Eskridge and Frickey in 1994. See Eskridge & Frickey supra note 533, at 97. Professor Eskridge has acknowledged that this list does not include "all possible canons." William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 536 n.31 (2013) (reviewing Scalia & Garner, supra note 532).
For example, the Eskridge & Frickey list contained a number of different canons relating to federal preemption of state law, which this list provides for with the general presumption against such preemption. See Eskridge et al., supra note 532, at 1205-07; infra note 613 and accompanying text.
See, e.g., Eskridge et al., supra note 532, at 1212-15 (discussing canons applicable to statutes governing a wide variety of specific issue areas). For example, this appendix excludes a canon of patent law that creates a presumption that "abstract ideas and laws of nature are not patentable." Id. at 1214.
See, e.g., Eskridge et al., supra note 532, at 1199-1200 (discussing "canons" that apply when courts review agency interpretations of statutes). See also Scalia & Garner, supra note 532, at 53 (outlining the "interpretation principle" that "[e]very application of a text to particular circumstances entails interpretation").
For example, the Eskridge casebook describes a "[s]uper-strong rule against congressional interference with President's inherent powers, his executive authority." Eskridge et al., supra note 532, at 1204. Arguably, the cases cited in support of this rule do establish such a principle, but do not describe this rule as a presumption about how to generally read statutes. See, e.g., Dep't of the Navy v. Egan, 484 U.S. 518, 530 (1988). Cf. Morrison v. Olson, 487 U.S. 654, 682 (1988) (invoking canon of constitutional avoidance to narrowly construe statute to avoid infringing President's removal powers).
See discussion supra, "Justifications: Disrepute and Rehabilitation." See also Scalia & Garner, supra note 532, at 59 (outlining the "principle of interrelating canons," stating that "[n]o canon of interpretation is absolute").
Both lists from which this appendix is drawn do draw further distinctions, but such groupings require more discussion and justification than would arguably be helpful here.
Scalia & Garner, supra note 532, at 273 (emphasis added).
Scalia & Garner, supra note 532, at 273. See also Eskridge et al., supra note 532, at 1196 (noting Dictionary Act, 1 U.S.C. § 1, supplies default statutory definitions). See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768 (2014) (adopting Dictionary Act's definition of "person" to conclude corporations were covered by disputed statute); Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780 (2000) (applying the "longstanding interpretive presumption that 'person' does not include the sovereign").
Scalia & Garner, supra note 532, at 93; State v. I.C.S., 145 So. 3d 350, 355 (La. 2014) ("We recognize the canon casus omissus pro omisso habendus est, which means that a case omitted is to be held as intentionally omitted."). See also, e.g., Ebert v. Poston, 266 U.S. 548, 554 (1925) ("A casus omissus does not justify judicial legislation. This Act is so carefully drawn as to leave little room for conjecture." (citation omitted)). Cf. Eskridge et al., supra note 532, at 1198 ("Avoid the implication of broad congressional delegation of agency authority when statute carefully limits agency authority in particular matters.").
Scalia & Garner, supra note 532, at 116 (emphasis added).
Scalia & Garner, supra note 532, at 116. See also Eskridge et al., supra note 532, at 1197. See, e.g., City of Rome v. United States, 446 U.S. 156, 172 (1980) ("By describing the elements of discriminatory purpose and effect in the conjunctive [by using "and"], Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent."); United States v. Woods, 134 S. Ct. 557, 567 (2013) ("[T]he operative terms are connected by the conjunction 'or.' . . . [That term's] ordinary use is almost always disjunctive, that is, the words it connects are to 'be given separate meanings.'" (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979))). But cf. Scalia & Garner, supra note 532, at 116-25 (discussing nuances introduced by the use of "negatives, plurals, and various specific wordings").
Gooch v. United States, 297 U.S. 124, 128 (1936). Accord Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586 (2008) ("Under that rule [of ejusdem generis], when a 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."). See also Scalia & Garner, supra note 532, at 199; Eskridge et al., supra note 532, at 1195.
