Reading law : the interpretation of legal texts / Antonin Scalia & Bryan A. Garner.
2012
K290 .S33 2012 (Map It)
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Details
Author
Title
Reading law : the interpretation of legal texts / Antonin Scalia & Bryan A. Garner.
Published
St. Paul, MN : Thomson/West, [2012]
Copyright
©2012
Call Number
K290 .S33 2012
ISBN
031427555X
9780314275554
9780314275554
Description
xxx, 567 pages ; 24 cm
System Control No.
(OCoLC)780036606
Summary
In this groundbreaking book, Scalia and Garner systematically explain all the most important principles of constitutional, statutory, and contractual interpretation in an engaging and informative style - with hundreds of illustrations from actual cases. Is a burrito a sandwich? Is a corporation entitled to personal privacy? If you trade a gun for drugs, are you "using a gun" in a drug transaction? The authors grapple with these and dozens of equally curious questions while explaining the most principled, lucid, and reliable techniques for deriving meaning from authoritative texts. Meanwhile, the book takes up some of the most controversial issues in modern jurisprudence. The authors write with a well-argued point of view that is definitive yet nuanced, straightforward yet sophisticated. - Publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 465-506) and index.
Record Appears in
Gift
Purchased from the income of the Legislative Drafting & Research Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Legislative Drafting & Research Fund
Table of Contents
Acknowledgments
xix
Foreword / Chief Judge Frank H. Easterbrook
xxi
Preface
xxvii
Introduction
1
A.
The Why of This Book
The Flood-Control Case
1
The Need for a Sound Approach
3
The Prevailing Confusion
9
Textualism and Its Challengers
15
B.
The How of This Book
Some Fundamental Issues
29
Permissible Meanings
31
The "Fair Reading" Method
33
Scope and Organization of What Follows
41
The Flood-Control Case Resolved
44
Sound Principles of Interpretation
47
Principles Applicable to All Texts
49
Prefatory Remarks
51
Fundamental Principles
1.
Interpretation Principle. Every application of a text to particular circumstances entails interpretation
53
2.
Supremacy-of-Text Principle. The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means
56
3.
Principle of Interrelating Canons. No canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions
59
4.
Presumption Against Ineffectiveness. A textually permissible interpretation that furthers rather than obstructs the document's purpose should be favored
63
5.
Presumption of Validity. An interpretation that validates outweighs one that invalidates (ut res magis valeat quam pereat)
66
Semantic Canons
6.
Ordinary-Meaning Canon. Words are to be understood in their ordinary, everyday meanings---unless the context indicates that they bear a technical sense
69
7.
Fixed-Meaning Canon. Words must be given the meaning they had when the text was adopted
78
8.
Omitted-Case Canon. Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est). That is, a matter not covered is to be treated as not covered
93
9.
General-Terms Canon. General terms are to be given their general meaning (generalia verba sunt generaliter intelligenda)
101
10.
Negative-Implication Canon. The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius)
107
11.
Mandatory/Permissive Canon. Mandatory words impose a duty; permissive words grant discretion
112
12.
Conjunctive/Disjunctive Canon. And joins a conjunctive list, or a disjunctive list---but with negatives, plurals, and various specific wordings there are nuances
116
13.
Subordinating/Superordinating Canon. Subordinating language (signaled by subject to) or superordinating language (signaled by notwithstanding or despite) merely shows which provision prevails in the event of a clash---but does not necessarily denote a clash of provisions
126
14.
Gender/Number Canon. In the absence of a contrary indication, the masculine includes the feminine (and vice versa) and the singular includes the plural (and vice versa)
129
15.
Presumption of Nonexclusive "Include." The verb to include introduces examples, not an exhaustive list
132
16.
Unintelligibility Canon. An unintelligible text is inoperative
134
Syntactic Canons
17.
Grammar Canon. Words are to be given the meaning that proper grammar and usage would assign them
140
18.
Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent
144
19.
Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series
147
20.
Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent
152
21.
Proviso Canon. A proviso conditions the principal matter that it qualifies---almost always the matter immediately preceding
154
22.
Scope-of-Subparts Canon. Material within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts
156
23.
Punctuation Canon. Punctuation is a permissible indicator of meaning
161
Contextual Canons
24.
Whole-Text Canon. The text must be construed as a whole
167
25.
Presumption of Consistent Usage. A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning
170
26.
Surplusage Canon. If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence
174
27.
Harmonious-Reading Canon. The provisions of a text should be interpreted in a way that renders them compatible, not contradictory
180
28.
General/Specific Canon. If there is a conflict between a general provision and a specific provision, the specific provision prevails (generalia specialibus non derogant)
183
29.
