\ William N. Eskridge, Jr. & Philip P.

Frickey's Listing and Categorization of Canons Used by the

V^ United States Supreme Court from 1986-1993
C
TEXTUAL CANONS}- ^ W & -
Plain meaning rule: follow the plain meaning of the statutory text, except when text suggests
an absurd result or a scrivener's error.

LINGUISTIC INFERENCES

• Expressio unius: expression of one thing suggests the exclusion of others.

. Noscitur a sociis: interpret a general term to be similar to more specific terms in a series.
• Ejusdem generis: interpret a general term to reflect the class of objects reflected in more
specific terms accompanying it.
• Follow ordinary usage of terms, unless Congress gives them a specified or technical
meaning.
. Follow dictionary definitions of terms, unless Congress has provided a specific definition.
TConsiderHctionaries of the era|in which the statute was enacted. Do not consider
"idiosyncratic" dictionary definitions.
• "May" is usually precatory, while "shall" is usually mandatory.
• "Or" means in the alternative.

GRAMMAR AND SYNTAX

• Punctuation rule: Congress is presumed to follow accepted punctuation standards, so that

placements of commas and other punctuation are assumed to be meaningful.
• Do not have to apply the "rule of the last antecedent" if not practical.

TEXTUAL INTEGRITY

[,U t [ * Each statutory provision should be read by reference to the whole act. Statutory
C^J^ I interpretation is a "holistic" endeavor.
^ • Avoid interpreting a provision in a way that would render other provisions of the Act
superfluous or unnecessary,
• Avoid interpreting a provision in a way inconsistent with the policy of another provision.
• Avoid interpreting a provision in a way that is inconsistent with a necessary assumption of
another provision.
• Avoid interpreting a provision in a way that is inconsistent with the structure of the statute.
• Avoid broad readings of statutory provisions if Congress has specifically provided for the
broader policy in more specific language elsewhere.
• Interpret the same or similar terms in a statute the same way.
• Specific provisions targeting a particular issue apply instead of provisions more generally
covering the issue.
• Provisos and statutory exceptions should be read narrowly.
• Do not create exceptions in addition to those specified by Congress.
 EXTRINSIC SOURCE CANONS

AGENCY INTERPRETATIONS

• Rule of deference to agency interpretations, unless contrary to plain meaning of statute or

unreasonable.
• Rule of extreme deference when there is express delegation of law-making duties to
agency.
• Presumption that agency interpretation of its own regulations is correct.

CONTINUITY IN LAW

• Rule of continuity: assume that Congress does not create discontinuities in legal rights and
obligations without some clear statement.
• Presumption that Congress uses same term consistently in different statutes.
• Super-strong presumption of correctness for statutory precedents.
• Presumption that international agreements do not displace federal law.
• Borrowed statute rule: when Congress borrows a statute, it adopts by implication
interpretations placed on that statute, absent express statement to the contrary.
• Re-enactment rule: when Congress re-enacts a statute, it incorporates settled interpretations
of the re-enacted statute. The rule is inapplicable when there is no settled standard Congress
could have known.
• Acquiescence rule: consider unbroken line of lower court decisions interpreting statute, but
do not give them decisive weight.

EXTRINSIC LEGISLATIVE SOURCES

• Interpret provision consistent with subsequent statutory amendments, but do not consider
subsequent legislative discussions.
• Consider legislative history if the statute is ambiguous.
• Committee reports are authoritative legislative history, but cannot trump a textual plain
meaning, and should not be relied on if they are "imprecise."
• Committee report language that cannot be tied to a specific statutory provision cannot be
credited. House and Senate reports inconsistent with one another should be discounted.
• Presumption against interpretation considered and rejected by floor vote of a chamber of
Congress or committee.
• Floor statements can be used to confirm apparent meaning.
• Contemporaneous and subsequent understandings of a statutory scheme (including
understandings by President and Department of Justice) may sometimes be admissible.
• The "dog didn't bark" canon: presumption that prior legal rule should be retained if no one
in legislative deliberations even mentioned the rule or discussed any changes in the rule.
 SUBSTANTIVE POLICY CANONS

CONSTITUTION-BASED CANONS

• Avoid interpretations that would render a statute unconstitutional. Inapplicable if statute

would survive constitutional attack, or if statutory text is clear.

1. Separation of Powers

• Super-strong rule against congressional interference with President's authority over foreign
affairs and national security.
• Rule against congressional invasion of the President's core executive powers.
• Rule against review of President's core executive actions for "abuse of discretion."
• Rule against congressional curtailment of the judiciary's "inherent powers"_or its "equity"
powers.
• Rule against congressional expansion of Article III injury in fact to include intangible and
procedural injuries.
• Presumption that Congress does not delegate authority without sufficient guidelines.
• Presumption against "implying" causes of action into federal statutes.
• Presumption that U.S. law conforms to U.S. international obligations.
• Rule against congressional abrogation of Indian treaty rights.
• Presumption favoring severability of unconstitutional provisions.

2. Federalism

• Super-strong rule against federal invasion of "core state functions."