Scalia & Garner, supra note 532, at 107. See also Eskridge et al., supra note 532, at 1195. S ee , e.g., Lindh v. Murphy, 521 U.S. 320, 330 (1997) (describing "negative implications raised by disparate provisions").
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting United States v. Vonn, 535 U.S. 55, 65 (2002)).
Scalia & Garner, supra note 532, at 129 (emphasis added).
Scalia & Garner, supra note 532, at 129. See also Eskridge et al., supra note 532, at 1196 (noting Dictionary Act, 1 U.S.C. § 1, supplies default statutory definitions). See, e.g., United States v. Hayes, 555 U.S. 415, 432 (2009) (Roberts, C.J., dissenting) (arguing singular statutory term should be read to encompass the plural, by reference to the Dictionary Act and semantic context).
Scalia & Garner, supra note 532, at 183 (emphasis added).
Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17, 21 (2012). See also Eskridge et al., supra note 532, at 1199 ("Specific provisions targeting a particular issue apply instead of provisions more generally covering the issue."); Scalia & Garner, supra note 532, at 183 ("If there is a conflict between a general provision and a specific provision, the specific provision prevails (generalia specialibus non derogant).").
Brown v. Gen. Servs. Admin., 425 U.S. 820, 834 (1976). See also Eskridge et al., supra note 532, at 1210.
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976). But as the authors point out in Reading Law, it can be "difficult to determine whether a provision is a general or a specific one." Scalia & Garner, supra note 532, at 187-88 (discussing Radzanower).
Scalia & Garner, supra note 532, at 101 (emphasis added).
Scalia & Garner, supra note 532, at 101. See, e.g., Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002) (giving unqualified statutory term broad meaning). See also Arizona v. Tohono O'odham Nation, 818 F.3d 549, 557 (9th Cir. 2016) ("[A] word or phrase is not ambiguous just because it has a broad general meaning under the generalia verba sunt generaliter intelligenda canon of statutory construction.").
Eskridge et al., supra note 532, at 1197. See also Scalia & Garner, supra note 532, at 140. See, e.g., Carr v. United States, 560 U.S. 438, 448 (2010) ("Consistent with normal usage, we have frequently looked to Congress' choice of verb tense to ascertain a statute's temporal reach.").
Scalia & Garner, supra note 532, at 180 (emphasis added).
Scalia & Garner, supra note 532, at 180. See also Eskridge et al., supra note 532, at 1198 ("Avoid interpreting a provision in a way that is inconsistent with the overall structure of the statute or with another provision or with a subsequent amendment to the statute or with another statute enacted by a Congress relying on a particular interpretation." (citations omitted)). See, e.g., Lindh v. Murphy, 521 U.S. 320, 336 (1997) (favoring reading that "accords more coherence" to the disputed statutory provisions).
Scalia & Garner, supra note 532, at 189 (emphasis added).
Scalia & Garner, supra note 532, at 189.
The authors of Reading Law disagree with the use of legislative history to discover statutory purpose and describe the idea "that committee reports and floor speeches are worthwhile aids in statutory construction" as a "false notion." Scalia & Garner, supra note 532, at 367.
Milner v. Dep't of the Navy, 562 U.S. 562, 572 (2011). See also Eskridge et al., supra note 532, at 1202 ("Consider legislative history (the internal evolution of a statute before enactment) if the statute is ambiguous.").
Garcia v. United States, 469 U.S. 70, 76 (1984). See also Eskridge et al., supra note 532, at 1202 ("Committee reports (especially conference committee reports reflecting the understanding of both House and Senate) are the most authoritative legislative history, but cannot trump a textual plain meaning, and should not be relied on if they are themselves ambiguous or imprecise." (citations omitted)); id. at 1203 ("Committee report language that cannot be tied to a specific statutory provision cannot be credited. House and Senate reports inconsistent with one another should be discounted." (citations omitted)).
