# Statutory Interpretation: General Principles and Recent Trends

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 24, 2014
- **Citation:** 97-589

## Text

Statutory Interpretation:
General Principles and Recent Trends
(name redacted)
Specialist in American Public Law
September 24, 2014

Congressional Research Service
7-....
www.crs.gov
97-589

Statutory Interpretation: General Principles and Recent Trends

Summary
The exercise of the judicial power of the United States often requires that courts construe statutes
to apply them in particular cases and controversies. Judicial interpretation of the meaning of a
statute is authoritative in the matter before the court. Beyond this, the methodologies and
approaches taken by the courts in discerning meaning can help guide legislative drafters,
legislators, implementing agencies, and private parties.
The Supreme Court has expressed an interest “that Congress be able to legislate against a
background of clear interpretive rules, so that it may know the effect of the language it adopts.”
Though the feed-back loop of interpretive practices coming from the courts may not always speak
well to actual congressional practice and desires, the judiciary has developed its own set of
interpretive tools and methodologies, keeping in mind that there is no unified, systematic
approach for unlocking meaning in all cases.
Though schools of statutory interpretation vary on what factors should be considered, all
approaches start (if not necessarily end) with the language and structure of the statute itself. In
this pursuit, the Court follows the principle that a statute be read as a harmonious whole
whenever reasonable, with separate parts being interpreted within their broader statutory context.
Still, the meaning of statutory language is not always evident. To help clarify uncertainty, judges
have developed various interpretive tools in the form of canons of construction. Canons broadly
fall into two types. “Language,” or “linguistic,” canons are interpretive “rules of thumb” for
drawing inferences based on customary usage, grammar, and the like. For example, in
considering the meaning of particular words and phrases, language canons call for determining
the sense in which terms are being used, that is, whether words or phrases are meant as terms of
art with specialized meanings or are meant in the ordinary, “dictionary” sense. Other language
canons direct that all words of a statute be given effect if possible, that a term used more than
once in a statute ordinarily be given the same meaning throughout, and that specific statutory
language ordinarily trumps conflicting general language. “Ordinarily” is a necessary caveat, since
any of these “canons” may give way if context points toward a contrary meaning.
Not infrequently the Court stacks the deck, and subordinates the general, linguistic canons of
statutory construction, as well as other interpretive principles, to overarching presumptions that
favor particular substantive results. When one of these “substantive” canons applies, the Court
frequently requires a “clear statement” of congressional intent to negate it. A commonly invoked
“substantive” canon is that Congress does not intend to change judge-made law. Other substantive
canons disfavor preemption of state law and abrogation of state immunity from suit in federal
court. As another example, Congress must strongly signal an intent to the courts if it wishes to
apply a statute retroactively or override existing law. The Court also tries to avoid an
interpretation that would raise serious doubts about a statute’s constitutionality.
Interpretive methods that emphasize the primacy of text and staying within the boundaries of
statutes themselves to discern meaning are “textualist.” Other approaches, including
“intentionalism,” are more open to taking extrinsic considerations into account. Most particularly,
some Justices may be willing to look to legislative history to clarify ambiguous text. This report
briefly reviews what constitutes “legislative history,” including, possibly, presidential signing
statements, and the factors that might lead the Court to consider it.

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Statutory Interpretation: General Principles and Recent Trends

Contents
Introduction...................................................................................................................................... 1
Statutory Text ................................................................................................................................... 3
In General—Statutory Context and Purpose ............................................................................. 3
“Language” Canons of Construction ............................................................................................... 5
In General .................................................................................................................................. 5
Ordinary and Specialized Meaning ........................................................................................... 6
Terms of Art ........................................................................................................................ 7
Ordinary Meaning and Dictionary Definitions ................................................................... 8
And/Or................................................................................................................................. 9
Definite/Indefinite Article ................................................................................................. 10
Shall/May .......................................................................................................................... 10
Singular/Plural................................................................................................................... 11
General, Specific, and Associated Words ................................................................................ 11
Grammatical Rules, Punctuation ............................................................................................. 13
Statutory Language Not to be Construed as “Mere Surplusage”............................................. 14
Same Phrasing in Same or Related Statutes ............................................................................ 16
Different Phrasings in Same Statute ........................................................................................ 16
“Congress Knows How to Say ...”........................................................................................... 17
Statutory Silence ...................................................................................................................... 18
De Minimis Principle .............................................................................................................. 20
“Substantive” Canons of Construction .......................................................................................... 20
Departure from Common Law or Established Interpretation .................................................. 20
Preempting State Law, Deferring to State Powers ................................................................... 21
Abrogation of States’ Eleventh Amendment Immunity ........................................................... 23
Nationwide Application of Federal Law ................................................................................. 23
Sovereign Immunity ................................................................................................................ 24
Non-retroactivity/Effective Date ............................................................................................. 25
Avoidance of Constitutional Issues ......................................................................................... 25
Extraterritorial Application Disfavored ................................................................................... 26
Judicial Review of Administrative Action ............................................................................... 27
Deference to Administrative Interpretation ............................................................................. 28
Repeals by Implication ............................................................................................................ 31
Laws of the Same Session ................................................................................................. 32
Appropriations Laws ......................................................................................................... 33
Rule of Lenity .......................................................................................................................... 33
Scienter .................................................................................................................................... 34
Remedial Statutes .................................................................................................................... 34
Statutes Benefiting Indian Tribes ............................................................................................ 35
Miscellany...................................................................................................................................... 36
Titles of Acts or Sections ......................................................................................................... 36
Preambles (“Whereas Clauses”) .............................................................................................. 37
Findings and Purposes Sections .............................................................................................. 37
“Sense of Congress” Provisions .............................................................................................. 38
Savings Clauses ....................................................................................................................... 38
“Notwithstanding Any Other Provision of Law”..................................................................... 39
Implied Private Right of Action............................................................................................... 40
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Incorporation by Reference ..................................................................................................... 42
Severability .............................................................................................................................. 42
Deadlines for Administrative Action ....................................................................................... 43
“Jurisdictional” Rules .............................................................................................................. 43
Legislative History......................................................................................................................... 44
Plain Meaning Rule ................................................................................................................. 44
Uses of Legislative History ..................................................................................................... 46
Inferences Based on “Subsequent” Legislative History .......................................................... 50
Subsequent Legislation ..................................................................................................... 51
Reenactment ...................................................................................................................... 52
Acquiescence..................................................................................................................... 52
“Isolated Statements” ........................................................................................................ 53
Presidential Signing Statements .............................................................................................. 54

Contacts
Author Contact Information........................................................................................................... 56
Acknowledgments ......................................................................................................................... 57

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Statutory Interpretation: General Principles and Recent Trends

