7.7 SUMMARY
This chapter provides a brief glance at the many possibilities for statutory interpretation arguments. The most important thing you can do to make these arguments effectively is to read and understand the statute at issue.
That knowledge will allow you to find available arguments, and to recognize both intrinsic and extrinsic authorities that can advance your client’s case.
Chapter Seven Review
1. With a new fact pattern, be sure to do statutory research. 2. Start with plain language. 3. Read the rest of the statute, the rest of the chapter, and the rest of the title (or at least its table of contents). 4. The more straightforward your analysis is, the more likely the court will be to agree with it. 5. Courts like consistency: It’s good to argue that a word should mean the same thing throughout a statute, and that a phrase should mean the same thing in two similar statutes. 6. Use legislative history as further support, not sole support. 7. Both changed language and lack of changed language can be significant. 8. Don’t reinvent the wheel: Use your statute number as a search term, and look for cases and law review articles that have analyzed its language and legislative history. 9. Be able to translate Latin phrases, and to research canon arguments using language other than the formal name of the canon. 10. Remember the lessons of the abstraction ladder: Unless you are making an in pari materia argument, you don’t need to look for cases in which courts were interpreting identical statutes. Pay attention to the legally significant categories. What statutory problem was that court solving?
1 E.g., William Eskridge Jr. et al., Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy (5th ed. West 2014); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).
2 Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 83 (2017) (“I am skeptical of canons, and not simply because of Professor Karl Llewellyn’s famous list of canons and countercanons”) (citing 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, 401-06 (1950).
3 Easterbrook, supra note X, at 83. 4Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 1006 (2016). 5James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 4 (2005) 6See Easterbrook, supra note X, at 82. 7E.g., Pereira v. Sessions, No. 17-459, 2018 WL 3058276, at *8 (U.S. June 21, 2018) (noting that “it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same
meaning”) (citation and internal quotation marks omitted); Food & Water Watch, Inc. v. United States Envtl. Prot. Agency, 302 F. Supp. 3d 1058 (N.D. Cal. 2018) (noting the “general principle of statutory construction that when 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”) (citation omitted).
8 Pamela Keller, Statutory Interpretation: Are You Are Up to Date (the Data)?, J. Kan. B. Ass’n, September 2017, at 74, 75. 918 U.S.C. § 2119. 10Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (citations omitted). 11Wilkie v. City of Boiling Spring Lakes, 809 S.E.2d 853, 858 (N.C. 2018) (citations omitted). 12E.g., Voisine v. United States, 136 S. Ct. 2272, 2278-79 (2016) (using Black’s and two standard dictionaries to define the word “use”). 13Cruz v.
Abbott, 849 F.3d 594, 599 (5th Cir. 2017) (footnotes omitted). 14Benson v. City of Madison, 897 N.W.2d 16, 26 (Wis. 2017) (citation and internal punctuation omitted). 15Liquor Outlet, LLC v. Alcoholic Bev. Control Bd., 141 S.W.3d 378, 385 (Ky. Ct. App. 2004) (citation omitted). 16135 S. Ct. 1074, 1078 (2015). 1718 U.S.C. § 1519. 18Yates, supra. n. 16, at 1081. 19Id. at 1087. 20Commonwealth v. Scott, 176 A.3d 283, 287 (Pa. Super. 2017). 21Id. at 288. 22Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in judgment). 23Custis v. United States, 511 U.S. 485, 500-01 (1994). 24Id. at 501. 25 The “Chevron test” comes from a 1984 Supreme Court decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Recently, courts have begun referencing the “Skidmore” test, based on the Court’s opinion in Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944). The Skidmore test is much less deferential; courts tend to apply it when an agency takes action that is not specifically authorized, or when the agency makes a pronouncement that has not followed formal procedures. The test essentially evaluates various indicia of reliability. Receiving Skidmore deference “will depend upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” As the United States Supreme Court noted in 2001, the amount of deferencegiven in the Skidmore test varies from “great respect at one end... to near indifference at the other.” United States v. Mead Corp., 533 U.S. 218, 228 (2001). Not surprisingly, courts are much more likely to reject an agency interpretation when applying Skidmore deference.
26 Chevron, 467 U.S. at 844. 27Marshall v.
Civil Serv. Comm’n, 2016 COA 156, ¶ 9, 401 P.3d 96 (Colo. Ct. App. 2016). 28Taylor v. Dep’t of Health & Human Servs., 314 P.3d 949, 951 (Nev. 2013). 29Brigman v. City of W. Memphis, 2013 Ark. App. 66, at 2-3, 2013 WL 457909. 30Fort Hays State Univ. v. Fort Hays State Univ. Chapter, Am. Ass’n of Univ. Professors, 228 P.3d 403, 410-11 (Kan. 2010).31Collinsville Community Unit Sch. Dist. No. 10 v. Reg’l Bd. of Sch. Trustees of St. Clair County, 843 N.E.2d 273, 280 (Ill. 2006) (citations and internal punctuation omitted).
32 State v. Thonesavanh, 904 N.W.2d 432, 437-38 (Minn. 2017), reh’g denied (Oct. 12, 2017) (citations and internal punctuation omitted). 33E.g., Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006) (“under the in pari materia canon, statutes addressing the same subject matter generally should be read as if they were one law”) (citations and internal punctuation omitted). 34Thonesavanh, 904 N.W.2d at 438. 35Farris v. McKaig, No. 337366, 2018 WL 2269775, at *3 (Mich. Ct. App. May 17, 2018). 36As indicated, your research will be more successful if you are aware of original titles, nicknames, and other ways that courts and commentators refer to a statute. 37I purposely do not use “defin!” as a search term because I do not want to search for the word “definite.” 38Rush Univ. Med. Ctr. v. Burwell, 763 F.3d 754, 755-56 (7th Cir. 2014). 39Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986-87 (2005). 40Rush Univ. Med. Ctr. v. Burwell, 763 F.3d 754, 758 (7th Cir. 2014).