See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 580 n.10 (2006). See also Eskridge et al., supra note 532, at 1203.
Se e, e.g., Garcia, 469 U.S. at 76 ("We have eschewed reliance on the passing comments of one Member, and casual statements from the floor debates." (citation omitted)). See also Eskridge et al., supra note 532, at 1203. Cf. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599 (2004) ("Even from a sponsor, a single outlying statement cannot stand against a tide of context and history, not to mention 30 years of judicial interpretation producing no apparent legislative qualms.").
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980) (quoting United States v. Price, 361 U.S. 304, 313 (1960)). See also Eskridge et al., supra note 532, at 1203.
Scalia & Garner, supra note 532, at 112 (emphasis added).
Scalia & Garner, supra note 532, at 112; Eskridge et al., supra note 532, at 1197. See, e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977 (2016) ("Unlike the word 'may,' which implies discretion, the word 'shall' usually connotes a requirement."). But see, e.g., Scalia & Garner, supra note 532, at 113-14 (noting controversy over whether "shall" is mandatory). Scalia and Garner describe the first half of this canon as "mandatory words impose a duty," without specifically naming "shall" in the rule itself. Scalia & Garner, supra note 532, at 112.
Scalia & Garner, supra note 532, at 152 (emphasis added).
Scalia & Garner, supra note 532, at 152. See, e.g., Ray v. McCullough Payne & Haan, L.L.C., 838 F.3d 1107, 1111 (11th Cir. 2016).
Scalia & Garner, supra note 532, at 195. See also Eskridge et al., supra note 532, at 1195. See, e.g., United States v. Williams, 553 U.S. 285, 294 (2008) ("[T]he commonsense canon of noscitur a sociis . . . counsels that a word is given more precise content by the neighboring words with which it is associated."); Beecham v. United States, 511 U.S. 368, 371 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well."). Cf. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 379-80 (2006) ("[N]oscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate.").
Scalia & Garner, supra note 532, at 69. See also Eskridge et al., supra note 532, at 1196. See, e.g., Perrin. v. United States, 444 U.S. 37, 42 (1979) ("A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning."). See also Scalia & Garner, supra note 532, at 78 ("Words must be given the meaning they had when the text was adopted"); Perrin, 444 U.S. at 42 ("[W]e look to the ordinary meaning of the term . . . at the time Congress enacted the statute . . . .").
Eskridge et al., supra note 532, at 1196. See also Scalia & Garner, supra note 532, at 225. See, e.g., Nat'l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1328 (Fed. Cir. 2004) (noting that although "in some instances there may be ambiguity" regarding whether the statute covered a single rail container, there was no ambiguity in that case, given that "Congress has defined 'vehicle' with sufficient breadth to include an individual rail car").
Scalia & Garner, supra note 532, at 69. See also Eskridge et al., supra note 532, at 1196. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 576 (1995) (holding statutory word "is a term of art").
Eskridge et al., supra note 532, at 1195 (citations omitted). See also Scalia & Garner, supra note 532, at 56 ("supremacy-of-text principle"); id. at 234 (absurdity doctrine). See, e.g., Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there."); Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454 (1989) ("Where the literal reading of a statutory term would 'compel an odd result,' we must search for other evidence of congressional intent to lend the term its proper scope." (quoting Green v. Bock Laundry Machine Co., 490 U.S. 504, 509 (1989))); U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993) ("[W]e are convinced that the placement of the quotation marks in the 1916 Act was a simple scrivener's error, a mistake made by someone unfamiliar with the law's object and design. . . . The true meaning of the 1916 Act is clear beyond question, and so we repunctuate.").
Scalia & Garner, supra note 532, at 192 (emphasis added).
Luis v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (alteration in original) (quoting Scalia & Garner, supra note 532, at 192). See also, e.g., State ex rel. Brown v. Klein, 22 S.W. 693, 695 (Mo. 1893) ("[W]henever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied. Quando lex aliquid concedit concedere videtur et id, per quod devenitur ad illud.").