Irreconcilability Canon. If a text contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect
189
30.
Predicate-Act Canon. Authorization of an act also authorizes a necessary predicate act
192
31.
Associated-Words Canon. Associated words bear on one another's meaning {noscitur a sociis)
195
32.
Ejusdem Generis Canon. Where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned (ejusdem generis)
199
33.
Distributive-Phrasing Canon. Distributive phrasing applies each expression to its appropriate referent {reddendo singula singulis)
214
34.
Prefatory-Materials Canon. A preamble, purpose clause, or recital is a permissible indicator of meaning
217
35.
Title-and-Headings Canon. The title and headings are permissible indicators of meaning
221
36.
Interpretive-Direction Canon. Definition sections and interpretation clauses are to be carefully followed
225
37.
Absurdity Doctrine. A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve
234
Principles Applicable Specifically to Governmental Prescriptions
241
Prefatory Remarks
243
Expected-Meaning Canons
38.
Constitutional-Doubt Canon. A statute should be interpreted in a way that avoids placing its constitutionality in doubt
247
39.
Related-Statutes Canon. Statutes in pari materia are to be interpreted together, as though they were one law
252
40.
Reenactment Canon. If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning
256
41.
Presumption Against Retroactivity. A statute presumptively has no retroactive application
261
42.
Pending-Action Canon. When statutory law is altered during the pendency of a lawsuit, the courts at every level must apply the new law unless doing so would violate the presumption against retroactivity
266
43.
Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statute suo clauduntur territorio, nee ultra territorium disponunt)
268
44.
Artificial-Person Canon. The word person includes corporations and other entities, but not the sovereign
273
Government-Structuring Canons
45.
Repeatability Canon. The legislature cannot derogate from its own authority or the authority of its successors
278
46.
Presumption Against Waiver of Sovereign Immunity. A statute does not waive sovereign immunity---and a federal statute does not eliminate state sovereign immunity---unless that disposition is unequivocally clear
281
47.
Presumption Against Federal Preemption. A federal statute is presumed to supplement rather than displace state law
290
Private-Right Canons
48.
Penalty/Illegality Canon. A statute that penalizes an act makes it unlawful
295
49.
Rule of Lenity. Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor
296
50.
Mens Rea Canon. A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission. All statutory offenses imposing substantial punishment will be presumed to require at least awareness of committing the [ect.]
303
51.
Presumption Against Implied Right of Action. A statutes mere prohibition of a certain act does not imply creation of a private right of action for its violation. The creation of such a right must be either express or clearly implied from the text of the statute
313
Stabilizing Canons
52.
Presumption Against Change in Common Law. A statute will be construed to alter the common law only when that disposition is clear
318
53.
Canon of Imputed Common-Law Meaning. A statute that uses a common-law term, without defining it, adopts its common-law meaning
320
54.
Prior-Construction Canon. If a statute uses words or phrases that have already received authoritative construction by the jurisdiction's court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that [ect.]
322
55.
Presumption Against Implied Repeal. Repeals by implication are disfavored---"very much disfavored." But a provision that flatly contradicts an earlier-enacted provision repeals it
327
56.
Repeal-of-Repealer Canon. The repeal or expiration of a repealing statute does not reinstate the original statute
334
57.
Desuetude Canon. A statute is not repealed by nonuse or desuetude
336
Thirteen Falsities Exposed
341
58.
The false notion that the spirit of a statute should prevail over its letter
343
59.
The false notion that the quest in statutory interpretation is to do justice
347
60.
The false notion that when a situation is not quite covered by a statute, the court should reconstruct what the legislature would have done had it confronted the issue
349
61.
The half-truth that consequences of a decision provide the key to sound interpretation
352
62.
The false notion that words should be strictly construed
355
63.
The false notion that tax exemptions---or any other exemptions for that matter---should be strictly construed
359
64.
The false notion that remedial statutes should be liberally construed
364
65.
The false notion that a statute cannot oust courts of jurisdiction unless it does so expressly
367
66.
The false notion that committee reports and floor speeches are worthwhile aids in statutory construction
369
67.
The false notion that the purpose of interpretation is to discover intent
391
68.
The false notion that the plain language of a statute is the "best evidence" of legislative intent
397
69.
The false notion that lawyers and judges, not being historians, are unqualified to do the historical research that originalism requires
399
70.
The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted
403
Afterword
411
Appendix A
A Note on the Use of Dictionaries
415
Appendix B
A Glossary of Legal Interpretation
425
Table of Cases
443
Bibliography: Books
465
Bibliography: Articles
480
Index
507