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Wednesday, May 01, 2019

The Belt-and-Suspenders Canon

James Brudney and I have uploaded our newest piece, The Belt-and-Suspenders Canon.  It is available for download here.  An abstract follows:

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their thinking about anti-surplusage rules and other textual canons. By sketching a promising future for this new canon, we hope to draw judicial practice closer to legislative practice and to enhance the enterprise of statutory interpretation for textualists and intentionalists alike.

As it happens, our last effort together -- Statutory Interpretation as Interbranch Dialogue? -- was just released by the UCLA Law Review.

Posted by Ethan Leib on May 1, 2019 at 07:58 PM | Permalink

Comments

Regarding Asher’s comment about the made-up Series-Qualifier Canon: I suspect that it was Garner rather than Scalia who is to blame for that bit of, shall we say, creativity.

Also, while it’s true that there’s no syntactic rule of thumb that neatly resolves the conflict between the Series-Qualifer canon and the Rule of the Last Antecedent, the latter has the advantage of happening—by a coincidence of cosmic proportions—to be consistent with a general tendency in sentence-comprehension that psycholinguists have found to exist.

For details about both parts of this comment: https://lawnlinguistics.com/2015/10/27/coming-to-scotus-battle-of-the-dueling-interpretive-canons/

Posted by: Neal Goldfarb | May 5, 2019 4:24:16 AM

You're thinking about the legislative process, but it happens in things like Restatements, too.

My focus is substantive torts, but I point out that Restatement (Second) of Torts § 402A(2) is entirely redundant as a way of encouraging students not to put so much weight on the anti-redundancy principle.

In my classes, I call it the and "we really mean it" principle, which emphasizes the situations--an unexpected rule—where it is likely to arise.

Unfortunately, those are just the occasions when a court might be tempted to draw the other inference, so I hope your article has a salutary effect.

Posted by: Greg Sergienko | May 3, 2019 2:31:12 PM

A couple things:

I don't find the very brief discussion of why textualists should care for this canon at all convincing. It isn't at all clear that textualists should care much about the realities of the legislative process (see Manning's "Inside Congress's Mind" for textualist skepticism about the relevance of Gluck and Bressman's research about how Congress writes statutes to interpretation), inasmuch as public meaning isn't a function of little-known facts about that process. There's a sentence in here that alternatively claims that belt-and-suspenders readings are efforts to determine the communicative content of statutes. Are they? Suppose it were the case that English speakers generally assume non-redundancy in trying to understand others' speech and writing, and that they are largely unaware of the particular realities of the legislative process that cause Congress to depart from this norm of non-redundancy. Were that the case, I don't know what a belt-and-suspenders reading could be aiming at but congressional intentions that would be obscure to most readers.

Other than that, I'm very sympathetic to your argument, except that I worry when people propose countercanons instead of just attacking or calling for a more nuanced approach to the canon they're proposing a counter to, as courts end up taking the whole canon/countercanon architecture too literally and spending a lot of time mulling over which of the paired canons applies, based on factors external to the canons' application that may be besides the point, instead of more directly asking which of the readings the alternative canons would generate is the better reading of the statute. You can see this in Lockhart v. United States, where, after Scalia more or less invented a countercanon to the last antecedent rule in his book, the "series-qualifier rule," various Justices spend a lot of time trying to argue that the statute in Lockhart has the sort of syntax that lends itself, as a general matter, to either the series-qualifier rule or the last antecedent rule, when of course there is no syntactic rule of thumb about when to read a postpositive modifier as modifying a whole series of words or the last word in the series.

Posted by: Asher Steinberg | May 2, 2019 2:17:01 AM

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