Scalia & Garner, supra note 532, at 217 (emphasis added).
Scalia & Garner, supra note 532, at 221 (emphasis added).
Scalia & Garner, supra note 532, at 217, 221. See also Eskridge et al., supra note 532, at 1197. See, e.g., S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 547 U.S. 370, 385 (2006) (relying on congressional declarations of policy); Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) ("'[T]he title of a statute and the heading of a section' are 'tools available for the resolution of a doubt' about the meaning of a statute." (quoting Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529 (1947))).
See, e.g., Yates v. Untied States, 135 S. Ct. 1074, 1090 (2015) (Alito, J., concurring) ("Titles, of course, are . . . not dispositive."); Bhd. of R.R. Trainmen, 331 U.S. at 528 ("[H]eadings and titles are not meant to take the place of the detailed provisions of the text.").
Robers v. United States, 134 S. Ct. 1854, 1857 (2014) (quoting Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006)) (internal quotation marks omitted). See also Eskridge et al., supra note 532, at 1198 ("presumption of statutory consistency"); Scalia & Garner, supra note 532, at 170 ("presumption of consistent usage").
Scalia & Garner, supra note 532, at 170. See also Eskridge et al., supra note 532, at 1198 ("presumption of meaningful variation"). See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983) ("[Where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (alteration in original) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (internal quotation marks omitted)).
Scalia & Garner, supra note 532, at 132 (emphasis added).
Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941). See also Scalia & Garner, supra note 532, at 132 ("The verb to include introduces examples, not an exclusive list.").
Scalia & Garner, supra note 532, at 66 (emphasis added).
Scalia & Garner, supra note 532, at 66. See, e.g., Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 534 (1885) (discussing approvingly United States v. Cornell, 25 F. Cas. 646, 649 (D.R.I. 1819) (No. 14,867)). This principle overlaps with the canon of constitutional avoidance. See infra note 610 and accompanying text; see, e.g., Virginia v. Black, 538 U.S. 343, 378 (2003) (Scalia, J., dissenting) ("[A]pplying the maxim 'ut res magis valeat quam pereat' we would do precisely the opposite of what the plurality does here—that is, we would adopt the alternative reading that renders the statute constitutional rather than unconstitutional.") (emphasis omitted).
See Clark v. Barnard, 108 U.S. 436, 461 (1883) ("It is admitted, that if it does not mean this, it does not mean anything, and we have already said that we are not at liberty to adopt that alternative. We must construe it, ut res magis valeat quam pereat . . . ."). See also, e.g., Election Cases, 65 Pa. 20, 31 (1870) (concluding that the legislature could not have intended to require something impossible, and therefore construing it not to require that).
Scalia & Garner, supra note 532, at 154 (emphasis added).
Scalia & Garner, supra note 532, at 154. See, e.g., Pennington v. United States, 48 Ct. Cl. 408, 411, 413 (1913) (rejecting argument that proviso was "a separate and independent statute" and holding instead that, according to the general rule, it modified only "the enacting clause to which [it was] attached").
Eskridge et al., supra note 532, at 1196. See, e.g., U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 454 (1993) ("[T]he meaning of a statute will typically heed the commands of its punctuation.").
Scalia & Garner, supra note 532, at 161. See, e.g., Jama v. ICE, 543 U.S. 335, 344 (2005) ("Each clause is distinct and ends with a period, strongly suggesting that each may be understood completely . . . .").
Eskridge et al., supra note 532, at 1210. The casebook also describes a number of subject-area-specific descriptions of purpose as canons; those are excluded from this appendix. See, e.g., id. at 1212 ("Sherman Act should be applied in light of its overall purpose of benefitting consumers."). Cf. Scalia & Garner, supra note 532, at 63 ("A textually permissible interpretation that furthers rather than obstructs the document's purpose should be favored."); see, e.g., Philadelphia v. Ridge Ave. Passenger R.R. Co., 102 Pa. 190, 196 (1883) ("[T]his purpose and object of the statute, [under the proposed construction,] would be defeated; the absurdity of such a construction is therefore apparent.").