Introduction
Article I, Section 1 of the Constitution vests all federal legislative power in Congress, while
Article I, Section 7 sets forth the process for effectuating this power through passage of
legislation by both houses and either presidential approval or veto override. The exercise of the
judicial power of the United States often requires that courts construe statutes so enacted to apply
them in concrete cases and controversies. Judicial interpretation of a statute is authoritative in the
matter before the court, and may guide courts in future cases. Beyond this, the methodologies and
approaches taken by the courts in interpreting meaning also can help guide legislative drafters,
legislators, implementing agencies, and private parties.1
This report provides an overview of how the Supreme Court approaches statutory interpretation,
with particular emphasis on rules and conventions that focus on the text itself.2 That is, to inform
Congress on how the Court might go about analyzing the meaning of particular legislative
language, this report emphasizes “textualist”-based means of interpretation. “Textualism”
considers the “law” to be embodied in the language of the statute, construed according to its
“plain meaning,” which can be discerned through the aid, as necessary, of various judicially
developed rules of interpretation.3 As put by Justice Oliver Wendell Holmes in an oft-quoted
aphorism: “We do not inquire what the legislature meant; we ask only what the statute means.”4
“Textualism,” as captured in Justice Holmes’ quote, eschews explanatory legislative materials,
and inferences drawn from them and other extrinsic sources, in applying statutory language to
particular circumstances.
Despite its currency in recent decades, “textualism” is not the exclusive means of statutory
analysis, and this report also briefly discusses “intentionalist”-based means of interpretation and
the Court’s approach toward relying on legislative history and other extrinsic considerations. This
report is not intended as an examination of all schools of judicial decision making, or as an
analysis of the merits or limits of the many methodologies used by courts in applying statutes in
specific cases.5 In this regard, even though textualism may be the primary approach toward
1
Though different actors in the political and legal processes share an interest in “what a statute means,” they can come
to the issue in different contexts and with different concerns. Often, the question may not be one of what is the “best”
interpretation of particular legislative language. For example, as legislation is deliberated and compromises are struck,
legislators may be concerned with what substantive and regulatory “gaps” are being created, who likely will fill them
(e.g., executive agencies or the courts) and in accordance with what standards, and what the prospects are that the
legislature will revisit an issue because of how a statute is implemented or interpreted. Similarly, an implementing
agency may see silence or ambiguity in a statute as an implicit delegation of broad regulatory powers. Private parties
may be primarily concerned with assessing what options they have to act. The pertinent query in many instances might
be whether a particular interpretation is “reasonable,” not whether it is the “best.” For one leading commentator’s view
on compromise as part of the legislative process and why courts should be cautious in “filling in the blanks” left open
by a legislature, see Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 540-42 (1983). For a discussion
of interpretation in the administrative setting, see Michael Herz, Purposivism and Institutional Competence in Statutory
Interpretation, 2009 MICH. ST. L. REV. 89 (2009).
2
In places, the report also refers to opinions of United States courts of appeals and scholarly discussion of statutory
interpretation generally.
3
It is sometimes disputed whether the rules characterized as “substantive” canons of construction in this report, and
also variously as “overarching presumptions” or “normative canons,” properly fit within “textualism,” which most
often is associated with the linguistic, or “language,” canons.
4
Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899) cited, among other
places, at ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 29 (2012).
5
There is an extensive body of legal literature on statutory interpretation by the courts. A small sampling includes
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interpreting statutes, individual Supreme Court opinions often employ multiple types of statutory
analysis to support their conclusions and critique majority/dissenting opinions with which they do
not agree.6 Moreover, as general approaches for inferring meaning, neither textualism nor
intentionalism is rigidly mechanistic or limited to the action of the enacting Congress, with
“textualists,” for example, sometimes looking to broader legal contexts and “intentionalists” at
times venturing beyond the enacting Congress’s particular intent to preserve a statute’s purposes.7
When reading statutory text, the Supreme Court uses content-neutral canons developed by the
judiciary that focus on word usage, grammar, syntax and the like. Sometimes, the Court also
brings to bear various presumptions that reflect broader judicial concerns and can more directly
favor particular substantive results. Other conventions assist the Court in determining whether to
go beyond the corners of a statute and judicial-based rules of interpretation to also consider the
congressional deliberations that led to a statute’s passage. Although there is some overlap and
inconsistency among these rules and conventions, and although the Court’s pathway through the
mix is often not clearly foreseeable, an understanding of interpretational possibilities may
nonetheless aid Congress in choosing among various drafting options. To this end, the Court has
expressed an interest “that Congress be able to legislate against a background of clear interpretive
rules, so that it may know the effect of the language it adopts.”8

(...continued)
Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside – An Empirical Study of
Congressional Drafting, Delegation, and the Canons: Part I, 65 STANFORD L. REV. 901 (2013); Mark Tushnet,
Theory and Practice in Statutory Interpretation, 43 TEX. TECH L. REV. 1185 (2011); James J. Brudney & Corey
Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and
Workplace Law, 58 DUKE L.J. 1231 (2009); Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of
Judges and Everyone Else, 83 N.Y.U. L. REV. 769 (2008); David L. Shapiro, Continuity and Change in Statutory
Interpretation, 67 N.Y.U. L. REV. 921 (1992); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103
HARV. L. REV. 405 (1989); William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479
(1987). See also Symposium, A Reevaluation of the Canons of Statutory Interpretation, 45 VAND. L. REV. 529 (1992).
Methods of interpretation other than textualism and intentionalism, such as “pragmatism,” “purposivism,” and
“practical reasoning,” generally are more open to considering the functional effects of a particular decision, changed
circumstances since a statute’s enactment and how the current Congress might view an issue, and the broad aims of
Congress in passing a specific law. As to purposes, Justice Breyer has written that a purpose-oriented approach to
interpretation “helps further the Constitution’s democratic goals, ... helps individual statutes work better for those
whom Congress intended to help, ... [and] help[s] Congress better accomplish its own legislative work.” ` STEPHEN
BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE’S VIEW, 94, 96 (2010).
6
See, e.g., Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 NOTRE DAME L. REV. 1971
(2007). Even when the Court is unified, and its opinion relatively brief, the Court commonly rests its interpretations on
multiple, mutually reinforcing grounds. E.g., Kucana v. Holder, 558 U.S. 233 (2010).
7
See Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal
Analysis, 62 HASTINGS L.J. 221 (2010-2011).
8
Finley v. United States, 490 U.S. 545, 556 (1989). Even as the courts see themselves as providing a feedback loop to
Congress to inform legislative drafting, they also routinely characterize themselves as “faithful agents” of Congress.
However, acting as a “faithful agent” to effectuate congressional will presumes judicial familiarity with the ins and outs
of bill drafting practices and congressional procedure. A 2011-2012 survey of 137 congressional counsels with bill
drafting responsibilities revealed significant disparities between the principles and considerations that influence how
legislation is crafted and the canons of construction and other factors that guide how legislative language is interpreted
by the courts. The results of this survey are reported in a May 2013 Stanford Law Review article. Abbe R. Gluck &
Lisa Schultz Bressman, Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting,
Delegation, and the Canons: Part I, 65 STANFORD L. REV. 901 (2013).
As is evident from this report, many of the interpretive challenges faced by the Court arise from lack of completeness
and specificity. In this regard, Executive Order 12988, which in part provides guidance to agencies in drafting proposed
legislation for possible congressional consideration, directs agencies to “make every reasonable effort to ensure” that
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Of course, Congress can always amend a statute to supersede the reading given it by the Court. In
interpreting statutes, the Court recognizes that legislative power resides in Congress, and that
Congress can legislate away interpretations with which it disagrees.9 Congress has revisited
statutory issues fairly frequently to override or counter the Court’s interpretations.10 Corrective
amendment can be a lengthy and uncertain process, however.11

