Codified canons and the common law of interpretation

Georgetown Law Journal

Volumn 98, Issue 2, 2010, Pages 341-425

  Scott, Jacob ^a,b  

^a YALE UNIVERSITY   (United States)

^b WILLIAMS COLLEGE   (United States)

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EID: 77949317956     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (391)

1. See, e.g., EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 8 (2008) (stating that interpreters should strive to maximize "the satisfaction of enactable political preferences" with respect to a particular policy).
2. See REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 228 (1975).
3. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 345-53 (1990) (using three Supreme Court cases to illustrate the impact Justices' political assumptions have on their statutory interpretations).
4. See Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, 57 LAW & CONTEMP. PROBS. 65, 68-70 (1994);
5. Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263, 268 n.15 (1990). .
6. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162, 2226-35 (2002) (using probabilistic formulas to justify the application of specific canons as preference-eliciting default rules that ultimately maximize the satisfaction of legislative preferences by spurring more explicit legislative action).
7. When I use "legislative preferences," I do not refer to the particular "expectations that legislators had when they enacted the statute" regarding particular policy results, Eskridge & Frickey, supra note 3, at 324, but rather the expectations legislators had regarding the sources and methods by which that statute would be interpreted.
8. See 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, 399, 401-06 (1950). As an example of canons and countercanons, Llewellyn puts forth a "set of mutually contradictory correct rules on How to Construe Statutes" that govern statutory construction. Id. at 399.
9. See WILLIAM N. ESKRIDGE, JR., PHUJP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 817-18 (3d ed. 2001). It should be noted that many canons of construction are applicable to constitutional law, administrative law, and common law. My primary focus here is the canons as applied to statutory construction.
10. See generally Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV. 1179. Professor Miller's impressive historical research demonstrates striking similarities between ancient interpretive texts and modern canons. The general contours of our modern canons are similar to much older interpretive tools, including norms and conventions used to construe ancient Hindu texts, medieval Christian commentary on interpreting the Bible, Talmudic commentary on construing the Old Testament, and rules governing the interpretation of Roman Law.
11. Heydon's Case, Y.B. 26 Eliz., fol. 7a, Pasch, (1584) 76 Eng. Rep. 637 (L.R. Exch.). Lord Coke thought judges should look to the mischief that the legislature was attempting to cure: [F]or the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered: - 1st. What was the common law before the making of the Act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. Id. at 638 (internal citations omitted).
12. See 1 WILLIAM BLACKSTONE, COMMENTARIES *87-92.
13. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 36 fig. (2005). The set of opinions for this study focused on employment law and included 632 cases with published opinions directly addressing some aspect of the employment relationship. Id. at 5.
14. The common law develops through judicial decisionmaking rather than through legislative processes. Past opinions change how the law applies in future cases. Stare decisis presumes that future cases will defer to past legal reasoning.
15. BLACK'S LAW DICTIONARY 219 (8th ed. 2004).
16. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881).
17. See, e.g., Elliot Coal Mining Co. v. Dir., Office of Workers' Comp. Programs, 17 F.3d 616, 631 (3d Cir. 1994) ("[A]dditional support for our parsing of the text of the Act... can be found in the 'mischief' rule, discussed in the venerable Heydon's Case. That canon of construction directs a court to look to the 'mischief and defect' that the statute was intended to cure." (quoting Heydon's Case, Y.B. 26 Eliz., fol. 7a, Pasch, (1584) 76 Eng. Rep. 637, 638 (L.R. Exch.)); In re Webb, 214 B.R. 553, 556 (E.D. Va. 1997) (noting that the result is "consistent with the application Virginia's venerable 'mischief rule' of statutory construction");
18. N. X-Ray Co. v. State ex rel. Hanson, 542 N.W.2d 733, 736-38 (N.D. 1996) (construing statute with "the 'Mischief Rule' in mind");
19. Rector & Visitors of the Univ. of Va. v. Harris, 387 S.E.2d 772, 775 (Va. 1990) (noting that Supreme Court of Virginia has "reiterated and reaffirmed the 400-year-old 'mischief rule' of statutory construction"). For a description of the mischief rule, see supra note 10.
20. See Rebecca R. Zubaty, Foreign Law and the U.S. Constitution: Delimiting the Range of Persuasive Authority, 54 UCLA L. Rev. 1413, 1423 n.40 (noting the House of Lords's "longstanding precedent" prohibiting the use of legislative history).
21. [1993] A.C. 593 (H.L. 1992) (appeal taken from Eng.) (U.K.).
22. Id. at 618.
23. In Pepper, the House of Lords abandoned the rule that British courts may not consult legislative history, but the law lords did not state when legislative history trumps indicia of meaning in other sources. Id. Several Lords described the circumstances in which the use of legislative history is justifiable. See, e.g., id. at 613 (opinion by Lord Chancellor) (The Lord Chancellor stated that "reference to Parliamentary material" was "justifiable" to confirm textual meaning, "determine a meaning where the provision is ambiguous or obscure," or "determine the meaning where the ordinary meaning is manifestly absurd or unreasonable"); id. at 620 (opinion by Lord Oliver of Aylmerton) (Lord Oliver of Aylmerton stated that legislative history could only be consulted "where the expression of the legislative intention is genuinely ambiguous or obscure or where a literal or prima facie construction leads to a manifest absurdity and where the difficulty can be resolved by a clear statement directed to the matter in issue"); id. at 634 (opinion by Lord Browne-Wilkinson) (Lord Browne-Wilkinson concluded that reference to Parliamentary material "should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words"). These descriptions, however, do not place legislative history in a finely detailed hierarchy of sources of meaning.
24. See, e.g., Llewellyn, supra note 7, at 401 ("[T]o make any canon take hold in a particular instance, the construction contended for must be sold, essentially, by means other than the use of the canon . . . .").
25. Conn. Nat'l Bank v. Germain, 503 U.S. 249,253 (1992).
26. See Eskridge & Frickey, supra note 3, at 381 ("Over time the hermeneutical discourse develops traditions that constrain the sorts of arguments that can be made, and new discourses build upon the agreements reached in prior discourses.").
27. 3 NORMAN J. SINGER & J.D. SHAMBIE SINGER, STATUTES AND STATUTORY CONSTRUCTION § 65A:13, at 797 (7th ed. 2008) [hereinafter SUTHERLAND].
28. Nor is there even widespread consensus about the degree to which the canons should reflect the actual legislative process - for some scholars, canons are not even about substantive legislative preferences. They are about making judges' lives easier. The key is "understanding that many of these canons reflect neither efforts to divine statutory meaning nor attempts to further judicial or legislative preferences, but rather reflect default rules designed to elicit legislative preferences under conditions of uncertainty." Elhauge, supra note 5, at 2165. The judge's application of whatever palette of canons he chooses to apply serves to "provoke a legislative reaction" if application of the canons produces a result contrary to legislative intent. The ultimate result of this conformity is (hopefully) a clearer expression of legislative choices as the legislature drafts statutes with greater precision. This means drafting statutes that press the right judicial buttons to achieve the legislature's desired result. For other scholars, however, canons are closely connected to the legislative process and constitutional constraints. They are the product of careful observation of how substantive and procedural decisionmaking is made by the legislature, and aimed principally at achieving the legislature's desired outcome rather than forcing a legislative response. In sum, the traditional view about how to go about deriving statutory meaning - which canons to apply, how to apply them, how heavy the presumptions - is "mere custom[ ]" and up to the judge and the judiciary. BLACK'S LAW DICTIONARY 219 (8th ed. 2004) (definition of "canon of construction").
29. Descriptively, there are many different ways of dividing up the panorama of theories on statutory interpretation, but I believe these three accounts capture the field as it exists today. I adopt the division advanced in WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, LEGISLATION AND STATUTORY INTERPRETATION 219 (2d ed. 2006); see also 3 SUTHERLAND, supra note 24, § 65A:13, at 797 (7th ed. 2008) (stating that the "three traditional or 'foundationalist' theories of statutory interpretation which continue to influence modern theories of statutory interpretation [are] intentionalism, purposivism, and textualism").
30. ESKRIDGE, FRICKEY & GARRETT, supra note 26, at 222..
31. See Holy Trinity Church v. United States, 143 U.S. 457 (1892) (interpreting a statute prohibiting paying for the transportation of an "alien" to the United States "to perform labor or service of any kind" to be inapplicable to Holy Trinity Church's importation of an Englishman to serve as rector and pastor because "[n]o one reading [the statute] would suppose that congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain").
32. See Zedner v. United States, 547 U.S. 489, 509-10 (2006) (Scalia, J., concurring) ("For reasons I have expressed elsewhere, I believe that the only language that constitutes 'a Law' within the meaning of the Bicameralism and Presentment Clause of Article I, § 7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute." (citation omitted))
33. ESKRIDGE, FRICKEY & GARRETT, supra note 26, at 249.
34. Id. at 250 fig.
35. Even Nicholas Rosenkranz, who has considered whether Congress should adopt federal interpretive rules, does not examine the interpretive rules of the states or appreciate their significance in the context of the common law of interpretation. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV, 2085 (2002). He considers whether Congress should adopt state interpretive codes but does not recognize the substance of state codifications of canons, nor consider how those patterns affect statutory interpretation more generally. See id. at 2132-33.
36. Even though Chief Justice Marshall emphasized that it is "the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), legislatures can guide judges in the exercise of that duty by codifying or rejecting interpretive canons. Legislating interpretive methodology provides a stable platform on which legislatures can write statutes and from which courts can interpret At the very least, it is more difficult for courts to ignore particular canons when they are codified than when they are not.
37. See also WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 284 (1994) (noting that Congress can be frustrated by changing interpretive regimes).