Sandberg v. McDonald, 248 U.S. 185, 204 (1918). See also Scalia & Garner, supra note 532, at 214 ("Distributive phrasing applies each expression to its appropriate referent . . . .").
Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955)) (internal quotation marks omitted).
Young v. UPS, 135 S. Ct. 1338, 1352 (2015) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)) (internal quotation mark omitted). See also Eskridge et al., supra note 532, at 1197 ("Presumption against redundancy: avoid interpreting a provision in a way that would render other provisions of the statute superfluous or unnecessary."); Scalia & Garner, supra note 532, at 174 ("If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.").
Barnhart v. Thomas, 540 U.S. 20, 26 (2003). See also Eskridge et al., supra note 532, at 1197; Scalia & Garner, supra note 532, at 144 (defining rule as applicable to "a pronoun, relative pronoun, or demonstrative adjective" because "strictly speaking, only pronouns have antecedents").
Scalia & Garner, supra note 532, at 156 (emphasis added).
Scalia & Garner, supra note 532, at 156. See, e.g., Jama v. ICE, 543 U.S. 335, 344 (2005) ("Each clause is distinct and ends with a period, strongly suggesting that each may be understood completely without reading any further.").
Lockhart v. United States, 136 S. Ct. 958, 970 (2016) (Kagan, J., dissenting) (quoting Scalia & Garner, supra note 532, at 147) (internal quotation marks omitted). Scalia and Garner describe this canon as applicable to either prepositive or postpositive modifiers. Scalia & Garner, supra note 532, at 147. See also, e.g., Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920) ("When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all."); United States v. Laraneta, 700 F.3d 983, 989 (7th Cir. 2012) ("[T]he 'series-qualifier' canon . . . provides that a modifier at the beginning or end of a series of terms modifies all the terms.").
Scalia & Garner, supra note 532, at 126 (emphasis added).
Scalia & Garner, supra note 532, at 126 (quoted in part in NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017)). See, e.g., Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) ("[T]he use of such a 'notwithstanding' clause clearly signals the drafter's intention that the provisions of the 'notwithstanding' section override conflicting provisions of any other section."); see also Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 200 L. Ed. 2d 183, 194 (2018) (stating that a notwithstanding clause indicates that a certain provision "operates as an exception" to other provisions). Courts have recognized that the breadth of a "notwithstanding" clause may be influenced by context. See, e.g., SW Gen., 137 S. Ct. at 940; Or. Nat. Res. Council v. Thomas, 92 F.3d 792, 796-97 (9th Cir. 1996).
Scalia & Garner, supra note 532, at 134 (emphasis added).
State v. Partlow, 91 N.C. 550, 553 (1884). See also Scalia & Garner, supra note 532, at 134 ("An unintelligible text is inoperative.").
Scalia & Garner, supra note 532, at 167 (emphasis added).
United States v. Morton, 467 U.S. 822, 828 (1984). See also Eskridge et al., supra note 532, at 1197; Scalia & Garner, supra note 532, at 167. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) ("In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole."); Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 52-53 (1804) ("That a law is the best expositor of itself, that every part of an act is to be taken into view, for the purpose of discovering the mind of the legislature; and that the details of one part may contain regulations restricting the extent of general expressions used in another part of the same act, are among those plain rules laid down by common sense for the exposition of statutes which have been uniformly acknowledged.").
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). See also Eskridge et al., supra note 532, at 1203-04; Scalia & Garner, supra note 532, at 247.