Statutory Text
In General—Statutory Context and Purpose
The starting point in construing a statute is the language of the statute itself. The Supreme Court
often recites the “plain meaning rule,” that, if the language of the statute is plain and
unambiguous, it must be applied according to its terms.12 There is no single test to assay the
(...continued)
proposed legislation, “as appropriate ... specifies in clear language”—(A) whether causes of action arising under the
law are subject to statutes of limitations; (B) its preemptive effect; (C) the effect on existing Federal law; (D) a clear
legal standard for affected conduct; (E) whether arbitration and other forms of dispute resolution are appropriate; (F)
whether the provisions of the law are severable if one or more is held unconstitutional; (G) the retroactive effect, if any;
(H) the applicable burdens of proof; (I) whether private parties are granted a right to sue, and, if so, what relief is
available and whether attorney’s fees are available; (J) whether state courts have jurisdiction; (K) whether
administrative remedies must be pursued prior to initiating court actions; (L) standards governing personal jurisdiction;
(M) definitions of key statutory terms; (N) applicability to the Federal Government; (O) applicability to states,
territories, the District of Columbia, and the Commonwealths of Puerto Rico and the Northern Mariana Islands; and (P)
what remedies are available, “such as money damages, civil penalties, injunctive relief, and attorney’s fees.” 61
Federal Register 4729 (February 5, 1996), reprinted in 28 U.S.C. §519. Many items in this list are addressed in this
report because statutes have lacked clear guidance on them.
However, it would be a mistake to conclude that all “lapses” of completeness and specificity result from oversights. As
observed by Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit, in an article
written in 1983: “Almost all statutes are compromises, and the cornerstone of many a compromise is the decision,
usually unexpressed, to leave certain issues unresolved.... What matters to the compromisers is reducing the chance that
their work will be invoked subsequently to achieve more, or less, than they intended, thereby upsetting the balance of
the package.” Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 540 (1983).
9
It is because “Congress is free to change this Court’s interpretation of its legislation,” that the Court adheres more
strictly to the doctrine of stare decisis, or adherence to judicial precedents, in the area of statutory construction than in
the area of constitutional interpretation, where amendment is much more difficult. Neal v. United States, 516 U.S. 284,
295 (1996) (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977)); Shepard v. United States, 544 U.S. 13, 23
(2005). “Stare decisis is usually the wise policy [for statutes], because in most matters it is more important that the
applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406
(1932) (Justice Brandeis, dissenting). See also, e.g., CSX Transportation, Inc. v. McBride, 564 U.S. ___, No. 10-235,
slip op. at 5, 10 n.4, 12-13 (June 23, 2011) (Ginsburg, J., for the Court).
10
One scholar identified 187 override statutes from 1967 to 1990. William N. Eskridge, Overriding Supreme Court
Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991). See also Deborah A. Widiss, Shadow Precedents and the
Separation of Powers, 84 NOTRE DAME L. REV. 511 (2009). One prominent override addressed the Supreme Court
decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (550 U.S. 618 (2007)), which held that a plaintiff had failed
to file a timely suit for past sex discrimination under Title VII of the Civil Rights Act. Congress superseded the
decision in the Lilly Ledbetter Fair Pay Act of 2009, which amended Title VII to clarify the time limit to sue employers
in a way that did not foreclose a suit of the type Ms. Ledbetter brought. Lilly Ledbetter Fair Pay Act of 2009, P.L. 1112, 123 Stat. 5 (2009).
11
The extent and intended effect of overrides vary, and courts may not always give an override the breadth of
application Congress desired. Deborah A. Widiss, Shadow Precedents and the Separation of Powers, 84 NOTRE DAME
L. REV. 511 (2008).
12
E.g., Sebelius v. Cloer, 569 U.S. ___, No. 12-236, slip op. (May 20, 2013).

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clarity of statutory language. The interpretive process frequently begins with a narrow focus on
the meaning of particular words and phrases. This view is commonly supplemented by
perspectives provided from elsewhere within the statute. How has Congress used or distinguished
the same terms in other places in the statute? How does the section containing the language at
issue fit within the statute’s structure? What do the structure and language of a statute reveal
about the statute’s overall purposes?
The primacy of text in statutory analysis would appear to marginalize whatever insight legislative
history or other extrinsic aids might provide. The strictures of a text-based “plain meaning rule”
were once thought honored more in the breach than in the observance. However, this perception
has changed: More often than before, statutory text is thought to be the ending point as well as the
starting point for interpretation.13
Under text-based analysis, the cardinal rule of construction is that the whole statute should be
drawn upon as necessary, with its various parts being interpreted within their broader statutory
context in a manner that furthers statutory purposes.14 Justice Scalia, who was in the vanguard of
efforts to redirect statutory construction toward statutory text and away from legislative history,
has characterized this general approach. “Statutory construction ... is a holistic endeavor. A
provision that may seem ambiguous in isolation is often clarified by the remainder of the
statutory scheme—because the same terminology is used elsewhere in a context that makes its
meaning clear, or because only one of the permissible meanings produces a substantive effect that
is compatible with the rest of the law.”15 In 1850 Chief Justice Taney described the same process:
“In expounding a statute, we must not be guided by a single sentence or member of a sentence,
but look to the provisions of the whole law, and to its object and policy.”16 Thus, the meaning of a
specific statutory directive may be shaped, for example, by that statute’s definitions of terms, by
the statute’s statement of findings and purposes, by the directive’s relationship to other specific
directives, by purposes inferred from those directives or from the statute as a whole, and by the
statute’s overall structure. Beyond this, courts also may look to the broader body of law into
which the enactment fits.17 Nevertheless, realities of the legislative process, including bundled
deal making and consolidation of multiple proposals into omnibus bills, may militate against
unstinting application of “whole act” or “whole code” methodologies.18
13