38. See 3 SUTHERLAND, supra note 24, § 65A:13, at 797 (7th ed. 2008).
39. Federal Government, tit. 1, ch. 1 ("Rules of Construction"); Alabama, tit. 1, ch. 1 ("Construction of Code and Statutes"); Alaska, tit. 1, ch. 10, art. 2 ("General Definitions and Rules of Statutory Construction"); Arizona, tit. 1, ch. 2, art. 2 ("General Rules of Statutory Construction"); Arkansas, tit. 1, ch. 2, subch. 2 ("Construction"); California Civil Code ("Preliminary Provisions" & "Definitions and Sources of Law") (California was the only code for which there is no code-wide interpretive section because it is organized by subject matter and "[t]he general rules for the construction of statutes are contained in the preliminary provisions of the different codes." CAL. GOV'T CODE § 9603 (West 2007). As an imperfect solution, I used the California Civil Code's interpretive provisions with the exception of the California Civil Code's "Maxims of Jurisprudence," CAL. CIV. CODE §§ 3509-3548 (West 2007), which are unique to the Civil Code. The remaining codifications appear to be more or less typical of provisions governing the interpretation of other subject matter codes.); Colorado, tit. 2, art. 4 ("Construction of Statutes"); Connecticut, tit. 1, ch. 1 ("Construction of Statutes"); Delaware, tit. 1, ch. 3 ("Interpretation of Statutes"); District of Columbia, tit 45 ("Compilation and Construction of Code"); Florida, tit. 1 ("Construction of Statutes"); Georgia, tit. 1, ch. 3 ("Laws and Statutes"); Hawaii, tit. 1, ch. 1 ("Common Law; Construction of Laws"); Idaho, tit. 73, ch. 1 ("Construction of Statutes"); Illinois, ch. 5, act 70 ("Statute on Statutes"); Indiana, tit. 1, art. 1, ch. 4 ("Construction of Statutes"); Iowa, tit. I, subtit. 2, ch. 4 ("Construction of Statutes"); Kansas, ch. 77, art. 2 ("Statutory Construction"); Kentucky, tit. XLI, ch. 446 ("Construction of Statutes"); Louisiana, tit. 1, ch. 1 ("Interpretation of Revised Statutes"); Maine, tit. 1, ch. 3 ("Rules of Construction"); Maryland, art. 1 ("Rules of Interpretation"); Massachusetts, pt. I, tit. I, ch. 4 ("Statutes"); Michigan, ch. 8 ("Statutes"); Minnesota, ch. 645 ("Interpretation of Statutes and Rules"); Mississippi, tit. 1, ch. 3 ("Construction of Statutes"); Missouri, tit. I, ch.1 ("Laws in Force and Construction of Statutes"); Montana, tit. 1, chs. 2-3 ("Statutory Construction" & "Maxims of Jurisprudence"); Nebraska, ch. 49 ("Law"); Nevada, preliminary ch. ("General Provisions"); New Hampshire, tit. 1, ch. 21 ("Statutory Construction"); New Jersey, tit. 1, ch. 1 ("Definitions and General Rules of Construction"); New Mexico, ch. 12, arts. 2-2A ("Statutory Construction" & "Uniform Statute and Rule Construction Act"); New York ("General Construction Law"); North Carolina, chs. 12 & 164 ("Statutory Construction" & "Concerning the General Statutes of North Carolina"); North Dakota, tit. 1, chs. 1-01 to 1-02 ("General Principles and Definitions" & "Rules of Interpretation"); Ohio, ch. 1 ("Definitions; Rules of Construction"); Oklahoma, tit. 25, ch. 1 & tit. 75, ch. 2 ("Meaning of Terms and Construction of Statutes" & "Statutes and Session Laws"); Oregon, tit. 17, ch. 174 ("Construction of Statutes; General Definitions"); Pennsylvania, tit. 1, pt. V ("Statutory Construction"); Rhode Island, tit. 43 ("Statutes and Statutory Construction"); South Carolina, tit. 2, ch. 7 ("Legislative Enactments"); South Dakota, tit. 2, chs. 2-14 ("Construction and Effect of Statutes"); Tennessee, tit. 1, ch. 3 ("Construction of Statutes"); Texas, Government Code, tit. 3, subtit. B, ch. 312 ("Construction of Words and Phrases"); Utah, tit. 68, ch. 3 ("Construction"); Vermont, tit. 1, ch. 3 ("Construction of Statutes"); Virginia, tit. 1, ch. 2.1 ("Common Law and Rules of Construction"); Washington, tit. 1, ch. 1.12 ("Rules of Construction"); West Virginia, ch. 2, art. 2 ("Legal Holidays; Special Memorial Days, Construction of Statutes; Definitions"); Wisconsin, ch. 990 ("Construction of Statutes"); Wyoming, tit. 8, ch. 1 ("Common Law, Statutes and Rules of Construction"). Because the mission of this paper is to examine rules of interpretation that can be applied to the entire code, I only examine rules of interpretation that govern a polity's entire legal system. I do not examine legislative interpretive directives that apply only to a local section of the code, see, e.g., 21 U.S.C. § 854(d) (2006)
40. See, e.g., Tate v. Ogg, 195 S.E. 496, 499 (Va. 1938) (a statute that applied to "'any horse, mule, cattle, hog, sheep or goat'" did not apply to turkeys).
41. See, e.g., Zerbe v. State, 578 P.2d 597, 598 (Alaska 1978) (looking to applications of Federal Tort Claims Act to interpret similar language in a state statute),
42. overruled on other grounds by Stephens v. State, Dept of Revenue, 746 P.2d 908 (Alaska 1987),
43. and Kinegak v. State, Dept of Corr., 129 P.3d 887 (Alaska 2006).
44. See, e.g., CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 150 (1990).
45. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 (1994).
46. ESKRIDGE, FRICKEY & GARRETT, supra note 8, app. B.
47. I have classified the canons as codified or rejected by a particular statute. The principle I have used to determine whether there is a codification or rejection is whether a codification forecloses or endorses the use or nonuse of a particular canon. These classifications should be treated as signposts to the common law canons rather than fully textured enactments. It is crucial to consult the source codification, as whenever complicated and diverse rules are forced into simplified boxes, resolution is lost; as will become clear by the large variety of codifications quoted, these rules are complex. I have omitted the total number of legislatures that do not appear to have taken a position on a particular canon. This omission is justified because sufficiently rehable inferences cannot be drawn from this kind of legislative inaction, see supra text accompanying note 182, and my focus is on manifest legislative preference. It is, at best, tenuous to draw legislative preference inferences based wholly on inaction or silence. Such inferences would just be guessing in the dark - silence could mean satisfaction with the conventional rules (as customary and loosely constrained as they may be), or it could mean nothing more than that a legislature has not yet considered interpretive rules, or it could mean agreement with the interpretive rules codified by other jurisdictions (if there is widespread agreement on the particular rule). In some cases, only a few, or one, legislature has taken a position on a canon. Even when only a small number of legislatures have expressed a choice, it is possible to draw appropriately cautious conclusions, focusing on whether there is agreement between jurisdictions, and the precise form of the rule enacted. Where more legislatures actively reach consensus or actively disagree on the utility of a particular canon, the patterns increase in significance.
48. The inclusion of one thing indicates exclusion of others. See Tate v. Ogg, 195 S.E. 496,499 (Va. 1938) (holding that where a statute applied to "'any horse, mule cattle, hog, sheep or goat,'" it did not apply to turkeys); 2A SUTHERLAND, supra note 24, § 47:23, at 404 (7th ed. 2007) (stating that where a list of things is designated, "all omissions should be understood as exclusions").
49. Literally, "it is known from its associates," but more usefully described as outlining the inference that ambiguous words may be illuminated by the words grouped with it in a statute. 2A SUTHERLAND, supra note 24, § 47:16 (7th ed. 2007);
50. see Jarecki v. G.D. Searle & Co., 367 U.S. 303, 305-07 (1961) (given the word string "'resulting from exploration, discovery, or prospecting,'" the Court construed "discovery" to mean only discovery of mineral resources and to not include scientific discoveries).
51. Meaning "of the same kind" and the touchstone for inferences that particular words implicitly establish a class of objects and that provision applies to that class. 2A SUTHERLAND, supra note 24, § 47:17 (7th ed. 2007); see Heathman v. Giles, 374 P.2d 839, 839-40 (Utah 1962) (given the word string "'any sheriff, constable, peace officer, state road officer, or any other person charged with the duty of enforcement of the criminal laws of this state,'" the court held that prosecutors were not "'other person[s] charged with the duty of enforcement of the criminal laws'" because "other person[s]" is limited by the class described in the initial word string).
52. See MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 228 (1994) (using ordinary usage canon to hold that the Federal Communication Commission's authority to "modify" tariff requirements does not allow it to waive tariffs because "'[m]odify,' in [the Court's] view, connotes moderate change" and stating that "[i]t might be good English to say that the French Revolution 'modified' the status of the French nobility - but only because there is a figure of speech called understatement and a literary device known as sarcasm").
53. See Muscarello v. United States, 524 U.S. 125, 128 (1998) (consulting the Oxford English Dictionary, Webster's Third New International Dictionary, and Random House Dictionary of the English Language Unabridged for the meaning of the word "carry"); 2A SUTHERLAND, supra note 24, § 46:2, at 162-64 (7th ed. 2007).
54. 2A SUTHERLAND, supra note 24, § 46:1, at 137-41 (7th ed. 2007). One notable example, United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc),
55. aff'd sub nom Chapman v. United States, 500 U.S. 453 (1991), demonstrates the difficulty surrounding the application of the plain meaning rule and whether or not an absurd result exception attaches to a particular circumstance. In Marshall, a mandatory minimum sentencing statute was triggered by selling more than one gram of a "'mixture or substance containing a detectable amount'" of LSD. Id. at 1315. The court held that it was "not possible to construe the words of [the statute] to make the penalty turn on the net weight of the drug rather than the gross weight of [the] carrier and drug," even though the paper on which the LSD was delivered weighed 110 times the weight of the LSD. Id. at 1315,1317. Judge Posner dissented partly because of a "constitutional commitment to rationality," noting that "[a]ll this seems crazy." Id. at 1333,1317 (Posner, J., dissenting).
56. Chrisman v. Terminal R. Ass'n, 157 S.W.2d 230,234 (Mo. Ct. App. 1942).
57. 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 3,23 (Amy Gutmann ed., 1997).
58. 3 SUTHERLAND, supra note 24, § 58:2, at 90 (7th ed. 2008).
59. Id. (recognizing that strict construction "does not require that the words of a statute be given the narrowest meaning of which they are susceptible").
60. Id.
61. N.M. STAT. § 12-2A-20(A) (2005). Minnesota has also implicitly codified ejusdem generis and noscitur a sociis: "general words are construed to be restricted in their meaning by preceding particular words." MINN. STAT. § 645.08(3) (2008).
62. OHIO REV. CODE ANN. § 1.42 (LexisNexis 1990).
63. See 85 OHIO JUR. 3D Statutes § 215 (2004).
64. See ALASKA STAT. § 01.10.040(b) (2008); MD. CODE ANN. art. 1, § 30 (LexisNexis 2005 & Supp. 2008); VA. CODE ANN. § 1-218 (2008).
65. ALASKA STAT. § 01.10.040(b) (2008).
66. MD. CODE ANN. art. 1, § 30 (LexisNexis 2005 & Supp. 2008).
67. MINN. STAT. § 645.19 (2008).
68. See infra note 107.
69. MINN. STAT. § 645.19 ("Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer.").
70. Pennsylvania has an identical provision. 1 PA. CONS. STAT. § 1924 (2006).
71. MASS. GEN. LAWS ANN. ch. 4, § 6 (West 2006).
72. See, e.g., Muscarello v. United States, 524 U.S. 125, 128 (1998) (consulting the Oxford English Dictionary, Webster's Third New International Dictionary, and Random House Dictionary of the English Language Unabridged for the meaning of the word "carry").