Church of Scientology v. IRS, 484 U.S. 9, 17-18 (1987) ("All in all, we think this is a case where common sense suggests, by analogy to Sir Arthur Conan Doyle's 'dog that didn't bark,' that an amendment having the effect petitioner ascribes to it would have been differently described by its sponsor, and not nearly as readily accepted by the floor manager of the bill."). See also Anita S. Krishnakumar, The Sherlock Holmes Canon, 84 Geo. Wash. L. Rev. 1, 4 (2016) (examining these "'failure to comment' arguments" as "the Sherlock Holmes canon").
Eskridge et al., supra note 532, at 1203. See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 91 (2007) ("No one at the time—no Member of Congress, no Department of Education official, no school district or State—expressed the view that this statutory language . . . was intended to require, or did require, the Secretary to change the Department's system of calculation, a system that the Department and school districts across the Nation had followed for nearly 20 years . . . ."). The authors of Reading Law reject this canon. Scalia & Garner, supra note 532, at 387. See also Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 73-74 (2004) (Scalia, J., dissenting) ("I have often criticized the Court's use of legislative history because it lends itself to a kind of ventriloquism. . . . The Canon of Canine Silence that the Court invokes today introduces a reverse—and at least equally dangerous—phenomenon, under which courts may refuse to believe Congress's own words unless they can see the lips of others moving in unison.").
Eskridge et al., supra note 532, at 1205. See also id. at 1205-06; Scalia & Garner, supra note 532, at 290. See, e.g., Bond v. United States, 134 S. Ct. 2077, 2088-89 (2014).
Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 785 (1991). See also Eskridge et al., supra note 532, at 1209; Scalia & Garner, supra note 532, at 281.
Wachovia Bank, Nat'l Ass'n v. Schmidt, 546 U.S. 303, 316 (2006) (quoting Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)). See also Eskridge et al., supra note 532, at 1201 ("In pari materia rule: when similar statutory provisions are found in comparable statutory schemes, interpreters should presumptively apply them the same way."); id. at 1210 ("In pari materia: similar statutes should be interpreted similarly, unless legislative history or purpose suggests material differences."); Scalia & Garner, supra note 532, at 252 ("Statutes in pari materia are to be interpreted together, as though they were one law."). Cf. Smith v. City of Jackson, 544 U.S. 228, 233 (2005) ("[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes."); Eskridge et al., supra note 532, at 1201 ("Presumption that Congress uses same term consistently in different statutes."); id. ("Borrowed statute rule: when Congress borrows a statute, it adopts by implication interpretations placed on that statute, absent indication to the contrary.").
Scalia & Garner, supra note 532, at 303 (emphasis added).
Bond v. United States, 134 S. Ct. 2077, 2088 (2014). See also Eskridge et al., supra note 532, at 1207; Scalia & Garner, supra note 532, at 303. See also, e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 437-38 (1978).
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007). See also Eskridge et al., supra note 532, at 1207.
Eskridge et al., supra note 532, at 1204. See Mistretta v United States, 488 U.S. 361, 373 n.7 (1989) ("In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.").
Scalia & Garner, supra note 532, at 295 (emphasis added).
Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 664 (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). See also Scalia & Garner, supra note 532, at 295.
Scalia & Garner, supra note 532, at 266 (emphasis added).
Scalia & Garner, supra note 532, at 266. Cf. Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711 (1974) ("[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary."); but see Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837 (1990) (noting "apparent tension" between the rule of Bradley, 416 U.S. at 711, and the presumption against retroactivity but declining to resolve that tension); id. at 841 (Scalia, J., concurring) (arguing these principles are not merely in tension but are "in irreconcilable contradiction").