For an example of an empirical study finding decreased reliance on legislative history by the Supreme Court from
1969 to 2008, see James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing
Supreme Court Approaches in Tax Law and Workplace Law, 58 DUKE L.J. 1231, 1258 (2009).
14
Despite this principle, courts can find it difficult to read particular language as being in harmony with the tenor of
other statutory provisions or the overall statutory purpose. Same-day opinions by the Fourth and D.C. Circuits on
premium tax credits under the Affordable Care Act (ACA) illustrate different approaches courts may take. Compare
King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014) (various provisions of the ACA sufficiently indicate an
expectation that tax credits will be available to participants in all health exchanges to cast doubt on whether provision
specifically making credits available to participants in state exchanges implicitly denies credits to participants in federal
exchanges) with Halbig v. Burwell, No. 14-5018 July 22, 2014) (plain language of the ACA provision making
participants in a health exchange ‘established by the State” potentially eligible for tax credit unambiguously
disqualifies participants in federally established health exchanges).
15
United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (citations omitted).
16
United States v. Boisdoré’s Heirs, 49 U.S. (8 How.) 113, 122 (1850). For a modern example of examining statutory
language “in place,” see Brotherhood of Locomotive Engineers v. Atchison, T. & S.F.R.R., 516 U.S. 152, 157 (1996)
(purpose of Hours of Service Act, to promote safety by ensuring that fatigued employees do not operate trains, guides
the determination of whether employees’ time is “on duty”).
17
Green v. Bock Laundry Machine Co., 490 U.S. 504, 528 (1990).
18
Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside – An Empirical Study of
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The Supreme Court often cites general rules, or canons, of construction in resolving statutory
meaning. The Court, moreover, presumes “that Congress legislates with knowledge of our basic
rules of statutory construction.”19 It is well to keep in mind, however, that the overriding objective
of statutory construction has been to effectuate statutory purpose as expressed in a law’s text. As
Justice Jackson put it 68 years ago, “[h]owever well these rules may serve at times to decipher
legislative intent, they long have been subordinated to the doctrine that courts will construe the
details of an act in conformity with its dominating general purpose, will read text in the light of
context and will interpret the text so far as the meaning of the words fairly permits so as to carry
out in particular cases the generally expressed legislative policy.”20

“Language” Canons of Construction
In General
The “language” canons of construction are neutral, analytical guides for discerning the meaning
of particular text that might otherwise appear unclear.21 That is to say, these canons are based on
general linguistic principles, many of them of the common-sense variety, for drawing inferences
about the meaning of language. The meaning of a word or phrase can be shaped by its ordinary or
specialized meaning, its context in the statute, the usage of similar terms in the statute, the
statute’s structure, and other factors. The language canons are “axioms of experience,” but none
“preclude[s] consideration of persuasive [contrary] evidence if it exists.”22 Each canon provides
its own perspective, and different takes from different views can give different insights into the
meaning of what is being observed. Considering and weighing the value of various views would
appear to be a sound process for ensuring well-reasoned interpretations. However, the language
canons are intrinsic aids only, not “rules of law.” Discerning what Congress probably meant by
particular language for the purpose of applying it to a particular set of facts can be a difficult
judicial exercise that is not amenable to formulaic resolution.

(...continued)
Congressional Drafting, Delegation, and the Canons: Part I, 65 STANFORD L. REV. 901, 936 (2013).
19
McNary v. Haitian Refugee Center, 498 U.S. 479, 496 (1991) (referring to presumption favoring judicial review of
administrative action). See also United States v. Fausto, 484 U.S. 439, 463 n.9 (1988) (Stevens, J., dissenting) (Court
presumes that “Congress is aware of this longstanding presumption [disfavoring repeals by implication] and that
Congress relies on it in drafting legislation.”).
20
SEC v. Joiner, 320 U.S. 344, 350-51 (1943). Justice Jackson explained that some of the canons derived “from
sources that were hostile toward the legislative process itself,” and that viewed legislation as “‘interference’” with the
common law process of “‘intelligent judicial administration.’” 320 U.S. at 350 & n.7 (quoting the first edition of
SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION). A more recent instance of congressional purpose and
statutory context trumping a “canon” occurred in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 594599 (2004), the Court there determining that the word “age” is used in different senses in different parts of the Age
Discrimination in Employment Act, and consequently the presumption of uniform usage throughout a statute should
not be followed.
21
This report separately addresses “substantive” canons of construction, which often are referred to as “normative”
canons or “overarching presumptions.” Unlike the linguistic rules that are the “language” canons, the substantive
canons derive from broader judicial notions of constitutionalism, federalism, effective judicial administration, and other
policy concerns of the courts. Unless they are rebutted, these presumptions can favor particular outcomes.
22
Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (Holmes, J., for Court).

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The sheer number and variety of canons have been cited to emphasize their limited utility as a
stand-alone method of statutory construction. Still influential, for example, is a 1950 article by
Professor Karl Llewellyn that lists many canons (both language canons and substantive canons)
juxtaposed to equally “correct” but opposing canons.23 Professor Llewellyn’s main point was to
argue that judges should take current circumstances into account in applying a statute in a case—
he was critical of the impression that “formalism” gave of there being “only one single correct
answer possible” in reading text. Nevertheless, many have broadened his message into a charge
that canons are mere pretext because judges may pick and choose among them to achieve
whatever result they desire.
However, accepting that there may be more than one “correct” answer in resolving the meaning
of a statutory provision—a premise that seems unremarkable in many cases at the Supreme Court
level24—does not necessarily mean that a Court majority begins with a preferred policy outcome
and then marshals only those canons that support it. Given an array of established templates to
guide interpretation, one may be a particularly apt fit in a given case, and the case’s outcome will
in large measure be driven by the rationale of the canon applied. This might particularly be so
when a substantive canon of interpretation (e.g., avoidance of constitutional issues) is in play.
(These canons are discussed below.)
In any event, one possible suggestion of the indeterminacy of canons is that statutory construction
should be a narrow pursuit, not a broader one:
[C]anons of construction are no more than rules of thumb that help courts determine the
meaning of legislation, and in interpreting a statute a court should always turn first to one,
cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute
what it means and means in a statute what it says there. When the words of a statute are
unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”25