73. COLO. REV. STAT. § 2-4-201(c) (2008).
74. HAW. REV. STAT. § 1-15 (1993).
75. See, e.g., IND. CODE § 1-1-4-1(1) (1998) ("Words and phrases shall be taken in their plain, or ordinary and usual, sense."). Oklahoma obliquely invokes the plain meaning rule by stating that words should be understood ordinarily unless a reason to do otherwise "plainly appears." OKLA. STAT. ANN. tit. 25, § 1 (West 2008). This focus on the "plain" text is the hallmark of the plain meaning rule.
76. CONN. GEN. STAT. § 1-2z (2007); see also LA. REV. STAT. ANN. § 1:4 (2003) ("When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit."); N.M. STAT. § 12-2A-19 (2005) ("The text of a statute or rule is the primary, essential source of its meaning.").
77. Pennsylvania has a limited and specific list of laws that should be strictly construed ("(1) Penal provisions. (2) Retroactive provisions. (3) Provisions imposing taxes. (4) Provisions conferring the power of eminent domain. (5) Provisions exempting persons and property from taxation. (6) Provisions exempting property from the power of eminent domain. (7) Provisions decreasing the jurisdiction of a court of record. (8) Provisions enacted finally prior to September 1, 1937 which are in derogation of the common law."). But this is hardly an adoption of strict construction - that list is merely an exception to the directive that "[a]ll other provisions of a statute shall be liberally construed." 1 PA. CONS. STAT. § 1928 (2006). Rather, the list is an example of the rejection of strict construction, but not as a code-wide default rule.
78. S.D. CODIFIED LAWS § 2-14-12 (2004). Texas has a liberal construction provision, but it is in a subchapter that applies to civil statutes. TEX. GOV'T CODE ANN. §§ 312.001, 312.006 (Vernon 2005) ("The Revised Statutes are the law of this state and shall be liberally construed to achieve their purpose and to promote justice."). As a result, I did not count it towards rejecting strict construction or adopting liberal construction generally.
79. Coastal States Gas Producing Co. v. Pate, 309 S.W.2d 828, 831 (Tex. 1958).
80. See 3 SUTHERLAND, supra note 24, § 58:2 (7th ed. 2008) (stating that liberal and strict construction "meaningfully characterize attitudes," with "liberal" signifying "an interpretation which produces broader coverage or more inclusive application of statutory concepts," whereas, strict construction "limits the application of the statute by the words used").
81. WASH. REV. CODE § 1.12.010 (2008).
82. See Appendix A for citations supporting Tables 1-11.
83. See 1A SUTHERLAND, supra note 24, § 21:14 (6th ed. 2002) ("Where two or more requirements are provided in a section and it is the legislative intent that all of the requirements must be fulfilled in order to comply with the statute, the conjunctive 'and' should be used. Statutory phrases separated by the word 'and' are usually to be interpreted in the conjunctive. Where a failure to comply with any requirement imposes liability, the disjunctive 'or' should be used."); see, e.g., Members of Jamestown Sch. Comm. v. Schmidt 405 A.2d 16, 19-20 (R.I. 1979) (finding that where the Rhode Island Constitution required the "general assembly to promote public schools, and to adopt all means which they may deem necessary and proper to secure to the people the advantages and opportunities of education," the duty to promote public schools was independent of the duty to secure educational opportunities and, therefore, allowing students who were not enrolled in public schools to take advantage of busing also).
84. See 1A SUTHERLAND, supra note 24, § 21:8 (6th ed. 2002) ("When action is mandatory 'shall' should always be employed. When the action is permissive 'may' should be used."); see, e.g., Minor v. Mechanics' Bank, 26 U.S. 46, 60, 63 (1828) (holding that the statute incorporating Mechanics' Bank and providing "'that the capital stock of [Mechanics' Bank], may consist of 500,000 dollars'" did not require the bank to have 500,000 dollars capital because "it is not a fair construction . . . to interpret the terms 'may consist' into 'must consist'").
85. See 2A SUTHERLAND, supra note 24, § 47:15 (7th ed. 2007); see, e.g., Tyrrell v. State, 53 N.E. 1111, 1112-13 (N.Y. 1899) (interpreting a street cleaning statute that said that salaries "shall not exceed the following: . . . of the section foremen, one thousand dollars each; . . . of the hostlers, seven hundred and twenty dollars each, and extra pay for work on Sundays," the court read the comma between "each" and "and" to conclude that foremen were not entitled to Sunday extra pay).
86. The last antecedent rule limits provisos to the clause that immediately precedes it. 2A SUTHERLAND, supra note 24, § 47:33 (7th ed. 2007). In Bamhardt v. Thomas, 540 U.S. 20, 21-22 (2003), the statute at issue provided that a person was eligible for Social Security disability insurance benefits and Supplemental Security Income (SSI) "only if his physical or mental impairment or impairments [were] of such severity that he [was] not only unable to do his previous work but [could not], considering his age, education, and work experience, engage in any other kind of substantial gainful work which existled] in the national economy" (emphasis added). The Court held that the Social Security Administration can find a claimant not disabled where "she remains physically and mentally able to do her previous work, without investigating whether the work exists in significant numbers in the national economy" because of "the grammatical 'rule of the last antecedent' according to which a limiting clause or phrase (here, the relative clause 'which exists in the national economy') should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, 'any other kind of substantial gainful work')." Id. at 22, 26 (emphasis added). The last antecedent rule, however, can be overcome by ordinary usage. For instance, courts have applied the last antecedent rule multiple times to the aggravated identity theft statute, which punishes anyone who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document." 18 U.S.C. § 1028A (2006). One court concluded that "[s]ince the term 'knowingly' is immediately antecedent to the phrase 'transfers, possesses, or uses,' it must be read only to qualify those words."
87. United States v. Montejo, 353 F. Supp. 2d 643, 648 (E.D. Va. 2005). However, the Supreme Court arrived at a contrary result because "[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence." Flores-Figueroa v. United States, 129 S. Ct. 1886, 1890 (2009).
88. 2A SUTHERLAND, supra note 24, § 47:33 (7th ed. 2007).
89. "[B]ad grammar does not vitiate a statute if the legislative intent is clear." Id. § 47:1. This rule is related to the rule that "courts should be willing to revise scrivener's errors - obvious mistakes in the transcription of statutes into the law books." ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 829 (emphasis omitted).
90. MINN. STAT. § 645.18 (2008).
91. The Hawaii statute does not mention adding in words, HAW. REV. STAT. § 1-14 (1993), while the Georgia, Minnesota, Pennsylvania, and Texas statutes do, GA. CODE ANN. § 1-3-1(a) (2000 & Supp. 2009) ("A transposition of words and clauses may be resorted to when a sentence or clause is without meaning as it stands."); MINN. STAT. § 645.18 ("A transposition of words and clauses may be resorted to when a sentence is without meaning as it stands."); 1 PA CONS. STAT. § 1923(a) (2006) ("A transposition of words and clauses may be resorted to where a sentence is without meaning as it stands."); TEX. GOV'T CODE ANN. § 312.012(a) (Vernon 2005) ("If the sentence or clause is meaningless because of the grammatical error, words and clauses may be transposed to give the law meaning."). Rather than codify transposition, the Hawaii statute simply directs interpreters to ignore grammar when necessary: Interpreters should not "attend[] so much to the . . . strictly grammatical construction of the words." HAW. REV. STAT. § 1-14.
92. Expressly codified plain meaning rules, such as Connecticut's, might imply an aversion to the wordsmithing bad grammar rule, but in my view, plain meaning rules do not frontally assault the bad grammar rule. On the contrary, the plain meaning rule talks past the bad grammar rule. The plain meaning rule requires adherence to text where the meaning is clear and runs out in the face of ambiguity. By contrast, the bad grammar rule is triggered only by ambiguity or meaninglessness.
93. LA. REV. STAT. ANN. § 1:3 (2003). Louisiana, despite its Napoleonic nature, does not have a set of codified canons that is so unusual when compared with other states.
94. See, e.g., KY. REV. STAT. ANN. § 446.010(20), (29) (West 2006).
95. See, e.g., LA. REV. STAT. ANN. § 1:3.
96. Maryland has an interesting formulation that focuses on the meaning of "may not": "the phrase 'may not' or phrases of like import have a
97. 1A SUTHERLAND, supra note 24, § 21:14 (6th ed. 2002).
98. LA. REV. STAT. ANN. § 1:9 (2003).
99. HAW. REV. STAT. § 1-18 (1993).
100. Sutherland might, perhaps, find comfort that these and/or collapsing statutes are, at least, an accurate reflection of the interpretive world, in which "there has been, however, so great laxity in the use of these terms that courts have generally said that the words are interchangeable and that one may be substituted for the other, if consistent with the legislative intent." 1A SUTHERLAND, supra note 24 § 21:14 (6th ed. 2002).
101. Id.
102. 1 PA. CONS. STAT. § 1923 (2006).
103. S.D. CODIFIED LAWS § 2-14-8 (2004).
104. TEX. GOV'T CODE ANN. § 312.012(b) (Vernon 2005) ("Punctuation of a law does not control or affect legislative intent in enacting the law.").
105. Raymond B. Marcin, Punctuation and the Interpretation of Statutes, 9 CONN. L. REV. 227,240 (1977).
106. COLO. REV. STAT. § 2-4-214 (2008).
107. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 655 n.134 (1990) (paraphrasing a statement made by Justice Scalia: "[S]tatutory interpretation is a process of rationalizing the law-making those adjustments that coexisting texts require in order that the corpus of the law be coherent" (citing Justice Antonin Scalia, Speech on Use of Legislative History Delivered at Various Law Schools 9 (1985-1986) (transcript on file with the UCLA Law Review))).
108. U.S. Sav. Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (internal citation omitted);
109. see 2A SUTHERLAND, supra note 24, § 47:2 (7th ed. 2007). FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), articulates the rule in stronger terms and adds an important temporal component: "[T]he meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand." Id. at 133. At issue was whether the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 301-399a (2006), granted the Food and Drug Administration (FDA) jurisdiction to regulate tobacco products. The Court seasoned that "if tobacco products were within the FDA's jurisdiction, the Act would require the FDA to remove them from the market entirely." Id. at 143. A ban, however, "would contradict Congress' clear intent as expressed in its more recent tobacco-specific legislation. The inescapable conclusion is that there is no room for tobacco products within the FDCA's regulatory scheme. If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit" within the FDA's regulatory jurisdiction. Id.
110. 2A SUTHERLAND, supra note 24, § 46:5 n.10 (7th ed. 2007) ("A presumption exists that the legislature uses the same term consistently in different statutes."). A corollary to this presumption is the principle of meaningful variation - that where the legislature changes language between statutes that might otherwise be similar, an interpreter should consider that difference to be significant. See ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 833-35 ("'[W]here Congress includes particular language in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" (quoting Keene Corp. v. United States, 508 U.S. 200, 208 (1993))).
