Using Substantive Canons to Interpret Statutes

Last month we discussed the usage of Textual Canons in the Interpretations of Statutes. The textual canons focus on the language of a statute or a group of statutes to help courts discern the meaning of an ambiguous statute. Substantive canons function much differently. When a court employs a substantive canon in making a decision about the interpretation of a statute it is basing its decision on some long-standing presumptions about what the legislature intends.  As with textual canons, the prerequisite before employing a substantive canon is there must be an ambiguity in the statute in question.

Rule of Lenity: With regard to criminal law, the rule of lenity is that where a criminal statute is subject to multiple interpretations, the ambiguity should be resolved in favor of the defendant. See e.g. Bell v. United States, 349 U.S. 81 (1955).

“Charming Betsy”: This canon comes from the Marshall court. In Marshall’s words, “It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, The, 6 U.S. 64, 2 L. Ed. 208 (1804). In the language of today, this means that wherever an interpretation of a statute conflicts with international law, courts should interpret the statute in a way that does not conflict.

“Chevron” Deference: This canon is based on another Supreme Court decision dealing with administrative agency’s interpretation of a statute. In, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. the Court articulated the rule that when a statute is silent as to a specific issue related to the statute, courts should defer to administrative agency’s interpretation of a statute where “the agency's [interpretation] is based on a permissible construction of the statute.” 467 U.S. 837, 842-43 (1984).

Constitutional Avoidance: Under this canon, given competing interpretations of a statute, courts should choose a construction which is free of constitutional issues. See e.g. N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).

Common Law Canon: This canon means that statutes should not be construed as abrogating common law unless the legislature states the intention to abrogate common law explicitly. See e.g. United States v. Texas, 507 U.S. 529 (1993).

Sovereignty Canon: Courts using this canon should interpret statutes with the presumption that the state did not intend to abrogate its own sovereignty, including immunity from prosecution. See e.g. Lane v. Pena, 518 U.S. 187 (1996).

Absurdity Canon: This is the presumption that the legislature did not intend a result that is absurd or unjust. See e.g. Aids Support Grp. of Cape Cod, Inc. v. Town of Barnstable, 477 Mass. 296 (2017).

Using Textual Canons to Interpret Statutes

Any high-school civics student can tell you it is the prerogative of the legislature to create statutes. What they may not be able to tell you is what to do when the statutes created by the legislature are ambiguous or when multiple statutes conflict. Over the years, the courts have developed many methods to help with interpreting statutes in such situations. The purpose of these methods is simple, to discern the intent of the legislature. While we law librarians often love the esoteric challenge of legislative history research it will often be simpler to adhere to the canons of statutory interpretation. The canons are often broken down between textual and substantive canons. This blog post will focus on some of the textual canons. Next month I will follow up with substantive canons.

Plain Meaning: The first rule of statutory construction is the plain meaning rule, which is that when the meaning of a statute is unambiguous, the court must interpret it using that meaning. This also means that courts should not look to any of the other canons unless there is ambiguity in the statute.

Eisdem Generis: This canon means that where a general term follows a list of specific terms, the general terms are interpreted as being limited to the types of specific things listed.  For example:

§ 1.7 Licenses – citizens must obtain a weapon owners identification card prior to purchasing pistols, shotguns, rifles, or other weapons.

This statute would probably not be interpreted as including a machete a weapon for which the license was required due to the limiting effect of listing several firearms before the catch-all.

Noscitur a Sociis: This canon means that an ambiguous word can be interpreted as being “known by its associates.” For example:

§ 9.0.1 Parts—the cost for repair parts for trucks, automobiles, vans, and bikes must be disclosed to the customer prior to being installed

The term “bikes” would probably be interpreted as applying to motorcycles rather than bicycles since all the other terms in the list were motor vehicles.

Expressio Unius Est Exclusio Alterius: This canon is another which concerns itself with lists. It is simply that if a list of terms is given, it is presumed that anything not in the list is meant to be excluded. For example:

§ 8536/97.5 Fruits not subject to import tax: bananas, grapes, peaches, apples, and strawberries.