• Super-strong rule against federal abrogation of states' Eleventh Amendment immunity from
lawsuits in federal courts.
• Rule against inferring enforceable conditions on federal grants to the states.
• Rule against congressional expansion of federal court jurisdiction that would siphon cases
away from state courts.
• Rule against reading a federal statute to authorize states to engage in activities that would
violate the dormant commerce clause.
• Rule favoring concurrent state and federal court jurisdiction over federal claims.
• Rule against federal pre-emption of traditional state functions, or against federal disruption
of area of traditional state regulation.
• Presumption against federal pre-emption of state-assured family support obligations.
• Presumption against federal regulation of intergovernmental taxation by the states.
• Presumption against application of federal statutes to state and local political processes.
• Presumption that states can tax activities within their borders, including Indian tribal
activities,_but also presumption that states cannot tax on Indian lands.
• Presumption against congressional derogation from state's land claims based upon its entry
into Union on an "equal footing" with all other states.
• Presumption against federal habeas review of state criminal convictions supported by
independent state ground.
• Presumption of finality of state convictions for purposes of habeas review.
 • Principle that federal equitable remedies must consider interests of state and local
authorities.
• Presumption that Congress borrows state statutes of limitations for federal statutory
schemes, unless otherwise provided.

3. Due Process

• Rule of lenity: rule against applying punitive sanctions if there is ambiguity as to

underlying criminal liability or criminal penalty. Rule of lenity applies to civil sanction that is
punitive or when underlying liability is criminal.
• Rule against criminal penalties imposed without showing of specific intent.
• Rule against interpreting statutes to be retroactive, even if statute is curative or restorative.
• Rule against interpreting statutes to deny a right to jury trial.
• Presumption in favor of judicial review, especially for constitutional questions, but not for
agency decisions not to prosecute.
• Presumption against pre-enforcement challenges to implementation.
• Presumption against exhaustion of remedies requirement for lawsuit to enforce
constitutional rights.
• Presumption that judgments will not be binding upon persons not party to adjudication.
• Presumption against national service of process unless authorized by Congress.
• Presumption against foreclosure of private enforcement of important federal rights.
• Presumption that preponderance of the evidence standard applies in civil cases.

STATUTE-BASED CANONS
• In pari materia: similar statutes should be interpreted similarly, unless legislative history or
purpose suggests material differences.
• Presumption against repeals by implication.
• Purpose rule: interpret ambiguous statutes so as best to carry out their statutory purposes.
• Narrow interpretation of statutory exemptions.
• Presumption against creating exemptions in a statute that has none.
• Allow de minimis exceptions to statutory rules, so long as they do not undermine statutory
policy.
• Presumption that federal private right of action (express or implied) carries with it all
traditional remedies.
• Presumption that court will not supply a sanction for failure to follow a timing provision
when the statute has no sanction.
• Rule against state taxation of Indian tribes and reservation activities.
• Presumption against national "diminishment" of Indian lands.
• Narrow interpretation of exemptions from federal taxation.
• Presumption against taxpayer claiming income tax deduction.
• Presumption that the Bankruptcy Act of 1978 preserved prior bankruptcy doctrines.
• Federal court deference to arbitral awards, even where the Federal Arbitration Act is not by
its terms applicable.
• Strong presumption in favor of enforcing labor arbitration agreements.
• Rule favoring arbitration of federal statutory claims.
 • Strict construction of statutes authorizing appeals.
• Rule that Court of Claims is proper forum for Tucker Act claims against federal
government.
• Rule that "sue and be sued" clauses waive sovereign immunity and should be liberally
construed.
• Presumption that statute creating agency and authorizing it to "sue and be sued" also creates
federal subject matter jurisdiction for lawsuits by and against the agency.
• Construe ambiguities in deportation statutes in favor of aliens.
• Principle that veterans' benefits statutes be construed liberally for their beneficiaries.
• Liberal application of antitrust policy.
• Presumption against application of Sherman Act to activities authorized by states.
• Principle that statutes should not be interpreted to create anticompetitive effects.
• Strong presumption that federal grand juries operate within legitimate spheres of their
authority.

COMMON LAW-BASED CANONS

• Presumption in favor of following common law usage where Congress has employed words
or concepts with well settled common law traditions. Follow evolving common law unless
inconsistent with statutory purposes.
• Rule against extraterritorial application of U.S. law, except for antitrust laws.
• Super-strong rule against waivers of United States sovereign immunity.
• Rule that debts to the United States shall bear interest.
• Super-strong rule against conveyance of U.S. public lands to private parties.
• Rule presuming against attorney fee-shifting in federal courts and federal statutes, and
narrow construction of fee-shifting statutes to exclude unmentioned costs.
• Presumption that jury finds facts, judge declares law.
• Rule presuming that law takes effect on date of enactment.
• Presumption that public (government) interest not be prejudiced by negligence of federal
officials.
• Presumption that federal agencies launched into commercial world with power to "sue and
be sued" are not entitled to sovereign immunity.
• Presumption favoring enforcement of forum selection clauses.
• Presumption against criminal jurisdiction by an Indian tribe over a nonmember.
• Presumption that party cannot invoke federal jurisdiction until she has exhausted her
remedies in Indian tribal courts.
• Presumption that federal judgment has preclusive effect in state administrative proceedings.
• Presumption importing common law immunities into federal civil rights statutes.
 Karl N. Llewellyn's Canons and Counter-Canons
1. A statute cannot go beyond its text. 1. To effect its purpose a statute may be
implemented beyond its text.