111. 2B SUTHERLAND, supra note 24, § 51:2 n.19, at 229 (7th ed. 2008) ("[T]wo statutes relating to the same general subject matter should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy . . . .").
112. ESKRIDGE, FRICKEY & GARRETT, supra note 26, app., at 390.
113. Id.
114. 2A SUTHERLAND, supra note 24, § 46:6 (7th ed. 2007);
115. see, e.g., Lowery v. Klemm, 845 N.E.2d 1124, 1128 (Mass. 2006) (rejecting an interpretation that "would require [the court] to ignore much of the definition of 'sexual harassment' provided in" Massachusetts law).
116. 2A SUTHERLAND, supra note 24, § 46:05, at 177 (7th ed. 2007) ("Where there is inescapable conflict between general and specific terms or provisions of a statute, the specific will prevail."); see, e.g., Richardson v. One 1972 GMC Pickup, 826 P.2d 1311, 1314 (Idaho 1992) ("While the words 'equipment of any kind' as defined in the forfeiture statute were arguably intended to incorporate a wide variety of items, we are unable to include firearms in this definition because of a specific statutory provision that directly provides for the confiscation and forfeiture of firearms.").
117. 2A SUTHERLAND, supra note 24, § 47:8, at 312-13 (7th ed. 2007) ("[W]here there is doubt concerning the extent of the application of the proviso on the scope of another provision's operation, the proviso is strictly construed."); see, e.g., In re Opinion of the Justices, 151 N.E. 680, 681 (Mass. 1926) ("It is a cardinal rule of interpretation that: '. . . the proviso is to be strictly construed . . . .'").
118. 2A SUTHERLAND, supra note 24, § 47:8, at 313-14 (7th ed. 2007) ("[T]he legislative purpose set forth in the purview of an enactment is assumed to express the legislative policy, and only those subjects expressly exempted by the proviso should be freed from the operation of the statute."); see, e.g., Pace v. Armstrong World Indus., Inc., 578 So. 2d 281, 285 (Ala. 1991) ("[W]e will restrict from the operation of § 6-5-410 only those actions that are expressly restricted . . . .").
119. 2A SUTHERLAND, supra note 24, § 47:3 (7th ed. 2007).
120. For instance, Iowa's Constitution provides: "Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." IOWA CONST. art. III, § 29.
121. 2A SUTHERLAND, supra note 24, § 47:3 (7th ed. 2007); see, e.g.Holy Trinity Church v. United States, 143 U.S. 457, 463 (1892) (interpreting the title, "An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories and the District of Columbia," the Court concluded that "[n]o one reading such a title would suppose that congress had in its mind any purpose of staying the coming into this country of ministers of the gospel").
122. Jurisdictions only defining specific terms subject to context were not classified as codifying a code-wide contextual inquiry. Although such provisions clearly privilege a contextual inquiry, such provisions only endorse context more locally with respect to those specific terms; they do not codify or reject contextual inquiry as a code-wide matter. See, e.g., 1 U.S.C. § 1 (2006) (specific word definitions are to be used "unless the context indicates otherwise"); NEB. REV. STAT. § 49-801 (Supp. 2008) (definitions of specific terms are to be used "[u]nless the context is shown to intend otherwise").
123. DEL. CODE ANN. tit. 1, § 303 (2001).
124. HAW. REV. STAT. § 1-15(1) (1993).
125. IOWA CODE § 4.1 (1999).
126. 1 PA. CONS. STAT. § 1932 (2006). For a definition of in pari materia, see infra note 178.
127. CONN. GEN. STAT. § 1-2z (2007).
128. MASS. GEN. LAWS ANN. ch. 4, § 6 (West 2006 & Supp. 2009); N.H. REV. STAT. ANN. § 21:1 (LexisNexis 2008); N.C. GEN. STAT. § 12-3 (2007); VT. STAT. ANN. tit. 1, § 101 (2003). See also R.I. GEN. LAWS § 43-3-2 (2005) (interpretive rules should be applied unless "repugnant to some other part of the statute").
129. See supra note 99 and accompanying text (citing sources describing the whole act rule as permitting reference to other statutes, including subsequent legislation).
130. See, e.g., HAW. REV. STAT. § 1-16 (1993) ("Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another.").
131. PETER BENSON MAXWELL, ON THE INTERPRETATION OF STATUTES 282 (Fred B. Rothman & Co. 1991) (1875).
132. For example, Louisiana provides that "[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." LA. REV. STAT. ANN. § 1:3 (2003).
133. S.D. CODIFIED LAWS § 2-14-11 (2004).
134. See, e.g., N.J. STAT. ANN. § 1:1-1 (West 1992) ("[W]ords and phrases shall be read and construed with their context . . . .").
135. See, e.g., Necanicum Inv. Co. v. Employment Dep't., 190 P.3d 368, 370 (Or. 2008) (describing "context" as "including the structure . . . of the statutory scheme as a whole"
136. (citing Astleford v. SAIF Corp., 874 P.2d 1329, 1333 (Or. 1994))).
137. IOWA CODE § 4.4 (1999).
138. MONT. CODE ANN. § 1-2-101 (2007).
139. Id. § 1-3-101 ("The maxims of jurisprudence set forth in . . . this chapter are intended not to qualify any of the other provisions of this code but to aid in their just application.")
140. Id. § 1-3-232.
141. Id. § 1-3-228.
142. MINN. STAT. § 645.08(3) (2008).
143. Id. § 645.26.
144. See rule against implied repeals infra text accompanying notes 285-89.
145. MINN. STAT. § 645.19; PA. CONS. STAT. § 1924 (2006).
146. MINN. STAT. § 645.19; PA. CONS. STAT. § 1924.
147. See infra text accompanying notes 329-30 (rule of liberal construction); see also supra text accompanying notes 69-73; infra note 327 (rejection of rule of strict constructionism).
148. WIS. STAT. ANN. § 990.001(6) (West 2007). Kansas has a statute that permits the reviser of statutes to "change descriptive-subject-word headings" and states that "[n]o change made . . . shall effect any change in the substantive meaning of the section." KAN. STAT. ANN. § 77-136 (1997). Because it does not describe the interpretive weight of any original section headings, I did not count this odd statute towards codifying or rejecting the common law canon.
149. Texas provides, in the same statute permitting the use of legislative history, that "[i]n construing a statute . . . a court may consider . . . title (caption)." TEX. GOV'T CODE ANN. § 311.023 (Vemon 2005).
150. Id. § 311.024.
151. 1 PA. CONS. STAT. § 1924. In determining whether or not to draw meaning from a title, a dispositive factor may be whether the title or section heading was added by the legislature as part of the statute or was added outside of the legislative process. The Pennsylvania provision, which refers to "[t]he title and preamble of a statute," appears to stress that the title was created by the legislature. Id. In some jurisdictions, however, the fact that a heading passed through the legislative process does not place it on equal footing as the rest of the law. See, e.g., UTAH CODE ANN. § 68-3-13 (2008) ("A short summary of each section, part, chapter, or title, called boldface, may be printed in numbered bills introduced in the Legislature. This boldface is not law; it is intended only to highlight the content of each section, part, chapter, or title for legislators. . . . The Office of Legislative Research and General Counsel is authorized . . . to change the boldface in the enrolling process so that it more accurately reflects the substance of each section, part, chapter, or title."); W. VA. CODE ANN. §§ 2-2-10(z), -12 (LexisNexis 2006) ("Chapter, article or section headings, headlines or headnotes of any act of the Legislature, whether in the act at the time of passage or inserted by the clerk of the House of Delegates in editing, compiling and publishing the acts of the Legislature, are hereby declared to be mere catchwords and shall not be deemed or construed to be titles of such chapters, articles or sections, or as any part thereof, or as indicating or expressing legislative intent or purpose.").
152. W. VA. CODE ANN. § 2-2-12.
153. See infra note 355.
154. N.Y. GEN. CONSTR. LAW § 110 (McKinney 2003).
155. CONN. GEN. STAT. § 1-2z (2007).
156. Sometimes these rules are included along with grammar rules because they respond to grammatical and syntactical meaning. See ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 829 (noting that grammar rules regarding singular and plural numbers and pronoun genders are rarely followed). I view these types of "substitution rules" as highly technical and more meaningful when isolated in a separate typology.
157. 2A SUTHERLAND, supra note 24, § 47:32 (7th ed. 2007).
158. Id. § 47:34.
159. 2B id. § 49:2 (7th ed. 2008).
160. But see United States v. Wilson, 503 U.S. 329, 333 (1992) ("[U]se of a verb tense is significant in construing statutes.").
161. See, e.g., Upton v. Santa Rita Mining Co., 89 P. 275, 282 (N.M. 1907) ("[I]n the conflict between a number written out and in figures, the latter will be rejected and the former control . . . .").
162. Touching off a heated exchange, Marguerite E. Ritchie, in Alice Through the Statutes, 21 MCGILL L.J. 685 (1975), explores the implications of the lack of absolute gender identity. She notes that "women, demanding to be treated as humans, have protested constantly about the use of male terms to apply to both sexes" and that "legislation which defines the male as including the female" thereby appears "to place a lower value on the latter." Id. at 685-86.
163. Ritchie argues that mitigating phrases such as "'unless a contrary intention appears,'" merely permit "equality . . . purport[edly] give[n] with one hand" to be "taken away by the other" and, therefore, "women have no guarantee of any kind that any provision . . . which grants rights to the male, will be interpreted to confer the same rights on women." Id. at 689; see also E.A. Driedger, Are Statutes Written for Men Only?, 22 MCGILL. L.J. 666, 666, 671 (1976) (responding that "Ritchie's problem is not one that was created or is curable by legislative draftsmen, male or female," but rather that "[t]he problem lies with pronouns"; according to her, pronouns are "a defect in the English language" and an amendment will not solve the problem because "[w]e would still be stuck" with language as it exists);
164. Marguerite E. Ritchie, The Language of Oppression - Alice Talks Back, 23 MCGILL L.J. 535, 535-36, 542-43 (1977) (criticizing Dreidger's article for failing "to listen when women cry out against the injustices which they suffer" because "[t]he law has, in fact, operated as a 'con' game, in which male terms include women for the purposes of pains and penalties but not for rights and privileges," and proposing the use of "it" as a gender neutral substitute or "[t]he invention of a new series of pronouns"). None of the statutes reviewed here have followed Ritchie's suggestions.
165. 1 U.S.C. § 1 (2006).
166. ALASKA STAT. § 01.10.050 (2008); see, e.g., MASS. GEN. LAWS ANN. ch. 4, § 6 (West 2006) ("[W]ords of one gender may be construed to include the other gender and the neuter.").
167. ALA. CODE § 1-1-2 (LexisNexis 1999).
168. 1 U.S.C. § 1; see, e.g., N.Y. GEN. CONSTR. LAW § 48 (McKinney 2003) ("Words in the present tense include the future.").