Ordinary and Specialized Meaning
Determining how a statute is to be applied often comes down to considering what a particular
word or phrase means as used in the statute. In this exercise, a threshold inquiry is whether
language is being used in the “ordinary,” “general dictionary” sense or in a narrower, specialized
sense or as a term of art.26 Also, the appropriate reference is what a term meant to Members when
Congress passed the statute, not its meaning at the time the statute is being adjudicated.27
23
Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To
Be Construed, 3 VAND. L. REV. 395 (1950).
24
“As is true with most of the statutory interpretation questions that come before this Court, the question in this case is
not like a jigsaw puzzle. There is simply no perfect solution to the problem before us.” Corley v. United States, 556
U.S. 303, 326 (2009) (Alito, J., dissenting).
25
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted). A canon of construction should
not be followed “when application would be tantamount to a formalistic disregard of congressional intent.” Rice v.
Rehner, 463 U.S. 713, 732 (1983).
26
On occasion, disagreement within a sharply divided Court plays out over whether a term is being used in a
specialized sense or in accordance with ordinary meaning. See, e.g., Sullivan v. Stroop, 496 U.S. 478 (1990) (fiveJustice majority holding that “child support” in the AFDC statute is restricted to that term’s specialized use in the Child
Support program under the Social Security Act, while four-Justice minority argues that “child support” in the AFDC
statute has a broader, common use meaning). See also Bruesewitz v. Wyeth LLC 562 U.S. ___, No. 09-152, slip op. at
9-10 (February 22, 2011) and Bruesewitz, slip op. at 7-9 (Sotomayor, J., dissenting). At other times, a unanimous Court
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Terms of Art
If the word or phrase is defined in the statute (federal statutes frequently collect definitions in a
“definitions” section), or elsewhere in the United States Code,28 then that definition governs if
applicable in the context used.29 Even if the word or phrase is not defined by statute, it may have
an accepted meaning in the area of law addressed by the statute,30 it may have been borrowed
from another statute under which it had an accepted meaning,31 or it may have had an accepted
and specialized meaning at common law.32 In each of these situations the accepted meaning
(...continued)
has interpreted what might appear to be a term of art by its ordinary meaning. See Wall v. Kholi, 562 U.S. ___, No. 09868 (March 7, 2011) (meaning of “collateral review” in habeas corpus statute analyzed by separate examination of the
ordinary dictionary meanings of “collateral” and “review”). In other cases, the Court may view a term’s ordinary
meaning, technical meaning, and statutory context as all pointing to a single interpretation. E.g., Taniguchi v. Kan
Pacific Saipan, Ltd., 566 U.S. ___, No. 10-1472, slip op. (May 21, 2012).
27
Saint Francis College v. Khazraji, 481 U.S. 604 (1987). The Court there held that a citizen of Arab ancestry could
bring an action under 42 U.S.C. §1981, which gives to all persons certain rights to the extent they are enjoyed by
“white citizens”: “Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at
the time §1981 became law [in the 19th century].” Id. at 610. See also, e.g., Cuomo v. Clearing House Assn., L.L.C.,
557 U.S. 519 ( 2009), where the ability of a state to take certain enforcement actions against national banks depended
on the meaning of “visitorial powers” when the National Bank Act was enacted in 1864.
28
The Dictionary Act, ch. 388, 61 Stat. 633 (1947), as amended, 1 U.S.C. §§1-6, has definitions of a few common
terms used in federal statutes (e.g., “person,” “vessel,” and “vehicle”). These definitions govern in all federal statutes
“unless the context indicates otherwise.” See also Stewart v. Dutra Constr. Co., 543 U.S. 481, 489 (2005) (relying on
Dictionary Act’s definition of “vessel”).
That a word is defined in statute does not necessarily mean, however, that other forms of the word are bound by the
definition. Thus, a statutory definition of “person” to include corporations did not govern whether “personal” privacy
under the statute covered corporations, and not individuals only: “[I]n ordinary usage, a noun and its adjective form
may have meanings as disparate as any two unrelated words.” F.C.C. v. AT&T, 562 U.S. ___, No. 09-1279, slip op. at
5 (March 1, 2011) (using “crab” and “crabbed” as an example).
29
Colautti v. Franklin, 439 U.S. 379, 392 (1979). If the context indicates otherwise, i.e., if a mechanical application of
a statutory definition throughout a statute would create an “obvious incongruity” or frustrate an evident statutory
purpose for a particular provision, then it is permissible to depart from the definition. Lawson v. Suwannee S.S. Co.,
336 U.S. 198, 201 (1949); Rowland v. California Men’s Colony, 506 U.S. 194 (1993) (context indicates otherwise; the
term “person” as used in 28 U.S.C. §1915(a) refers only to individuals and does not carry its Dictionary Act definition,
which includes associations and artificial entities). But, as noted below, a term appearing in several places in a statute is
ordinarily interpreted as having the same meaning each time it appears.
30
See, e.g., Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (five-Justice majority holding that “child support” in the
AFDC statute is restricted to that term’s specialized use in the Child Support program under the Social Security Act).
Note also that “where a phrase in a statute appears to have become a term of art ..., any attempt to break down the term
into its constituent words is not apt to illuminate its meaning.” Id. But see Wall v. Kholi, 562 U.S. ___, No. 09-868
(March 7, 2011) (meaning of “collateral review” in habeas corpus statute analyzed by separate examination of the
ordinary dictionary meanings of “collateral” and “review”).
31
In appropriate circumstances, courts will assume that “adoption of the wording of a statute from another legislative
jurisdiction carries with it the previous judicial interpretations of the wording.” Carolene Products Co. v. United States,
323 U.S. 18, 26 (1944) (finding, however, that circumstances were inappropriate for reliance on the principle). For the
presumption to operate, the previous judicial interpretations must have been “known and settled.” Capital Traction Co.
v. Hof, 174 U.S. 1, 36 (1899). See also Yates v. United States, 354 U.S. 298, 310 (1957) (in the absence of legislative
history indicating that decisions of lower state courts were called to Congress’s attention, Court “should not assume
that Congress was aware of them”). Variations in statutory wording may also refute the suggestion that Congress
borrowed an interpretation. Shannon v. United States, 512 U.S. 573, 581 (1994) (Congress did not borrow the terms of
the Insanity Defense Reform Act of 1984 from the District of Columbia Code.).
32
See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) (relying on traditional
common law agency principles for meaning of term “employee”). See also Nationwide Mut. Ins. Co. v. Darden, 503
U.S. 318, 323 (1992) (following the same course after finding ERISA’s “circular” definition of “employee” to be
wanting); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444 (2003) (same construction of
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governs33 and the word or phrase is considered a technical term or “term of art.” Justice Jackson
explained why this reliance is appropriate:
[W]here Congress borrows terms of art in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from which it was taken and
the meaning its use will convey to the judicial mind unless otherwise instructed. In such a
case, absence of contrary direction may be taken as satisfaction with widely accepted
definitions, not as departure from them.34