This statute would not exempt raspberries from the tax.*

In Pari Materia: This canon means that an ambiguous statute may be interpreted with other statutes with the same subject matter. 

For instance in Burno v. Commissioner of Correction, 399 Mass. 111, 119-20 (1987), the Massachusetts Supreme Judicial Court found that the term “maximum term” from two closely related statutes concerning deductions from prison sentences should be given the same meaning.

Rule Against Surplusage: This canon means that the legislature intended every statute to have effect and when one statute appears to abrogate another, the statutes should be read to give both effect.

For instance, in St. Clare Home v. Donnelly, 117 R.I. 464, 467 (1977), the Rhode Island Supreme Court found that a statute requiring an assessment of a tax levy for an entire town should not include properties which are tax exempt under another statute.

Specific Controls General: This canon simply means that when two statutes appear to apply to the same situation the statute which is more specific controls. For example:

§ 101.12 Parking Meters: All vehicles must pay for parking in metered spaces.

§ 116.07 Handicapped Placards or Plates: Any vehicle displaying a current handicapped placard or plate is permitted free parking at any parking space.

Here, the general rule expressed in § 101.12 does not apply to those falling under the specific rule in § 116.07.

_______

* But what about raisins?

Book-It Legal

Was one of your New Year's resolutions to gain more research and writing experience? If so, take a look at Book-It Legal.

Book-It Legal is one of the winners of the 2018 ABA Techshow Startup Alley Competition. It provides a web platform to connect attorneys with law students for per-project legal tasks. Typical projects include: writing memos, brief and motion editing, cite-checking, deposition summaries, document review, articles or client alerts, and trial transcript summaries. In addition to gaining experience, students also earn income.


Attorneys post projects describing the work, estimated hours, deadline, and pay. The attorney receives notification when a student applies for a project and is able to review student profiles and choose the most qualified candidate for the project. The project posting I saw required a turn around time of one week. Payment is handled via a third-party payment processor, Braintree (a PayPal company).

Once a project is completed, the attorney can rate the student's performance in the areas of communication, quality of work, and adherence to schedule. The attorney can also leave private feedback for the student and a public comment letting other lawyers know about the experience he or she had working with the student. A process for students to rate and review the attorneys is coming soon. 


Currently, 2L, 3L, and LL.M. students with a GPA of 3.0 or higher who are enrolled at a law school accredited by the American Bar Association are eligible to apply for projects. This may expand as project volume increases.

Once a student creates an account, he or she can add information to his or her profile, such as education, work experience, and volunteer experience. There is also the ability to include writing samples and publications.


The ability to choose projects that fit into your schedule might make Book-It Legal a good option for part-time students for whom gaining legal experience while in law school is always a challenge.

Wolters Kluwer’s Cheetah

Note: Cheetah trial access has ended.

Anyone in our Elder Law LLM program is probably familiar with the Wolters Kluwer’s Intelliconnect platform. Wolter’s Kluwer has created a new platform called Cheetah and we have obtained access to this product. This post will discuss the differences between the two platforms.

The Western New England University School of Law community can access a trial version of Cheetah the same way you currently access Intelliconnect. The link to Intelliconnect will now offer you a choice between accessing Intelliconnect and Cheetah. This includes a checkbox to make one or the other your default. One launch a new window for Intelliconnect from Cheetah and vice versa. Our Cheetah access does not currently include all of the content from Intelliconnect but Wolters Kluwer assures me this will be rectified soon.

The first difference you will notice is the look and feel of the front page. The Intelliconnect interface looks like it was designed for screens with lower resolution (the text is very small). It includes the available content in an expandable browse list on the left side of the screen. If you know the path to take you can drill down to any document on the system. Once you find the document you want it is displayed in a different frame on the same page.

On Cheetah the text is bigger. The Home screen on Cheetah replaces the top layer of the expanding lists we saw on Intelliconnect with a series of Practice Areas.