169. TENN. CODE ANN. § 1-3-104(a) (2003).
170. WIS. STAT. ANN. § 990.001(3) (West 2007). The future perfect tense is used to refer to an event that is expected to occur before another event but that may not have happened yet. For example, the future perfect tense is often used when describing statutory prerequisites: "No person shall be eligible for appointment to the following titles until he shall have completed the following period of service as a uniformed member of the state police: sergeant, five years; lieutenant eight years; captain, twelve years; and major, fourteen years."
171. MASS. GEN. LAWS ANN. ch. 22C, § 28 (West 2006) (emphasis added).
172. ALA. CODE § 1-1-2 ("Words used in this Code in the past or present tense include the future, as well as the past and present"); ALASKA STAT. § 01.10.050 (2008) ("Words in the present tense include the past and future tenses, and words in the future tense include the present tense."). Where an interpreter must construe tense, and the legislature has not made its own rule clear, judges should take great care in choosing and justifying interpretations that the present tense includes the past tense, especially in light of the presumption against retroactivity (another widely codified canon), see infra text accompanying notes 268-72, which looms in the background whenever legislation is applied to the past.
173. ALA. CODE § 1-1-2; see, e.g., 1 U.S.C. § 1 ("[W]ords importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular . . . .").
174. KAN. STAT. ANN. § 77-201 (Supp. 2008).
175. OHIO REV. CODE ANN. § 1.46 (LexisNexis 1990).
176. See 1A SUTHERLAND, supra note 24, § 31:6 (6th ed. 2002).
177. See supra Table 1 and text accompanying note 74.
178. See MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 229, 231 (1994) ("[A]n agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear" and an agency cannot effect "a fundamental revision of the statute").
179. "The weight [of deference given to an agency interpretation] will depend upon the thoroughness evident in its 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." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The Supreme Court has continued to use this general deference canon as a common law tool, even after Chevron.
180. See United States v. Mead Corp., 533 U.S. 218, 234 (2001) ("Chevron did nothing to eliminate Skidmore's holding.").
181. "An administrative agency's interpretation of its own regulation is controlling 'unless it is plainly erroneous or inconsistent with the regulation.'" 1A SUTHERLAND, supra note 24, § 31:6 (6th ed. 2002); see, e.g.. Sawyer v. Cen. La. Elec. Co., 136 So. 2d 153, 156 (La. Ct. App. 1962) ("An administrative body can interpret its own rules and such interpretation becomes a part of the rule.").
182. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984) ("If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.").
183. I focused on provisions applying to the entire code, but not those applying only to the administrative section, which are likely codified in a particular subject matter section. A fuller exploration of this phenomenon would need to examine both.
184. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1098-1100 (2008) (identifying a continuum of deference with seven discrete types of deference: (1) Curtiss-Wright deference (super-strong deference to executive interpretations); (2) Seminole Rock deference (strong deference to an agency's interpretations of its own regulations); (3) Chevron deference (two-step approach - step 1: is the statute ambiguous? step 2: If so, defer to reasonable agency interpretation of the statute); (4) Beth Israel deference (defer to reasonable agency interpretations consistent with a statute); (5) Skidmore deference (defer to agency interpretations based on consideration of expertise, continuity, persuasiveness, and other factors); (6) Consultative (Skidmore-Lite) deference (outcome of case is weighted towards agency-generated materials, but where deference language in opinion is absent); (7) Anti-deference (presumption against agency interpretation in criminal cases and in some cases where agency interpretation raises serious constitutional concerns)).
185. COLO. REV. STAT. § 2-4-203(f) (2008).
186. MINN. STAT. § 645.16 (2008). I refer to these rather opaque directives as "generic considerative deference."
187. TEX. GOV'T CODE ANN. § 311.023 (Vemon 2005).
188. The generic deference canon would seem to follow the most flexible form of deference identified by scholars - Skidmore deference. See supra note 163 and accompanying text and note 167. Skidmore deference is accorded to an agency according to the "thoroughness evident in its 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." Skidmore v. Swift, 323 U.S. 134,140 (1944).
189. See supra text accompanying notes 65-68.
190. See supra note 167.
191. See United States v. Mead Corp., 533 U.S. 218, 239 (2001) (Scalia, J., dissenting).
192. Id. at 241, 243.
193. Justice Scalia may be right where the federal government is concerned. Congress, after all, has no general deference rule in its statutory construction chapter. But the background preferences of the states need to be dispatched before Skidmore can be wholly rejected. Justice Scalia may have begun down this path in his Mead dissent, where he started to distinguish the federal government from the states. The federal government may present a special case because of its size and scope. State agencies may be less pervasive in the lives of state citizens than federal agencies. See id. at 250 ("It was possible to live with the indeterminacy of Skidmore deference in earlier times. But in an era when federal statutory law administered by federal agencies is pervasive, and when the ambiguities (intended or unintended) that those statutes contain are innumerable, totality-of-the-circumstances Skidmore deference is a recipe for uncertainty, unpredictability, and endless litigation.").
194. See supra text accompanying note 119.
195. The in pari materia rule directs interpreters to use other statutes and provisions employing the same terminology, or treating the same issue, to illuminate the statute being interpreted. ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 1039.
196. 2B SUTHERLAND, supra note 24, § 49:9 (7th ed. 2008); see, e.g., Hause v. City of Tucson, 19 P.3d 640, 643 (Ariz. Ct. App. 2001) ("It is universally the rule that where a statute which has been construed by a court of last resort is reenacted in the same or substantially the same terms, the legislature is presumed to have placed its approval on the judicial interpretation given and to have adopted such construction and made it a part of the reenacted statute."
197. (quoting Madrigal v. Indus. Comm'n, 210 P.2d 967, 971 (Ariz. 1949))).
198. 2B SUTHERLAND, supra note 24, § 49:9 (7th ed. 2008).
199. Id. § 49:10; see, e.g., Flood v. Kuhn, 407 U.S. 258, 283-84 (1972) ("We continue to be loath . . . to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively").
200. Berry v. Branner, 421 P.2d 996, 998 (Or. 1966) (quoted in 2B SUTHERLAND, supra note 24, § 49:10, at 137-40 (7th ed. 2008)).
201. 2 SUTHERLAND, supra note 24, § 34:6 (7th ed. 2009).
202. Id.
203. See ESKRIDGE, FRICKEY & GARRETT, supra note 26, at 286 (describing the rule that stare decisis is stronger when applied to judicial decisions involving statutes than when applied to judicial decisions involving the common law because "although the legislature can, by ordinary legislation, override both common law decisions and decisions interpreting statutes, the legislature has greater responsibility to monitor the latter (where the courts have interpreted a legislative product) than the former (where, arguably, courts have a larger, ongoing responsibility to monitor a judicial product the common law)").
204. 2B SUTHERLAND, supra note 24, § 52:2 (7th ed. 2008); see Zerbe v. State, 578 P.2d 597, 598 (Alaska 1978) ("As there is no Alaska case law interpreting the statute here in question, we turn for guidance to federal cases construing the similar federal provisions.").
205. See supra Table 3 and text accompanying note 99.
206. See supra note 117 and accompanying text.
207. See, e.g., FLA. STAT. ANN. § 1.04 (West 2004) ("Acts passed during the same legislative session and amending the same statutory provision are in pari materia, and full effect should be given to each, if that is possible."); PA. CONS. STAT. § 1932 (2006) ("Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things . . . [S]tatutes in pari materia shall be construed together, if possible, as one statute.").
208. COLO. REV. STAT. § 2-4-203 (2008).
209. 1 PA. CONS. STAT. § 1922; see also MINN. STAT. § 645.17(4) (2008) (using substantially similar language).
210. N.M. STAT. § 12-2A-20(B)(7) (2005).
211. See, e.g., MINN. STAT. § 645.17; N.M. STAT. § 12-2A-20; PA. CONS. STAT. § 1922.
212. MONT. CODE ANN. § 1-3-201 (2007).
213. Id. § 1-3-101.
214. Id. § 1-2-102; see also id § 1-3-225 ("Particular expressions qualify those which are general.").
215. MINN. STAT. § 645.40; see also 1 PA. CONS. STAT. § 1972 ("A statute shall not be deemed repealed because the reason for its passage no longer exists.").
216. MONT. CODE ANN. § 1-3-202.
217. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
218. WYO. STAT. ANN. § 8-1-103(a)(vii) (2009).
219. N.M. STAT. § 12-2A-20(B)(1) (2005). The typical formulation is at id. § 12-2A-18 ("A statute that is intended to be uniform with those of other states is construed to effectuate that purpose with respect to the subject of the statute."); see also 1 PA. CONS. STAT. § 1927 ("Statutes uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them.").
220. 2A SUTHERLAND, supra note 24, § 48.1 (7th ed. 2007).
221. See, e.g., SCALIA, supra note 49, at 29-37 (noting that legislatures likely had no idea of the issue facing the court, that legislative intent is likely to encompass the views of only a limited number of senators or representatives, and that it is not certain that members of the legislature even read committee reports before voting).
222. Though use of legislative history in the Supreme Court may be on the decline, it is still featured as a tool of statutory interpretation. 2A SUTHERLAND, supra note 24, § 48:1, at 540-41 (7th ed. 2007);
223. see also James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 BERKELEY J. EMP. & LAB. L. 117, 117-23 (2008) (analyzing more than 320 majority opinions authored by eight liberal Justices of the Court between 1969 and 2006, and finding a positive relationship between reliance on legislative history and pro-employer decisions, but also concluding that, in the face of Justice Scalia's opposition to legislative history, liberal Justices avoided the use of legislative history for pro-employer decisions that Justice Scalia joined);
224. James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History?: Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 JUDICATURE 220, 222 (2006) (reliance on legislative history in majority opinions in the area of workplace law "declined from 50 percent in the 1986 term to 33 percent during the following three terms (1987-89) and to 17 percent for the 1990-92 terms. . . . [T]hen [it] leveled off at 23 percent for almost a decade before rebounding to 37 percent," then rose to 43 percent for the 2002 and 2003 Terms, but dropped to 17 percent for the 2004 Term).
225. 2A SUTHERLAND, supra note 24, § 48:18 (7th ed. 2007).
226. Id. § 48:6, at 573-75.
227. Id. § 48:13.
228. Mont. Wilderness Assoc. v. U.S. Forest Serv., 655 F.2d 951, 955 n.7 (9th Cir. 1981);
229. cf. ARTHUR CONAN DOYLE, Silver Blaze, in THE ADVENTURES OF SHERLOCK HOLMES 534 (Edgar W. Smith ed., Heritage Press 1981) (1892) ("[Inspector Gregory:] 'Is there any point to which you would wish to draw my attention?' [Holmes:] 'To the curious incident of the dog in the night-time.' [Gregory:] "The dog did nothing in the night-time.' [Holmes:] 'That was the curious incident.'").