Bond v. United States, 134 S. Ct. 2077, 2088 (2014) (citing Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255 (2010)). See also Eskridge et al., supra note 532, at 1208 ("Rule against extraterritorial application of U.S. law. Presumption that Congress legislates with domestic concerns in mind." (citations omitted)); Scalia & Garner, supra note 532, at 268 ("A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt)."). Cf. Eskridge et al., supra note 532, at 1201 ('Presumption that statutes be interpreted consistent with international law and treaties."); id. at 1204 ("Presumption that U.S. law conforms to U.S. international obligations. Presumption that Congress takes account of the legitimate sovereign interests of other nations when it writes American laws." (citations omitted)); id. at 1208 ("American laws apply to foreign-flag ships in U.S. territory and affecting Americans, but will not apply to the 'internal affairs' of a foreign-flag ship unless there is a clear statutory statement to that effect.").
Eskridge et al., supra note 532, at 1201 (emphasis added).
Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001). See also Eskridge et al., supra note 532, at 1201.
Morton v. Mancari, 417 U.S. 535, 549 (1974) (quoting Posadas v. Nat'l City Bank, 296 U.S. 497, 503 (1936)) (internal quotation mark omitted). See also Eskridge et al., supra note 532, at 1201, 1210 ("Presumption against repeals by implication. But where there is a clear repugnancy between a more recent statutory scheme and an earlier one, partial repeal will be inferred." (citations omitted)); Scalia & Garner, supra note 532, at 327 ("Repeals by implication are disfavored . . . . But a provision that flatly contradicts an earlier-enacted provision repeals it."); id. at 336 ("A statute is not repealed by nonuse or desuetude."). Cf. Posadas, 296 U.S. at 503 ("There are two well-settled categories of repeals by implication—(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act.").
Nw. Airlines v. Transp. Workers Union, 451 U.S. 77, 94 (1981). See also Eskridge et al., supra note 532, at 1204 ("Presumption against 'implying' causes of action into federal statutes."); id. at 1210 ("Presumption against private right of action unless statute expressly provides one . . . ."); Scalia & Garner, supra note 532, at 313 ("A statute's mere prohibition of a certain act does not imply creation of a private right of action for its violation. The creation of such a right must be either express or clearly implied from the text of the statute."). Cf. Eskridge et al., supra note 532, at 1210 ("When Congress enacts a specific remedy when no remedy was clearly recognized previously, the new remedy is regarded as exclusive."). See also, e.g., Va. Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102 (1991) ("[A]ny private right of action for violating a federal statute must ultimately rest on congressional intent to provide a private remedy. From this the corollary follows that the breadth of the right once recognized should not, as a general matter, grow beyond the scope congressionally intended." (citation omitted)).
Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
Vartelas v. Holder, 566 U.S. 257, 266 (2012). See also Eskridge et al., supra note 532, at 1207; Scalia & Garner, supra note 532, at 261. Cf. Eskridge et al., supra note 532, at 1209 ("[L]aw takes effect on date of enactment." (citing Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991))).
United States v. King, 395 U.S. 1, 4 (1969). See also Eskridge et al., supra note 532, at 1209; Scalia & Garner, supra note 532, at 281. See also, e.g., FAA v. Cooper, 566 U.S. 284, 290 (2012). The same is true for a statute to waive state sovereign immunity. See infra note 614. Cf. Eskridge et al., supra note 532, at 1209 ("Presumption that federal agencies launched into commercial world with power to 'sue and be sued' are not entitled to sovereign immunity.").
Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 538 (2013) (first alteration in original) (quoting Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010)). See also Eskridge et al., supra note 532, at 1208 ("Presumption in favor of following common law usage and rules where Congress has employed words or concepts with well-settled common law traditions."); Scalia & Garner, supra note 532, at 318 ("A statute will be construed to alter the common law only when that disposition is clear."); id. at 320 ("A statute that uses a common-law term, without defining it, adopts its common-law meaning."). See also, e.g., Evans v. United States, 504 U.S. 255, 259 (1992) ("[A] statutory term is generally presumed to have its common-law meaning." (quoting Taylor v. United States, 495 U.S. 575, 592 (1990)) (internal quotation mark omitted)).