Ordinary Meaning and Dictionary Definitions
Words that are not terms of art and that are not statutorily defined are customarily given their
ordinary meanings, frequently derived from the dictionary.35 Thus, the Court has relied on regular
dictionary definitions to interpret the word “marketing” as used in the Plant Variety Protection
Act,36 and the word “principal” as used to modify a taxpayer’s place of business for purposes of
an income tax deduction,37 and relied on Black’s Law Dictionary for the meaning of the word
“cognizable” as used in the Federal Tort Claims Act to identify certain causes of action.38 At
times, the ordinary meaning of a term in an everyday dictionary has prevailed over an
interpretation given to a term in circuit court precedents.39
Of course application of dictionary definitions is not always a clear course;40 many words have
several meanings, and context must guide choice among them, where possible.41 However,
(...continued)
similarly “circular” definition of “employee” in ADA).
33
“[W]here a common law principle is well established, ... the courts may take it as a given that Congress has legislated
with an expectation that the principle will apply except ‘when a statutory purpose to the contrary is evident.’” Astoria
Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (quoting Isbrandtsen Co. v. Johnson, 343 U.S.
779, 783 (1952)).
34
Morissette v. United States, 342 U.S. 246, 263 (1952).
35
In the absence of a statutory definition, “we construe a statutory term in accordance with its ordinary or natural
meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). See also, e.g., Mohamad v. Palestinian Authority, 566 ___, No.
11-88, slip op. (April 18, 2012) (“individual,” as used in the Torture Victim Protection Act, does not include an
organization).
36
Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995).
37
Commissioner v. Soliman, 506 U.S. 168, 174 (1993).
38
FDIC v. Meyer, 510 U.S. 471, 476 (1994).
39
E.g., Octane Fitness, LLC v. Icon Health & Fitness, Inc., 572 U.S. ___, No. 12-1184, slip op. (April 29, 2014).
40
See Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. ___, No. 09-525, slip op. (June 13, 2011), where
a five-Justice majority cites the ordinary dictionary meaning of “make” to narrowly interpret “mak[ing] a statement”
under SEC Rule 10b-5, and the four-Justice dissent, without dictionary citation and using “everyday” examples,
characterizes the majority’s interpretation as too restrictive.
41
See, e.g., MCI Tel. Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994) (FCC’s authority to “modify”
requirements does not include the authority to make tariff filing optional; aberrant dictionary meaning “to make a basic
or important change” is antithetical to the principal meaning of incremental change and more than the statute can bear);
and Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (preemption of state laws that prohibit “any entity”
from providing telecommunications service means, in context, “any private entity,” and does not preempt a state law
prohibiting local governments from providing such services). If the court views the issue as one of deference to an
administrative interpretation, then the agency’s choice of one dictionary definition over another may indicate sufficient
“reasonableness.” Smiley v. Citibank (South Dakota), 517 U.S. 735, 744-47 (1996). See also Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. ___, No. 09-834, slip op. (March 22, 2011) (holding that “filing” a complaint
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“[a]mbiguity is a creature not of definitional possibilities but of statutory context.”42 Consider two
cases in which context did not clearly point to whether a term was to be given its broadest
dictionary meaning or was to be construed narrowly according to “common understanding.” In
one case, the Supreme Court concluded that “use of a firearm” in the commission of a drug
offense or crime of violence included trading a gun for drugs; that is, “use of a firearm” was not
confined to its use as a weapon.43 This conclusion may be compared to a finding that purchasing
drugs over a cell phone did not constitute the felony of “facilitating” drug trafficking through a
communication device: “[S]tatutes are not read as a collection of isolated phrases ... ‘A word in a
statute may or may not extend to the outer limits of its definitional possibilities.’ We think the
word here does not.”44 In close cases such as these, the Court may go beyond the words of a
statute for guidance and look to the statute’s broader purpose or its fit with other laws.45 As Judge
Learned Hand observed, “it is one of the surest indexes of a mature and developed jurisprudence
not to make a fortress out of the dictionary; but to remember that statutes always have some
purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide
to their meaning.”46

And/Or
Ordinarily, as in everyday English, use of the conjunctive “and” in a list means that all of the
listed requirements must be satisfied,47 while use of the disjunctive “or” means that only one of
the listed requirements need be satisfied.48 Courts do not apply these meanings “inexorably,”
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included complaints made orally).
42
Brown v. Gardner, 513 U.S. 115, 118 (1994).
43
Smith v. United States, 508 U.S. 223 (1993). Dissenting, Justice Scalia argued for a narrower reading: “[To] use an
instrumentality normally means to use it for its intended purpose. When someone asks ‘Do you use a cane?’ he is not
inquiring whether you have your grandfather’s silver-handled walking-stick on display in the hall; he wants to know
whether you walk with a cane. Similarly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose,
i.e., as a weapon.” Id. at 242. The Court had less difficulty with the provision in 1995, overruling a lower court’s
holding that proximity and accessibility of a firearm are alone sufficient to establish “use.” Bailey v. United States, 516
U.S. 137 (1995) (driving car with gun located in bag in car’s trunk does not constitute “use” of gun; person who sold
drugs after retrieving them from room in which gun was found in a locked trunk in a closet did not “use” that gun in
sale). The Bailey Court, however, defined “use” in such a way (“active employment”) as to leave the Smith holding
intact. See also Muscarello v. United States, 524 U.S. 125 (1998) (holding that the companion phrase “carries a
firearm,” found in the same statutory provision, is a broader category that includes transporting drugs with a handgun
locked in the glove compartment of a vehicle).
44
Abuelhawa v. United States, 556 U.S. 816, 819-20 (2009) (quoting Dolan v. Postal Service, 546 U.S. 481, 486
(2006)) (citations omitted).
45
The majority in Smith, which construed “use of a firearm” broadly, stated there was a general understanding that
drugs and firearms are a dangerous combination and saw no reason why Congress would want to distinguish use of a
firearm as a weapon in a drug crime from use of a firearm in barter in a drug crime; according to the majority, both
circumstances involved a grave possibility of violence and death. 508 U.S. at 240. The unanimous Court in Abuelhawa,
which construed “facilitate” narrowly, stated that a broad reading (which would have led to higher criminal penalties)
could be inconsistent with the gradation of similar and more serious offenses. 556 U.S. at 821-23.
46
Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Justice Stevens expressed a preference for established
interpretation over dictionary definitions. “In a contest between the dictionary and the doctrine of stare decisis, the
latter clearly wins.” Hibbs v. Winn, 542 U.S. 88, 113 (2004) (Stevens, J., concurring).
47
See, e.g., Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284, 1292 (D. N. Mex. 1996).
48
See, e.g., Zorich v. Long Beach Fire and Ambulance Serv., 118 F.3d 682, 684 (9th Cir. 1997); United States v.
O’Driscoll, 761 F.2d 589, 597-98 (10th Cir. 1985). A corollary is that use of the disjunctive “or” creates “mutually
exclusive” conditions that can rule out mixing and matching. United States v. Williams, 326 F.3d 535, 541 (4th Cir.
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however; if a “strict grammatical construction” will frustrate evident legislative intent, a court
may read “and” as “or,” or “or” as “and.”49 Moreover, statutory context can render the distinction
secondary.50

Definite/Indefinite Article
As in common usage, a drafter’s choice between the definite and indefinite article can affect
meaning. “The definite article ‘the’ particularizes the subject which it precedes. It is a word of
limitation as opposed to the indefinite or generalizing force of ‘a’ or ‘an.’”51