230. 440 U.S. 668, 669-77, 681-82 (1979).
231. 2B SUTHERLAND, supra note 24, § 49:1 (7th ed. 2008).
232. See ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 1017 (expressing skepticism about the reliance on statements made after enactment because such statements were not available during the enactment process).
233. N.D. CENT. CODE § 1-02-39(3) (2008).
234. HAW. REV. STAT. § 1-15(2) (1993).
235. N.M. STAT. § 12-2A-20(c)(2) (2005).
236. CONN. GEN. STAT. § 1-2z (2007). If Connecticut's legislature wanted to exclude extratextual sources of meaning, they certainly would have done so here. It manifestly did not. As a category, extratextual sources at the very least includes legislative history (and may include all the other extrinsic legislative sources in Table 7, though I did not count these canons as codified for lack of specificity in the statute). Thus in Connecticut, legislative history may be considered under certain circumstances
237. TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).
238. 1 PA. CONS. STAT. § 1939 (2006).
239. Two major criticisms of the use of legislative history are related to its cost and scope. Researching it imposes an onerous cost on parties that undertake to assemble and analyze the universe of legislative information, while its indeterminate size and variety makes it impossible to police for manipulative content. See SCALIA, supra note 49, at 36; see also Wallace v. Christensen, 802 F.2d 1539, 1559 (9th Cir. 1986) (Kozinski, J., concurring in the judgment) (arguing that the majority relies too extensively on legislative history). Both concerns can be remedied through statutes similar to Pennsylvania's.
240. OR. REV. STAT. ANN. § 174.020(3) (West 2007).
241. Id.
242. See supra text accompanying notes 209-11.
243. IOWA CODE § 4.6 (1999). Georgia's less specific, but more dramatic, codification of this canon refers to the original problem confronting the legislature and its solution. GA. CODE ANN. § 1-3-1(a) (2000 & Supp. 2009) ("In all interpretations of statutes, the courts shall. . . keep[] in view at all times the old law, the evil, and the remedy.").
244. TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).
245. See, e.g., MINN. STAT. § 645.16 (2008); 1 PA. CONS. STAT. § 1921 (2006).
246. MONT. CODE ANN. § 1-3-226 (2007).
247. "The term 'legislative history' is mostly used to refer to the internal legislative pre-history of a statute - the institutional progress of a bill to enactment and the deliberation accompanying that progress," but "[s]ometimes . . . the legislature . . . will continue to talk about the statute after enactment." ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 937, 1013. See, e.g., Mont. Wilderness Ass'n v. U.S. Forest Serv., 655 F.2d 951, 957 (9th Cir. 1981) (changing previous opinion on rehearing because the appellees "uncovered subsequent legislative history that, given the closeness of the issue, [was] decisive"); supra text accompanying note 208.
248. See supra note 211.
249. N.M. STAT. § 12-2A-20(B)(3) (2005).
250. See TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).
251. 2 SUTHERLAND, supra note 24, § 44A:19 (7th ed. 2009).
252. See Trevor W Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1203 (2006).
253. See, e.g., Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71 (arguing that avoidance may result in judicial interpretations of statutes that are not aligned with the legislature's intentions).
254. 2 SUTHERLAND, supra note 24, § 44A:19 (7th ed. 2009).
255. See 3 SUTHERLAND, supra note 24, § 65A:7 (7th ed. 2008) (referencing a "[p]resumption[] in favor of . . . noninterference with executive power in foreign affairs . . . and [a p]resumption against interference with traditional powers of the President").
256. 2B id. § 50:2 (7th ed. 2008) ("[Legislation creating new rights or benefits has received enforcement limited by the inherent powers of the courts of equity.").
257. See, e.g., Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970) (explaining that injury in fact occurs only when there is a "case" or "controversy," and denial of concrete interest protected by the statute).
258. See 1 SUTHERLAND, supra note 24, § 3:2 (6th ed. 2002 & Supp. 2006).
259. 2A id. § 48A:7 (7th ed. 2007).
260. 2 id. § 44A:19, at 976 (7th ed. 2009).
261. 543 U.S. 220, 226 (2005) (Stevens, J., delivering opinion of the Court in part).
262. See id. at 259 (Breyer, J., delivering opinion of the Court in part) (excising those parts that made enhancements mandatory on the basis of judicially found facts and the standard of appellate review).
263. See id. at 264-65.
264. For example, Professor Schauer advocates for the abandonment of the avoidance canon, inter alia, because the judicial invalidation of legislation is "less unauthorized by the people than . . . in the past," and he claims that the "imbalance" between "judicial intrusion of rewriting an Act" and the "judicial intrusion of invalidating an Act" is far less. Schauer, supra note 232, at 96. However, codifying the avoidance canon provides at least some compelling evidence that, contrary to Schauer's claim, legislatures may prefer the "judicial intrusion of rewriting an Act" to the "judicial intrusion of invalidating an Act." Id.
265. N.M. STAT. § 12-2A-18 (2005).
266. MINN. STAT. § 645.17(3) (2008); see also N.D. CENT. CODE § 1-02-38 (2008) ("In enacting a statute, it is presumed that . . . [c]ompliance with the constitutions of the state and of the United States is intended."); PA. CONS. STAT. § 1922 (2006) ("In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: . . . . That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth."); TEX. GOV'T CODE ANN. § 311.021 (Vernon 2005) ("In enacting a statute, it is presumed that . . . compliance with the constitutions of this state and the United States is intended . . . .").
267. See supra notes 230-31 and accompanying text.
268. See Morrison, supra note 231, at 1229-38 (describing the avoidance canon as a self-protective device).
269. Ironically, such a canon might actually impair the legislature in the long term by strengthening agencies and broadening their discretion.
270. Under limited circumstances, however, severability can work in unexpected ways to limit legislative power. For instance, in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), Congress delegated power to the Attorney General but tried to reserve a legislative veto over the delegation of power. It included a severability provision in the legislation. The Court, however, construed the severability provision to excise the legislative veto provision without excising the provision delegating power to the Attorney General.
271. ALA. CODE § 1-1-16 (LexisNexis 1999).
272. OKLA. STAT. ANN. tit. 75, § 11a (West 2008); see also OR. REV. STAT. ANN. § 174.040 (West 2007) (using substantially the same language).
273. CONN. GEN. STAT. § 1-3 (2007); see, e.g., MICH. COMP. LAWS ANN. § 8.5 (West 2004) ("If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.").
274. GA. CODE ANN. § 1-1-3 (2000).
275. MASS. GEN. LAWS. ANN. ch. 4, § 6 (West 2006); see also MD. CODE ANN. art. 1, § 23 (LexisNexis 2005) (provisions are severable unless otherwise provided by statute); MINN. STAT. § 645.20 (2008) (same); MISS. CODE ANN. § 1-3-77 (2005) (all provisions are severable unless an act clearly sets forth a "contrary intent").
276. NEV. REV. STAT. § 0.020 (2007). I did not count this statute as rejecting expressio unius because it is specific to severability.
277. 3 SUTHERLAND, supra note 24, § 65A:12, at 773 (7th ed. 2008).
278. See id. § 65A:7, at 684-85.
279. See 3B id. § 77A:26, at 983-98 (6th ed. 2003) (discussing the requirement that Congress enact statutes to permit pre-enforcement challenges and suggesting that there is a background presumption against pre-enforcement challenges).
280. See 3 CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE § 13.22 (2d ed. 1997) (observing that constitutional claims "seeming substantial on their face" or that cannot "be remedied by a post-deprivation review in the courts" create an exception to the exhaustion requirement).
281. ESKRIDGE, FRICKEY & GARRETT, supra note 8, app. B, at 23.
282. Id.
283. Id.
284. 2 SUTHERLAND, supra note 24, § 41:2, at 386 (7th ed. 2009).
285. U.S. CONST, art. I, § 9, cl. 3.
286. 2 SUTHERLAND, supra note 24, § 41:2, at 393 (7th ed. 2009).
287. For example, where a statute is not expressly retroactive, the courts will decline to apply a law retroactively where a "manifest injustice" - identified by examining three factors: "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights" - would result. Bradley v. School Bd. of Richmond, 416 U.S. 696, 716-17 (1974);
288. see also United States ex rel. McCoy v. Cal. Med. Rev., Inc., 723 F. Supp. 1363, 1368 (N.D. Cal. 1989) (same); SUTHERLAND, supra note 24, § 41:2, at 393 (7th ed. 2009) ("The general rule that courts favor prospective application of statutes is founded on the premise that fundamental fairness requires that citizens be given notice. . . .).
289. For example, the rule of lenity, which requires ambiguity in penal statutes to be resolved against the government, see 3 SUTHERLAND, supra note 24, § 59:4, at 182-82 (7th ed. 2008), may be codified in the local section of the code governing criminal law. See, e.g., FLA. STAT. ANN. § 775.021 (West 2004) (adopting the "principle of lenity" in Title XLVI ("Crimes") for Florida's penal statutes by stating that the "provisions of this code and offenses defined by other statutes shall be strictly construed" such that "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused").
290. ALASKA STAT. § 01.10.090 (2008); see, e.g., KY. REV. STAT. ANN. § 446.080 (West 2006) ("No statute shall be construed to be retroactive, unless expressly so declared."); N.D. CENT. CODE § 1-02-10 (2008) ("No part of this code is retroactive unless it is expressly declared to be so.").
291. The following codified canons require a statute's retroactive effect to be express, obvious, plain, manifest, or clear. ALASKA STAT. § 01.10.090 (2008); ARIZ. REV. STAT. ANN. § 1-244 (2002); CAL. CIV. CODE § 3 (West 2007); HAW. REV. STAT. § 1-3 (1993); IDAHO CODE ANN. § 73-101 (2006); IOWA CODE § 4.5 (1999); KY. REV. STAT. ANN. § 446.080(3) (West 2006); LA. REV. STAT. ANN. § 1:2 (2003 & Supp. 2009); MINN. STAT. § 645.21 (2008); MONT. CODE ANN. § 1-2-109 (2007); N.M. STAT. § 12-2A-8 (2005) (This statute requires an express statement of retroactivity or that retroactive effect be required from context. Because many of the other retroactivity rules are subject to context, this is not an aberration.); N.D. CENT. CODE § 1-02-10 (2008 & Supp. 2009); OHIO REV. CODE ANN. § 1.48 (LexisNexis 1990); PA. CONS. STAT. § 1926 (2006); S.D. CODIFIED LAWS § 2-14-21 (2004 & Supp. 2009); TEX. GOV'T CODE ANN. § 311.022 (Vernon 2005); UTAH CODE ANN. § 68-3-3 (2008); W. VA. CODE ANN. § 2-2-10(bb) (LexisNexis 2006).