Eskridge et al., supra note 532, at 1207 ("Presumption in favor of judicial review."); id. ("Rule against interpreting statutes to deny a right to jury trial."); id. ("Super-strong rule against implied congressional abrogation or repeal of habeas corpus."); id. at 1208 ("Presumption against exhaustion of remedies requirement for lawsuit to enforce constitutional rights."); id. ("Presumption that judgments will not be binding upon persons not party to adjudication."); id. ("Presumption against foreclosure of private enforcement of important federal rights."). See, e.g., Demore v. Hyung Joon Kim, 538 U.S. 510, 517 (2003). But see Scalia & Garner, supra note 532, at 367 (describing as a "false notion" the idea "that a statute cannot oust courts of jurisdiction unless it does so expressly").
Eskridge et al., supra note 532, at 1201 (emphasis added).
Eskridge et al., supra note 532, at 1201. See Finley v. United States, 490 U.S. 545, 554 (1989) ("Under established canons of statutory construction, 'it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed.'" (quoting Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912))); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521 (1989) ("A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change.").
Baker v. Compton, 211 N.E.2d 162, 164 (Ind. 1965) (citing Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932)). See also Eskridge et al., supra note 532, at 1202 ("acquiescence rules"); id. at 1199 ("Even informal and unsettled agency interpretations (such as those embodied in handbooks or litigation briefs) may be useful confirmations for the interpreter's interpretation of statutory language.").
E.g., Shapiro v. United States, 335 U.S. 1, 16 (1948) ("In adopting the language used in the earlier act, Congress 'must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment.'" (quoting Hecht v. Malley, 265 U.S. 144, 153 (1924))). See also Scalia & Garner, supra note 532, at 322 ("If a statute uses words or phrases that have already received authoritative construction by the jurisdiction's court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction.").
Jama v. ICE, 543 U.S. 335, 349 (2005) (holding there was no such "congressional ratification"). Eskridge et al., supra note 532, at 1202 ("re-enactment rule").
Bob Jones Univ. v. United States, 461 U.S. 574, 600 (1983).
Maracich v. Spears, 570 U.S. 48, 60 (2013) (quoting Commissioner v. Clark, 489 U.S. 726, 739 (1989) (alteration in original)). See also Eskridge et al., supra note 532, at 1199, 1211. See also, e.g., A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) ("Any exemption from . . . remedial legislation must . . . be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress."). But see Scalia & Garner, supra note 532, at 359 (describing as "false notion" the idea "that tax exemptions—or any other exemptions for this matter—should be strictly construed"). Cf., e.g., Andrus v. Glover Constr. Co., 446 U.S. 609, 616-17 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied . . . .").
Eskridge et al., supra note 532, at 1198 (emphasis added).
Stone v. INS, 514 U.S. 386, 397 (1995). See also Eskridge et al., supra note 532, at 1198 ("[S]tatutory amendments are meant to have real and substantial effect."); id. at 1202 ("Statutory history (the formal evolution of a statute, as Congress amends it over the years) is always potentially relevant."); Scalia & Garner, supra note 532, at 256 ("If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning."). See also, e.g., Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 57-58 (2006) ("We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise.").
Scalia & Garner, supra note 532, at 334 (emphasis added).
Scalia & Garner, supra note 532, at 334.
Scalia & Garner, supra note 532, at 278 (emphasis added).
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810). See also Scalia & Garner, supra note 532, at 278 ("The legislature cannot derogate from its own authority or the authority of its successors.").
Scalia & Garner, supra note 532, at 296. See also Eskridge et al., supra note 532, at 1207, 1213. E.g., Liparota v. United States, 471 U.S. 419, 427 (1985). Cf. Eskridge et al., supra note 532, at 1207 ("Rule of lenity may apply to civil sanction that is punitive or when underlying liability is criminal."); see also Scalia & Garner, supra note 532, at 297-98 (discussing this "interpretive problem").
How to Resolve a Conflict Between Statutes of Equal Status
Source: https://www.everycrsreport.com/reports/R45153.html