7.1 INTRODUCTION
Let me first say what this chapter is not: It is not the Curious Law Student’s Compleat Guide to Statutory Interpretation. You can find books and articles galore on that topic.1 Likewise, although this chapter will no doubt reveal some textualist tendencies, it will not address the philosophy behind textualism, or behind formalism, purposivism, legal realism, or antidisestablishmentarianism.
Many scholars complain about the limitations of the canons, or rules, of statutory interpretation. Most famously, in 1950, Professor Karl Llewellyn wrote an article in which he argued that many canons have “countercanons” that lead to a result that contradicts their opposite number.2In more recent articles, Judge Easterbrook decries an “absence of method”3in statutory interpretation, while others talk of “dueling canons”4or the “elusive quest for neutral reasoning.”5
I agree with Judge Easterbrook that it is often difficult to find a reliable, reproducible method behind statutory decision making, and I agree with him and Professor Llewellyn that pretty much any canon has exceptions. As Judge Easterbrook notes, most canons contain the implicit caveat “unless context dictates otherwise.”6
Scholars, and your own research, will tell you that canons can probably be found to justify arguments on each side of a case, making canons neither a neutral nor reliable too. Nevertheless, lawyers use them to argue cases, and judges use them to decide cases. Accordingly, in this chapter I will teach you some methods you can use to get in on the fun. This chapter will introduce you to some (but not all) of the well-worn paths that lawyers follow when they argue for or against a particular interpretation of a statute. Many of these paths have been enshrined as formal “canons” of construction, but don’t get hung up on that word.
“Canon” is just a fancy way of saying rule or principle, and lots of courts analyze statutes without ever mentioning the word.7 Whatever you call them — rules, tenets, guidelines, or canons — if you learn some of the more common statutory arguments, you’ll be better able to use those and others to give a court a peg to hang its hat on, or to knock the hat off the peg that your opponent has provided.When making a statutory interpretation argument, your goal should be to demonstrate that the interpretation you advocate is a plausible one, and that it is consistent with the statute’s language, purpose, or — ideally — both. In general, the more complex your argument is, the less happy the court will be with it. As Professor Pamela Keller has observed, “Forget textualism, intentionalism, purposivism, and other isms: If [an] interpretation... is ‘messy,’ the court won’t like it.”8 This chapter will describe several possible arguments you can use. Although you should never use all of them, you should almost always use more than one. If a court can see that two or more arguments lead to the same result, it will feel more confident about adopting the interpretation you advocate. Remember, though. that the more calisthenics the court has to go through to understand your argument, the less likely it will be to adopt your interpretation.
Reduced to their foundations, arguments of statutory interpretation focus on one or more of the following four aspects of controversial language:
(1) what the language says, (2) what the language means now, (3) what the language meant when the legislation was enacted, and (4) what the legislature meant when it enacted the law.
After a brief discussion of how to research and read statutes, this chapter will discuss “internal” or “intrinsic” arguments; these are arguments based on the language at issue, or on language from other parts of the relevant provision, statute, chapter, or title. It will then discuss “external” or “extrinsic” arguments; these are arguments based on regulations, legislative history, and case law. The chapter concludes with some methods for researching statutory interpretation arguments.