Shall/May
Use of “shall” and “may” in statutes also mirrors common usage; ordinarily “shall” is mandatory
and “may” is permissive.52 These words must be read in their broader statutory context, however,
the issue often being whether the statutory directive itself is mandatory or permissive.53 Use of
both words in the same provision can underscore their different meanings,54 and often the context

(...continued)
2003) (“A crime may qualify as a serious drug offense by meeting all the requirements of (i) or all the requirements of
(ii), but not some of the requirements of (i) and some of (ii).”).
49
See, e.g., United States v. Moore, 613 F.2d 1029 (D.C. Cir. 1979); De Sylva v. Ballentine, 351 U.S. 570, 573 (1956)
(“[T]he word ‘or’ is often used as a careless substitute for the word ‘and.’”). Both “and” and “or” are contextdependent, and each word “is itself semantically ambiguous, and can be used in two quite different senses.” LAWRENCE
E. FILSON, THE LEGISLATIVE DRAFTER’S DESK REFERENCE, §21.10 (1992).
50
See, e.g., United States v. 141st St. Corp., 911 F.2d 870 (2d Cir. 1990) (holding that an affirmative defense to
forfeiture of real property used in a drug offense, applicable if the offense was committed “without the knowledge or
consent” of the property owner, applies if the property owner had knowledge of the crime, did not consent, and took all
reasonable steps to prevent illicit use of his property).
51
American Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir. 2000). See also Reid v. Angelone, 369 F.3d 363, 367 (4th
Cir. 2004) (“Because Congress used the definite article ‘the,’ we conclude that ... there is only one order subject to the
requirements.”); Warner-Lambert Corp. v. Apotex Corp., 316 F.3d 1348, 1356 (Fed. Cir. 2003) (reference to “the” use
of a drug is a reference to an FDA-approved use, not to “a” use or “any” use); Freytag v. Commissioner, 501 U.S. 868,
902 (1991) (Scalia, J., concurring) (contending that use of the definite article in the Constitution’s conferral of
appointment authority on “the Courts of Law” “obviously narrows the class of eligible ‘Courts of Law’ to those courts
of law envisioned by the Constitution”). But cf. Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002) (reference in a
preemption clause to “a law or regulation” “implies a discreteness—which is embodied in statutes and regulations—
that is not present in the common law”).
52
“The mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion.” Lexecon, Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998). See also, e.g., EPA v. EME Homer City Generation, 572 U.S.
___, Nos. 12-1182 and 12-1183, slip op. (April 29, 2014). “The use of a permissive verb—‘may review’ instead of
‘shall review’—suggests a discretionary rather than mandatory review process.” Rastelli v. Warden, Metro.
Correctional Center, 782 F.2d 17, 23 (2d Cir. 1986). “Should” sometimes is substituted for “may” as a permissive
word. Union Elec. Co. v. Consolidation Coal Co., 188 F.3d 998, 1001 (8th Cir. 1999). “Will” and “must” can be
additional mandatory words. Bankers Ins. Co. v. Florida Res. Prop. & Cas. Jt. Underwriting Ass’n, 137 F.3d 1293,
1298 (11th Cir. 1998).
53
See IA SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION §25:4 (Norman J. Singer ed., 6th ed. 2002 rev.).
54
See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress’ use of the permissive ‘may’ ... contrasts with the
legislators’ use of a mandatory ‘shall’ in the very same section.”); and United States ex rel. Siegel v. Thoman, 156 U.S.
353, 359-60 (1895) (“In the law to be construed here it is evident that the word ‘may’ is used in special
contradistinction to the word ‘shall.’”).

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will confirm that the ordinary meaning of one or the other was intended.55 Occasionally, however,
context will trump ordinary meaning.56

Singular/Plural
An elementary rule of statutory construction is that the singular includes the plural, and viceversa.57 Thus, a statutory directive that the Secretary of Transportation require automakers to
install a warning system in new cars to alert drivers “when a tire is significantly under-inflated” is
only satisfied by a system capable of a separate warning for each tire, so that a driver knows
when two tires on the same side, or all four tires, are significantly under-inflated.58

General, Specific, and Associated Words
Ordinarily, specific terms in a statute prevail over general terms.59 “However inclusive may be the
general language of a statute, it will not be held to apply to a matter specifically dealt with in
another part of the same enactment.”60 In one case citing this canon, the Court examined whether
time granted to a defendant to prepare pretrial motions extended the Speedy Trial Act’s deadline
for the government to begin a trial. The act directed that the clock stop for “[a]ny period of delay
resulting from other proceedings concerning the defendant, including but not limited to ... (D)
delay resulting from any pretrial motion, from the filing of the motion through conclusion....” The
Court held that this directive could not include time expended preparing motions: despite “delays
from other proceedings” not being limited to those contained in a list of illustrative
subparagraphs, the specific language in subparagraph (D) on delays due to pretrial motions,
beginning with their being filed, left no room for delays related to preparing motions prior to their
being filed.61 As with other canons, context is critical.62
Another interpretational guide used from time to time is the principle noscitur a sociis, that
“words grouped in a list should be given related meaning.”63 Thus, a tax provision that
55

See, e.g., Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (“Doubt ... is dispelled when we pass from the words alone to a
view of [the statute’s] ends and aims.”).
56
See, e.g., Moore v. Illinois Cent R.R., 312 U.S. 630, 635 (1941) (substitution of “may” for “shall” “was not, we
think, an indication of a change in policy, but was instead a clarification of the [Railway Labor Act’s] original purpose
[of establishing] a system for peaceful adjustment and mediation voluntary in its nature”). See also Gutierrez de
Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995) (“shall” sometimes means “may”).
57
The Dictionary Act provides that “unless the context indicates otherwise,” “words importing the singular include and
apply to several persons, parties, or things; words importing the plural include the singular.” 1 U.S.C. §1.
58
Public Citizen, Inc. v. Mineta, 340 F.3d 39, 54 (2d Cir. 2003).
59
E.g., Radlax Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. ___, No. 11-166, slip op. (May 29, 2012).
60
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957) (citations omitted). The same principle is
used to resolve conflict between two statutes. See, e.g., United States v. Estate of Romani, 523 U.S. 517, 532 (1998)
(later, more specific statute governs). See also Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (a general statute will
not be held to have repealed by implication a more specific one unless there is “clear intention otherwise”).
61
Bloate v. U.S., 559 U.S. 196 (2010).
62
See, e.g., Adams v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805).
63
Dole v. United Steelworkers of America, 494 U.S. 26, 36 (1990); Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)
(reading a statutory definition as limited by the first of several grouped words); Freeman v. Quicken Loans, 566 U.S.
___, No. 1042, slip op. (May 24, 2012) (terms in phrase prohibiting giving or accepting of any “portion, split, or
percentage” of a real estate settlement charge unless a service was actually rendered reinforce one another and the
conclusion that the prohibition does not cover a loan provider assessing an unearned fee for itself alone).