Clicking on one of those (we’ll use Human Resources) brings you to a page which has the next level of the expanding list we saw on Intelliconnect.

Clicking into one of these will bring you to another screen which looks remarkably like Intelliconnect with an expandable list on the left and a selected document on the right.

To retrieve documents in Cheetah, one can quick print the current document. One can also select multiple documents to print, email, or download. Cheetah no longer has the document tray however if one obtains an individual account you can save items within that account and view your history to retrieve documents. 

Using a Research Log

A research log is essential for tracking your legal research process. I use an Excel spreadsheet. This image is of the current headings of my research log template:

Here are what the headings are for:

Date: the current date when I examine a resource or perform a search

Database/Source Citation: This is either the database I used to perform a search (including filters applied to the search) or the Resource I examined (including reference to section, chapter, or page). 

URL/Physical Location: URL means Uniform Resource Locator, which most people think of as a web address.  This can be cut and paste from the address line of a browser. Keeping these will allow you to quickly get back to a resource you need to use and keeps your history all in one place. Physical location is for referring to print resources. It most often is a call number from the library I use most often.

Search or Scan Terms / Method: Search Terms means the terms or search string I use in a database. Scan terms means words I look for within a research (like using control-f in a document). Method means if I do something else like reading a whole book chapter.

Findings: For a search, findings are the resources I found which I intend to look at. For a secondary source this is a summary of what I learned and the primary sources which are cited for each element of the cause of action. For primary sources could be another summary of what I learned from the secondary source but it could also be the supporting language within the primary source for the relevant point of law.    

Good Law: For secondary sources this means when the source was last updated, the further in the past the more care one needs to take making sure the referenced primary law is still good. For primary sources this means using a citator like Keycite or Shepard’s.

Subsequent Steps Indicated: This is the key to a working research log. When looking at a secondary source, subsequent steps should include checking any primary law referenced by the secondary source for currency. When looking at a statute or regulation, this means using a citator to ensure the statute or regulation has not been found by the courts to be unconstitutional, vague, or in the case of regulations, ultra vires. When looking at cases one needs to check each negative signals to see if the point of law you want to use from a case is still good law and applicable to the facts of your case (i.e. not distinguished).  Each subsequent step indicated for a given resource should immediately be put on a new line in the source column.

Hypothetical:

Your supervising attorney, is representing a man who was dropped by two EMTs while being carried on a stretcher out of a restaurant in Holyoke, MA.  She thinks the case meets the elements of negligence under the res ipsa loquitur doctrine. She has asked you to find out if there are any other reasons the EMTs or their employer would not be liable for negligence.

Since this is a tort case, you start by looking at the MCLE Tort Law Manual on Westlaw. Since you’re not sure where in the resource you need to look you decide to search within the resource for the term EMT. The second item on the list is a chapter about Tort Immunities and it discusses the immunity of an EMT under a statute. Your log should now look something like this:

In the chapter on Tort Immunities you find the resource was last updated in 2017 and that under General Laws Chapter 111C, § 21 the EMTs are immune from liability.  You also find that under the case Taplin v. Chatham, 390 Mass. 1 (1983), the EMT’s immunity under the statute does not extend to their employer.  Here are the next few lines of your log:

In following up the primary laws you find that the statute is yellow flagged due to a proposed change to the statute and is good law for your purpose. Taplin has three cases under negative treatment, Pletan v. Gaines. Walsh v. Comprehensive Addiction Programs, and Doe v. Town of Blanford. These cases need to be checked to see if your usage of the point of law in Taplin is affected.  Pletan is a Minnesota case and is not binding on Massachusetts courts. The Walsh case is limits the holding in Taplin to employers of EMTs covered by the statute. The Doe is discussing a different point of law within Taplin than the one on which you are relying. Thus all of the cases which negatively treat Taplin are irrelevant to your problem.  Thus you are done! The last few lined of your log should look something like this: