THE CANONS OF LEGAL INTERPRETATION are pithy sayings setting out various ways in which statutes should or should not be interpreted:
Every word in a statute should be given effect.
Expressio unius est exclusion alterius (the expression of one thing suggests the exclusion of others).
Ejusdem generis (interpret a general term to reflect the class of objects reflected in more specific terms accompanying it).
Statutes should be presumed not to apply extraterritorially.
…and so forth.
Karl Llewellyn, a prominent mid-20th century legal scholar, famously said that “there are two opposing canons on almost every point.” On November 3, the Supreme Court will hear argument in Lockhart v. United States, a case that presents about as stark a clash between opposing canons as you could ever hope to find.
Lockhart is of interest to us here at LAWnLinguistics because the canons at issue are among the small group of “linguistic canons”—those that deal with language-related issues. In particular, they deal with resolving ambiguities that arise as a result of the statutory language having more than one plausible syntactic structure. I dealt at some length with the general issue of syntactic ambiguity, and with the specific canons that are now at issue in Lockhart, in my multipart look at Reading Law: The Interpretation of Legal Texts, by Supreme Court Justice Antonin Scalia and legal-writing guru Bryan Garner. (Of my previous posts about the book the ones most relevant here are Syntactic ambiguity, Three syntactic canons, On Garner on Posner on Scalia & Garner, and Last antecedents, series qualifiers, and psycholinguistics.)
In those posts (particularly the last three) I criticized several aspects of how Reading Law treated the canons that are now at issue in Lockhart. And those some of those criticisms, as well as others that have occurred to me as I’ve thought about Lockhart, are pertinent to the legal issues in the case. And more broadly, as I’ve continued to think about Reading Law’s handling of the syntactic canons, I’ve come to believe that the framework established by Reading Law is not merely problematic, but deeply flawed. And as it turns out, Lockhart provides a good lens through which those flaws can be examined.