292. COLO. REV. STAT. § 2-4-202 (2008). New Mexico, Ohio, and Pennsylvania link the corollary to the root proposition. N.M. STAT. § 12-2A-8 (2005) ("A statute or rule operates prospectively only unless the statute or rule expressly provides otherwise or its context requires that it operate retrospectively."); OHIO REV. CODE ANN. § 1.48 (LexisNexis 1990) ("A statute is presumed to be prospective in its operation unless expressly made retrospective."); PA. CONS. STAT. § 1926 (2006) ("No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.").
293. See, e.g., WYO. STAT. ANN. § 8-1-108 (2009) ("Every law takes effect ninety (90) days after the adjournment of the session of the legislature at which it was enacted, unless a different effective date is specified therein.").
294. HAW. REV. STAT. § 1-3 (1993); see also GA. CODE ANN. § 1-3-5 (2000) (providing that laws do not "ordinarily . . . have a retrospective operation"); MINN. STAT. § 645.21 (2008) ("No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature."); S.D. CODIFIED LAWS § 2-14-21 (2004) (providing that in the absence of an express retroactivity provision, laws can only be construed as retroactive if "such intention plainly appears").
295. 2 SUTHERLAND, supra note 24, § 41:2, at 388 (7th ed. 2009).
296. Because other, more specific canons were not included in code-wide interpretive rule sections and were more likely to be found in subject-matter specific sections, I did not include them. These canons also respond to deficiencies in the legislative process and the onerous task of adding provisions to account for the legal effects of a statute. They include the following: the presumption that a court will not apply a sanction for failure to follow timing provisions where the statute specifies no sanctions; narrow interpretation of exemptions from taxation (this is a more specific iteration of the "narrow exceptions" codified canon described previously, supra Table 3 and text accompanying notes 133-35); the strong presumption in favor of enforcing arbitration agreements and the rule favoring arbitration of statutory claims (which are both more likely to be addressed in more specific chapter sections rather than codified as interpretive rules applying to the whole code); and the common law canon favoring strict construction of statutes authorizing appeals (which is a more specific iteration of the strict construction canon, which many legislatures have rejected, see supra Table 1 and text accompanying notes 69-73).
297. 1A SUTHERLAND, supra note 24, § 23:9 (6th ed. 2002); id. § 34:3 (7th ed. 2009). In United States v. Borden Co., 308 U.S. 188, 198 (1939), the Supreme Court stated that "[i]t is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible."
298. 1A SUTHERLAND, supra note 24, § 23:9, at 469 (6th ed. 2002).
299. Id. at 462-64.
300. Id. § 23:32.
301. Id. § 28:13 ("[A]s a general rule, statutes enacted as mere code revision are presumed not to contain substantive changes amounting to a repeal, unless the intent to make such changes is clearly manifested.").
302. See 2 id. § 36:7, at 73 (7th ed. 2009).
303. Cf. 2A id. § 48A:7, at 755-59 (7th ed. 2007).
304. See City of Lancaster v. Fairfield County Budget Comm'n, 699 N.E.2d 473, 477 (Ohio 1998) (Lundberg Stretton, J., dissenting) (dissenting because the majority's construction "ignores a more practical, common-sense interpretation" and does not permit "feasible execution" of the statutes at issue).
305. 2A SUTHERLAND, supra note 24, § 45:9 (7th ed. 2007); see also United Steelworkers of Am v. Weber, 443 U.S. 193, 201-02 (1979).
306. "Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose." Lon Fuller, The Case of the Spelucean Explorers: In the Supreme Court of Newgarth, 4300, 62 HARV. L. REV. 616, 624 (1949).
307. COLO. REV. STAT. § 2-4-206 (2008).
308. See, e.g., MD. CODE ANN. art. 1, § 17 (LexisNexis 2005) ("If two or more amendments to the same section or subsection of the Code are enacted at the same or different sessions of the General Assembly, and one of them makes no reference to and takes no account of the other or others, the amendments shall be construed together, and each shall be given effect, if possible and with due regard to the wording of their titles. If the amendments are irreconcilable and it is not possible to construe them together, the latest in date of final enactment shall prevail."); IOWA CODE § 4.11 (1999) ("If amendments to the same statute are enacted at the same or different sessions of the general assembly, one amendment without reference to another, the amendments are to be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment by the general assembly prevails."); OHIO REV. CODE ANN. § 1.52(B) (LexisNexis 1990) ("If amendments to the same statute are enacted at the same or different sessions of the legislature, one amendment without reference to another, the amendments are to be harmonized, if possible, so that effect may be given to each. If the amendments are substantively irreconcilable, the latest in date of enactment prevails. The fact that a later amendment restates language deleted by an earlier amendment, or fails to include language inserted by an earlier amendment, does not of itself make the amendments irreconcilable. Amendments are irreconcilable only when changes made by each cannot reasonably be put into simultaneous operation.").
309. See, e.g., Branch v. Smith, 538 U.S. 254, 273 (2003).
310. ARIZ. REV. STAT. ANN. § 1-245 (2002).
311. N.M. STAT. § 12-2A-10(C) (2005); see also 1 PA. CONS. STAT. § 1971(b) (2006) ("Whenever a general statute purports to establish a uniform and mandatory system covering a class of subjects, such statute shall be construed to supply and therefore to repeal pre-existing local or special statutes on the same class of subjects.").
312. 1 U.S.C. § 108 (2006) ("Whenever an Act is repealed, which repealed a former Act, such former Act shall not thereby be revived, unless it shall be expressly so provided.").
313. COLO. REV. STAT. § 2-4-302 (2008).
314. See, e.g., FLA. STAT. ANN. § 2.04 (West 2004) ("No statute of this state which has been repealed shall ever be revived by implication; that is to say, if a statute be passed repealing a former statute, and a third statute be passed repealing the second, the repeal of the second statute shall in no case be construed to revive the first, unless there be express words in the said third statute for this purpose."); KY. REV. STAT. ANN. § 446.100 (West 2006) ("(1) A repealed section without a delayed effective date is revived when the section or act that repealed it is repealed by another statute enacted at the same session of the General Assembly. (2) A repealed section with a delayed effective date is revived by the enactment of a repealer of the section or act that repealed it at the same or any subsequent session of the General Assembly as long as it takes effect prior to the effective date of the original repealer. . . . (5) No other action of the General Assembly repealing a repealer or an amendment shall have the effect of reviving the original language of the repealer or amendment as the case may be.").
315. See, e.g., 1 U.S.C. § 108 (2006) ("Whenever an Act is repealed, which repealed a former Act such former Act shall not thereby be revived, unless it shall be expressly so provided."); D.C. CODE § 45-501 (2001) ("As a rule of statutory interpretation, in enacting a statute which includes among its provisions the repeal of a previously enacted repeal (including, the repeal of a proviso or an exception), it is not the intention of the Council of the District of Columbia to revive the statute or part thereof which was previously repealed unless such intention to revive the previously repealed statute is specifically included in the language of the statute repealing the previous repealer."); HAW. REV. STAT. § 1-8 (1993) ("The repeal of any law shall not revive any other law which has been repealed, unless it is clearly expressed.").
316. OHIO REV. CODE ANN. § 1.30(A) (LexisNexis 1990).
317. N.J. STAT. ANN. § 1:1-3 (West 1992).
318. Constitutional provisions may also bear on interpretive rules. For example, one provision in the Massachusetts Constitution states that "[e]very subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character." MASS. CONST. art. XI. However, constitutional provisions were not the subject of this study. See supra note 35.
319. MONT. CODE ANN. § 1-3-214 (2007).
320. COLO. REV. STAT. § 2-4-201 (2008).
321. CONN. GEN. STAT. § 1-2z (2007) ("The meaning of the statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.").
322. MONT. CODE ANN. § 1-3-222.
323. See CONN. GEN. STAT. § 1-2z.
324. 2A SUTHERLAND, supra note 24, § 45:9, at 62 (7th ed. 2007) ("Where legislative source materials fail to supply a clearly dispositive answer about how an issue should be decided, the principle of legislative sovereignty allows a court to take extra-legislative as well as legislative source materials into account in deciding what disposition conforms best to public policy.")
325. Id. at 59.
326. N. Y. GEN. CONSTR. LAW § 110 (McKinney 2003).
327. COLO. REV. STAT. § 2-4-203 (2008).
328. IDAHO CODE ANN. § 73-102 (2006).
329. HAW. REV. STAT. § 1-15 (1993).
330. GA. CODE ANN. § 1-3-1 (2000 & Supp. 2009).
331. TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).
332. ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 921.
333. 3 SUTHERLAND, supra note 24, § 62:1 (7th ed. 2008).
334. 2A SUTHERLAND, supra note 24, § 45:12 (7th ed. 2007).
335. ESKRIDGE, FRICKEY & GARRETT, supra note 8, at 921. One should take care not to overemphasize this point, however, with respect to the states, because state judiciaries remain active in the development of the common law.
336. 2A SUTHERLAND, supra note 24, § 48A:8, at 765 (7th ed. 2007).
337. This canon is reflected in the public/private act distinction, and in the tradition of construing public acts liberally and private acts strictly. 2 SUTHERLAND, supra note 24, § 43:4 (7th ed. 2009).
338. This was the result of the conflict between law and equity in the English legal system.
339. 3 SUTHERLAND, supra note 24, § 61:1, at 334 (7th ed. 2008).
340. COLO. REV. STAT. § 2-4-203 (2008) (courts "may consider. . . [t]he common law or former statutory provisions, including laws upon the same or similar subjects"); see also N.D. CENT. CODE § 1-02-39 (2008) (courts "may consider. . . [t]he common law or former statutory provisions, including laws upon the same or similar subjects"); OHIO REV. CODE ANN. § 1.49 (LexisNexis 1990) (courts "may consider. . . [t]he common law or former statutory provisions, including laws upon the same or similar subjects").
341. TEX. GOV'T CODE ANN. § 311.023(4) (Vernon 2005) ("In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the . . . common law . . . .").
342. CAL. CIV. CODE § 5 (West 2007).
343. FLA. STAT. ANN. § 2.01 (West 2004); see also HAW. REV. STAT. § 1-1 (1993) ("The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by me written laws of the United States or of the State."); IDAHO CODE ANN. § 73-116 (2006) ("The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state.").
344. GA. CODE ANN. § 1-3-8 (2000); see also MINN. STAT. § 645.27 (2008) ("The state is not bound by the passage of a law unless named therein, or unless the words of the act are so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature.").
345. TEX. GOV'T CODE ANN. § 311.034 (Vernon 2005 & Supp. 2008).
346. Id. § 312.006; see, e.g., CAL. CIV. CODE § 4 ("The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code."); IDAHO CODE ANN. § 73-102 ("The rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to these compiled laws.").
347. ARK. CODE ANN. § 1-2-202 (2008); see, e.g., COLO. REV. STAT. § 2-4-212 (2008) ("All general provisions, terms, phrases, and expressions, used in any statute, shall be liberally construed, in order that the true intent and meaning of the general assembly may be fully carried out."); 5 ILL. COMP. STAT. 70/1.01 (2008) ("All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out.").