2. Statutes in derogation of the common law 2. Such acts will be liberally construed if their
will not be extended by construction. nature is remedial.

3. Statutes are to be read in the light of the 3. The common law gives way to a statute which is
common law and a statute affirming a common in consistent with it and when a statute is designed
law rule is to be construed in accordance with as a revision of a whole body of law applicable to a
the common law. given subject it supersedes the common law.

4. Where a foreign statute which has received 4. It may be rejected where there is conflict with
construction has been adopted, previous the obvious meaning of the statute or where the
construction is adopted too. foreign decisions are unsatisfactory in reasoning or
where the foreign interpretation is not in harmony
with the spirit or policy of the laws of the adopting
state.

5. Where various statues have already adopted 5. Where interpretations of other states are
the statute, the parent state is followed. inharmonious, there is no such restraint.

6. Statutes in pari materia must be construed 6. A statute is not in pari materia if its scope and
together. aim are distinct or where a legislative design to
depart from the general purpose or policy of
previous enactments may be apparent.

7. A statute imposing a new penalty or 7. Remedial statutes are to be liberally construed

forfeiture, or a new liability or disability, or and if a retroactive interpretation will promote the
creating a new right of action will not be ends of justice, they should receive such
construed as having a retroactive effect. construction.

8. Where design has been distinctly stated no 8. Courts have the power to inquire into real—as
place is left for construction. distinct from ostensible-purpose.

9. Definitions and rules of construction 9. Definitions and rules of construction in a statute

contained in an interpretation clause are part of will not be extended beyond their necessary import
the law and binding. nor allowed to defeat intention otherwise
manifested.

10. A statutory provision requiring liberal 10. Where a rule of construction is provided within
construction does not mean disregard of the statute itself the rule should be applied.
unequivocal requirements of the statute.
11. Titles do not control meaning; preambles 11 The title may be consulted as a guide when
do not expand scope; section headings do not there is doubt or obscurity in the body; preambles
change language. may be consulted to determine rationale, and thus
the true construction of terms; section headings
may be looked upon as part of the statute itself.

12. If language is plain and unambiguous it 12. Not when literal interpretation would lead to
must be given effect. absurd or mischievous consequences or thwart
manifest purpose.

13. Words and phrases which have received 13. Not if the statute clearly requires them to have
judicial construction before enactment are to be a different meaning.
understood according to that construction.

14. After enactment, judicial decision upon 14. Practical construction by executive officers is
interpretation of particular terms and phrases strong evidence of true meaning.
controls.

15. Words are to be taken in their ordinary 15.Popular words may bear a technical meaning
meaning unless they are technical terms or and technical words may have a popular
words of art. signification and they should be so construed as to
agree with evident intention or to make the statute
operative.

16. Every word and clause must be given 16. If inadvertantly inserted or if repugnant to the
effect. rest of the statute, they may be rejected as
surplusage.

17. The same language used repeatedly in the 17.This presumption will be disregarded where it is
same connection is presumed to bear the same necessary to assign different meanings to make the
meaning throughout the statute. statute consistent.

18. Words are to be interpreted according to the 18. Rules of grammar will be disregarded where
proper grammatical effect of their arrangement strict adherence would defeat purpose.
within the statute.

19. Exceptions not made cannot be read. 19. The letter is only the 'bark.' Whatever is within
the reason of the law is within the law itself.

20. Expression of one thing excludes another. 20. The language may fairly comprehend many
different cases where some only are expressly
mentioned by way of example.

21. General terms are to receive a general 21. They may be limited by specific terms with
construction. which they are associated or by the scope and
 purpose of the statute.

22. It is a general rule of construction that 22. General words must operate on something.
where general words follow an enumeration Further, ejusdem generis is only an aid in getting
they are to be held as applying only to persons the meaning and does not warrant confining the
and things of the same general kind or class operations of a statute within narrower limits than
specifically mentioned (ejusdem generis). were intended.

23. Qualifying or limiting words of clauses are 23. Not when evident sense and meaning require a
to be referred to the next preceding antecedent. different construction.

24. Punctuation will govern when a statute is 24. Punctuation marks will not control the plain
open to two constructions. and evident meaning of language.

25. It must be assumed that language has been 25.'And' and 'or' may be read interchangeably
chosen with due regard to grammatical whenever the change is necessary to give the
propriety and is not interchangeable on mere statute sense and effect.
conjecture.

26. There is a distinction between words of 26. Words imparting permission may be read as
permission and mandatory words. mandatory and words imparting command may be
read as permissive when such construction is made
necessary by evident intention or by the rights of
the public.

27. A proviso qualifies the provision 27. It may clearly be intended to have a wider
immediately preceding. scope.

28. When the enacting clause is general, a 28. Not when it is necessary to extend the proviso
proviso is construed strictly. to persons or cases which come within its equity.