Canons of Statutory Construction

Abbe R. Gluck & Richard A. Posner, “Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals.” Harv. L.R. 131:1298 (2018) (Summary here)

  • Canons of Construction
    • No particular origin or authority; preferred by more formalist judges (textualists)
    • Not binding, but providing consistency and coherence on statutory language (goal)
  • Linguistic Canons (Examples)
    • The presumption that terms are used consistently throughout statutes
    • The presumption that Congress does not use repetitive language
    • Ejusdem generis: “the concept that the meaning of a general term in a list should be construed in accordance with more specific terms on the list” (1330)
    • Expressio unius: “the concept that the inclusion or exclusion of express statutory terms presumes the intentional exclusion or inclusion of others.” (1330)
    • Rule against superfluities—“the presumption that statutes are drafted without redundancies” (1337)
  • Policy Canons (Examples)
    • The presumption that federal statutes do not preempt state law unless they clearly so state
    • The presumption against extraterritorial application of statutes
    • The rule of lenity: “which provides that courts construe ambiguous criminal statutes in favor of defendants”
    • Avoiding constitutional questions
    • Federalism canon



 INS v. Elias-Zacarias, 502 US 478 (1992) – Scalia

“In construing statutes, ‘we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.’” (citing to Richards v. U.S., 369 U.S. 1, 9 (1962))


City of Philadelphia v. A.G., No. 18-2648 (3d Cir. 2019)

“In interpreting the meaning of these statutory provisions, we rely on the rules of statutory interpretation articulated by the Supreme Court and this Court. Our point of departure is the text of the statute. See Gov’t of Virgin Islands v. Knight, 989 F.2d 619, 633 (3d Cir. 1993). But we are mindful not to read provisions in isolation. Rather, we look to the text and structure of the statute as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). We are also guided by any relevant, well-established canons of statutory interpretation. See Schaar v. Lehigh Valley Health Servs., Inc.,  598 F.3d 156, 160 (3d Cir. 2010).” (17)

“Furthermore, the coordination requirement asks for a certification that there ‘has been’ appropriate coordination. Given that ‘Congress’ use of a verb tense is significant in construing statutes,’ United States v. Wilson, 503 U.S. 329, 333 (1992), and this provision is housed in a subsection containing several other certification requirements regarding a grantee’s application, we interpret it to require certification that there was appropriate coordination in connection with the grantee’s application. This does not serve as a basis to impose an ongoing requirement to coordinate on matters unrelated to the use of grant funds.” (19)

“The preceding five subsections all deal with the AAG’s power to disseminate criminal justice information and coordinate with various agencies and officials. See 34 U.S.C. § 10102(a)(1)-(5). The principle of noscitur a sociis—‘a word is known by the company it keeps’—is helpful here. Yates v. United States, 135 S. Ct. 1074, 1085 (2015). Given the ministerial nature of the powers in the preceding five subsections, we would be hesitant to find such a sweeping grant of authority in the sixth subsection absent clear language to support that interpretation.” (24)

“Starting with the text, we observe that 34 U.S.C. § 10153(a)(5)(D) contains an initial specific phrase followed by a general phrase: a grant applicant must certify that it ‘will comply with [1] all provisions of this part and [2] all other applicable Federal laws.’ In these situations, the principle of ejusdem generis teaches that ‘the general term should be understood as a reference to subjects akin to the one with specific enumeration.’ Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991). But ‘[t]he absence of a list of specific items undercuts the inference embodied in ejusdem generis.’ Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008) (emphasis added). If the general phrase (‘all other applicable Federal laws’) were preceded by a list of specific federal laws, then our task would be much easier. But here we find only ‘one specific and one general category.’ Id. Moreover, the specific phrase (‘all provisions of this part’) tells us little about the meaning of the general phrase. In short, ejusdem generis does not get us very far in interpreting ‘all other applicable Federal laws.’” (26) [geez, why’d you waste time on this, then? Showoff.]

“…the canon against surplusage counsels us to read the term ‘applicable’ in a way that gives it some independent heft. See Paek v. Att’y Gen., 793 F.3d 330, 337 (3d Cir. 2015) (“The canon against surplusage counsels us to give effect to every word of a statute.”). Here, the term ‘applicable’ avoids being redundant only be doing some limiting work beyond delineating the set of all federal laws that would ‘appl[y]’ to an entity like Philadelphia. Otherwise, Congress could have simply written that a grant applicant must certify compliance with ‘all other Federal laws.’ See San Francisco, 2018 WL 4859528 at *17 (‘[I]t is superfluous to interpret ‘all other applicable Federal laws’ as ‘all Federal laws’). Thus, the word ‘applicable’ must have a narrower meaning than one that sweeps all possible laws that independently apply to a grant applicant.” (26-27).