348. KY. REV. STAT. ANN. § 446.080 (West 2006).
349. N.M. STAT. § 12-2A-18(C) (2005).
350. See infra Table 11 and Appendix A. The New Mexico statute, which has all the hallmarks of liberal construction - a statute is to be construed to "give effect to its objective and purpose" and "give effect to its entire text" - with the exception of the word "liberal," is classified as having codified this canon. N.M. STAT. § 12-2A-18.
351. 1 PA. CONS. STAT. § 1928 (2006) ("(1) Penal provisions. (2) Retroactive provisions. (3) Provisions imposing taxes. (4) Provisions conferring the power of eminent domain. (5) Provisions exempting persons and property from taxation. (6) Provisions exempting property from the power of eminent domain. (7) Provisions decreasing the jurisdiction of a court of record. (8) Provisions enacted finally prior to September 1, 1937 which are in derogation of the common law.").
352. OHIO REV. CODE ANN. § 1.11 (LexisNexis 1990).
353. COLO. REV. STAT. § 2-4-201 (2008);
354. see, e.g., IOWA CODE § 4.4 (1999) ("In enacting a statute, it is presumed that . . . [p]ublic interest is favored over any private interest."); MINN. STAT. § 645.17(5) (2008) ("In ascertaining the intention of the legislature the courts may be guided by the . . . presumption[] . . . [that] the legislature intends to favor the public interest as against any private interest."); PA. CONS. STAT. § 1922(5) (2006) ("In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: . . . That the General Assembly intends to favor the public interest as against any private interest."); TEX. GOV'T CODE ANN. § 311.021(5) (Venon 2005) ("In enacting a statute, it is presumed that . . . public interest is favored over any private interest.").
355. HAW. REV. STAT. § 1-5 (1993); see, e.g., GA. CODE ANN. § 1-3-7 (2000) ("Laws made for the preservation of public order or good morals may not be dispensed with or abrogated by any agreement. However, a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest."); MONT. CODE ANN. § 1-3-204 (2007) ("Any person may waive the advantage of a law intended solely for that person's benefit. A law established for a public reason cannot be contravened by a private agreement.").
356. These codifications may represent yet another way that legislatures can say to interpreters "don't reach absurd results," reinforcing the absurd results exception to the plain meaning rule. See supra note 47.
357. IDAHO CODE ANN. § 73-102 (2006); see, e.g., CAL. CIV. CODE § 4 (West 2007) ("[P]rovisions are to be liberally construed with a view to effect its objects and to promote justice."); IOWA CODE § 4.2 ("[Provisions and all proceedings under [this Code] shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.").
358. COLO. REV. STAT. § 2-4-201.
359. HAW. REV. STAT. § 1-15; see also MINN. STAT. § 645.17 (2008) ("[T]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable.").
360. OHIO REV. CODE ANN. § 1.49 (LexisNexis 1990).
361. UTAH CODE ANN. § 68-3-2 (2008).
362. MONT. CODE ANN. §§ 1-2-104, -4-104 (2007).
363. OR. REV. STAT. ANN. § 174.030 (West 2007) ("Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to prevail.").
364. 3 SUTHERLAND, supra note. 24, § 61:1, at 334 (7th ed. 2008).
365. 1 PA. CONS. STAT. § 1901 (2006); see, e.g., ALASKA STAT. § 01.10.020 (2008) (codified interpretive rules "shall be observed in the construction of the laws of the state unless the construction would be inconsistent with the manifest intent of the legislature"); ARIZ. REV. STAT. ANN. § 1-211 (2002) ("[R]ules and the definitions set forth in this chapter shall be observed in the construction of the laws of the state unless such construction would be inconsistent with the manifest intent of the legislature."); DEL. CODE ANN. tit. 1, § 301 (2001) ("[R]ules of construction and the definitions set forth in this chapter shall be observed in the construction of this Code and all other statutes, unless such construction would be inconsistent with the manifest intent of the General Assembly . . . ."); KAN. STAT. ANN. § 77-201 (Supp. 2008) ("In the construction of the statutes of this state the following rules shall be observed, unless the construction would be inconsistent with the manifest intent of the legislature . . . ."); MASS. GEN. LAWS ANN. ch. 4, § 6 (West 2006) ("In construing statutes the following rules shall be observed, unless their observance would involve a construction inconsistent with the manifest intent of the law-making body . . . ."); MICH. COMP. LAWS ANN. § 8.3 (West 2004) (codified rules "shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature"); MINN. STAT. § 645.08 (2008) (codified "canons of interpretation are to govern, unless their observance would involve a construction inconsistent with the manifest intent of the legislature"); NEB. REV. STAT. § 49-802 (2004) (codified rules shall be followed "[u]nless such construction would be inconsistent with the manifest intent of the legislature"); N.H. REV. STAT. ANN. § 21:1 (LexisNexis 2008) (codified canons "shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature"); N.C. GEN. STAT. § 12-3 (2007) (codified canons "shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly").
366. SCALIA, supra note 49, at 17.
367. Justice Scalia's rejection of "intent of the legislature as the proper criterion of the law," id. at 31, is not as absolute as it appears in light of his focus on "'objectified' intent," id. at 17. His rejection of "intent" should be read more accurately as rejecting more specifically subjective and unmanifested versions of intent.
368. Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REV. 379, 381 (1907).
369. SCALIA, supra note 49, at 27-28.
370. Id. at 28.
371. Id. at 28-29.
372. See, e.g., KY. REV. STAT. ANN. § 446.080 (West 2006) (emphasis added).
373. See Abbe R. Gluck, Statutory Interpretation Beyond the Supreme Court: State Courts, Interpretive Clarity, and the Emerging "Modified Textualism," 119 YALE L.J. (forthcoming Apr. 2010) (describing interpretive methodological developments in five states and state court responses to legislated interpretive directives).
374. Or, in Texas, regardless of whether the statute is ambiguous.
375. Formally speaking, a flat embargo would be lawless, but a permissive presumption against extratextual sources would not be. No legislature says "must consider" - they generally say "may consider." Even the champions of new textualism are not pure new textualists. Justice Scalia, for instance, does not entirely write off legislative history. He takes issue with how legislative history is used and would, therefore, not permit historical or legislative material to lead him away from the meaning that is (1) most in accord with context and ordinary usage and (2) most compatible with the surrounding body of law into which the provision must be integrated. See SCALIA, supra note 49, at 28. If you added "(3) is consistent with legislative purpose, and (4) produces a just and feasible result" to this recipe, it would be more or less consistent with the prevailing codifications of American legislatures.
376. Eskridge & Frickey, supra note 3, at 321, 345-54.
377. See, e.g., N.D. CENT. CODE § 1-02-05 (2008) ("When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
378. Purpose and context are privileged tools of statutory interpretation (if the statute is ambiguous): "This chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter." N.Y. GEN. CONSTR. LAW § 110 (McKinney 2003). Context is usually privileged above purpose - some of the interpretive chapters are contingent on the context of the statutes but do not mention purpose (these types of statutes do not mention purpose while excluding context): "In the construction of all statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the same statute." N.C. GEN. STAT. § 12-3 (2007); see also supra text accompanying notes 142, 304-09. But New Mexico, the state with the most detailed and rigid interpretive hierarchy, places purpose at the bottom of its list of other aids to construction. N.M. STAT. § 12-2A-20 (2005).
379. See, e.g., HAW. REV. STAT. § 1-15(3) (1993) ("Every construction that leads to an absurdity shall be rejected.").
380. See Appendix B for a chart showing codifications for each legislature in the United States.
381. See ESKRIDGE, FRICKEY & GARRETT, supra note 26, at 249 ("Problem-solving ought to 'trust rather to the multitude and variety of its arguments than to the conclusiveness of any one. Its reasoning should not form a chain which is no stronger than its weakest link, but a cable whose fibers may be ever so slender, provided they are sufficiently numerous and intimately connected.'" (quoting Charles Pierce, Collected Papers 264 (Charles Hartshorne & Paul Weiss eds., 1960))).
382. See, e.g., OR. REV. STAT. ANN. § 174.020 (West 2007) ("A court shall give the weight to the legislative history that the court considers to be appropriate.").
383. See, e.g., NEB. REV. STAT. § 49-802(II) (2004) ("The enumeration of the rules of construction set out in this section is not intended to be exclusive, but is intended to set forth the common situations which arise in the preparation of legislative bills where a general statement by the Legislature of its purpose may aid and assist in ascertaining the legislative intent.").
384. Cf. Frederick Liu, Comment, The Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives, 117 YALE L.J. 1947, 1950-51 (2008) (suggesting that where "the law runs out" may be "a common language in which to discuss the law").
385. E.g., 15A C.J.S. Common Law § 11 (2002); see also 15A AM. JUR. 2D Common Law § 13 (2000) ("[I]t is the duty of the courts to bring the law into accordance with present-day standards of wisdom and justice, and to keep it responsive to the demands of a changing scene.").
386. 15A AM. JUR. 2D Common Law § 13 (2000) ("[A] court should not be bound by an early common-law rule unless it is supported by reason and logic. The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. . . . Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.")
387. Elhauge discusses opting out of the rule of lenity and suggests that this violates the vesting of interpretive authority in courts. See Elhauge, supra note 5, at 2203; see also Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2108-12 (2002) (discussing possible constitutional limitations on legislative adoption of interpretive rules opting out of default rules and designed to maximize political satisfaction). Moreover, Alexander Hamilton implied that separation of powers would prevent legislatures from
388. See THE FEDERALIST NO. 78, at 492 (Alexander Hamilton) (Benjamin E. Wright ed., 1961) ("The interpretation of the laws is the proper and peculiar province of the courts.").
389. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). The judiciary, therefore, may possess the authority to construe legislative enactments in a matter that judges decide. On the other hand, Rosenkranz has argued that it would be constitutionally permissible for Congress to codify rules of statutory interpretation. See Rosenkranz, supra note 32, at 2156.
390. In this sense, the argument would be that judges are infringing on the legislature by using unconstitutional sources of meaning, rather than that the legislature is infringing on judges by unconstitutionally interfering with the judicial power to develop methods of statutory interpretation. See Zedner v. United States, 547 U.S. 489, 509-10 (2006) (Scalia, J., concurring) ("For reasons I have expressed elsewhere, I believe that the only language that constitutes 'a Law' within the meaning of the Bicameralism and Presentment Clause of Article I, § 7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute." (citation omitted)).
391. The California Code has no code-wide statutes governing interpretation. Rather, "[t]he general rules for the construction of statutes are contained in the preliminary provisions of the different codes." CAL. GOV'T CODE § 9603 (West 2007). Classifications for California relate to those interpretive provisions from the California Civil Code that are more or less typical of the entire code. See supra note 35.