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advantaged “income resulting from exploration, discovery, or prospecting” was held not to apply
to income derived from patented cameras and pharmaceuticals that the taxpayers had
“discovered.” “Discovery,” as used in conjunction with “exploration” and “prospecting,” limited
the scope of “discovery” to activities associated with oil and mineral extraction.64 Similarly, the
Court inferred that “defalcation” in a bankruptcy code provision required an element of
intentional wrongdoing based on its placement in the phrase “fraud [,] defalcation ...,
embezzlement or larceny.”65 Because “fraud,” “embezzlement,” and “larceny” require intentional
wrongdoing, “defalcation” presumably is similarly intended.66
On the other hand, the term “administrative” in the phrase “a congressional, administrative, or
Government Accounting Office [sic] report, hearing, audit or investigation” was held to extend
beyond federal administrative entities to include the work of state bodies as well.67 Similarly, the
term “report” in the same phrase was broadly construed to cover raw copies of contractor
documents obtained through the Freedom of Information Act: the placement of “report” within a
list including “hearings, audits, and investigations” did not, as the Second Circuit had concluded,
limit “reports” to materials that also analyzed, synthesized, or explained the information
presented.68 As with other language canons, noscitur a sociis can be a factor in interpretation, but
“is by no means a hard and fast rule....”69
A corollary, ejusdem generis, instructs that, “where general words follow an enumeration of
specific items, the general words are read as applying only to other items akin to those
specifically enumerated.”70 Thus, an exemption from arbitration for “contracts of employment of
seamen, railroad employees, or any other class of workers engaged in ... commerce” did not apply
to the case of a salesperson at a consumer electronics store: only contracts for the employment of
individuals who transported goods and materials were to be exempted.71 At times, however,
64
Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). “The maxim noscitur a sociis, that a word is known by the
company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in
order to avoid the giving of unintended breadth to Acts of Congress.” Id.
65
11 U.S.C. §523(a)(4).
66
Bullock v. BankChampaign, 569 U.S. ___, No. 11-1518, slip op. (May 13, 2013).
67
Graham County Soil and Water Conservation District v. U.S., 559 U.S. 280 (2010). “The substantive connection, or
fit, between the terms ‘congressional,’ ‘administrative,’ ‘and ‘GAO’ is not so tight or so self-evident as to demand that
we ‘rob’ any one of them ‘of its independent and ordinary significance.’” Id. at 288 (citations omitted). The language at
issue in Graham County barred qui tam actions under the False Claims Act that were based on certain publicly
available government documents, and a broad interpretation of the language effectively limited the circumstances in
which private parties could sue to recover funds fraudulently obtained from the government by others.
68
Schindler Elevator Corp. v. United States, 563 U.S. ___, No. 10-188, slip op. (May 16, 2011).
69
Beecham v. United States, 511 U.S. 368, 371 (1994). The Court often explains that this and similar canons are only
vehicles for ascertaining the correct meaning of otherwise uncertain terms. See Norfolk & Western Ry. v. Train
Dispatchers, 499 U.S. 117, 129 (1991) (“The canon does not control ... when the whole context dictates a different
conclusion.”); United States v. Turkette, 452 U.S. 576, 580-82 (1981) (appeals court erred in finding that a second
category was merely a more general description of the first; context and language instead reveal two contrasting
categories).
70
Harrison v. PPG Industries, Inc., 446 U.S. 578, 588 (1980); Washington Dep’t of Social Servs. v. Keffeler, 537 U.S.
371, 384 (2003) (relying on both noscitur a sociis and ejusdem generis). The principle cannot be applied if the
enumerated categories are too “disparate.” Arcadia v. Ohio Power Co., 498 U.S. 73, 78 (1990). And, of course, context
may reveal that application is inappropriate. Norfolk & Western Ry. v. Train Dispatchers, 499 U.S. 117, 129 (1991)
(exemption of carriers from “the antitrust laws and all other law, including State and municipal law,” is “clear, broad
and unqualified,” and obviously applies beyond antitrust and similar laws).
71
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001). “Canons of construction need not be conclusive and
are often countered, of course, by some maxim pointing in a different direction. The application of the rule of ejusdem
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discerning commonalities among particulars to guide interpretation of the general is not so
straightforward.72

Grammatical Rules, Punctuation
The old rule, borrowed from English law, was that “[p]unctuation is no part of the statute,” and
that “[c]ourts will ... disregard the punctuation, or repunctuate, if need be, to render the true
meaning of the statute.”73 Nevertheless, the modern Court now recognizes that punctuation may
clarify meaning, even though it remains reluctant to place primary importance on it. “A statute’s
plain meaning must be enforced ..., and the meaning of a statute will typically heed the
commands of its punctuation.”74 So said the Court—not, however, in applying a plain meaning
consistent with punctuation, but instead while justifying a departure from that meaning.
“Overwhelming evidence from the structure, language, and subject matter” of the law led the
Court to conclude that in this unusual case the punctuation at issue resulted from “a simple
scrivener’s error.”75
The Court assumes that a legislative drafter writes precisely and in accordance with the rules of
grammar.76 Verb tense and the like count.77 But, as with other interpretive challenges, more than
one grammatical principle potentially might apply, and these principles might point to different
interpretations. The interpreter is left with a choice of which principle applies most aptly. As an
(...continued)
generis in this case, however, is in full accord with other sound considerations bearing upon proper interpretation of the
clause.” Id. at 115. Compare CSX Transportation, Inc. v. Alabama Dept. of Revenue, 562 U.S. ___, No. 09-520, slip
op. at 16-17 (February 22, 2011) (a prohibition against “impos[ing] another tax that discriminates” against railroads
that followed a list of prohibited property taxes on railroad property held not limited to other property taxes; the
prohibition was distinct and independent from the listed property tax prohibitions and not a catch-all that rendered the
more specific prohibitions meaningless).
72
During a five-year period, the Court addressed the scope of the term “violent felony” in the Armed Career Criminal
Act in four separate cases. In the ACCA, “violent felony” includes, inter alia, a crime that “is burglary, arson, or
extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical
injury to another” (emphasis added). In James v. United States, a five-Justice majority found that attempted burglary fit
within the residual clause because it entails a significant risk of bodily injury, which, according to the majority, is the
most relevant common attribute of the listed crimes, and not that they are all completed crimes, as the petitioner had
argued. 550 U.S. 192 (2007). In Begay v. United States, the majority found DUI to fall outside the residual clause
because it is too dissimilar to the listed crimes, being a crime that need not be deliberate, among other things. 553 U.S.
137 (2008). With somewhat less emphasis on ejusdem generis reasoning, a unanimous Court found failure to report to
prison beyond the residual clause in Chambers v. United States, finding the crime to be passive and not aggressive
conduct as the listed crimes are. 555 U.S. 122 (2009). Two years later, a majority of the Court in Sykes v. United States
found the crime of vehicle flight to carry a level of risk, and a mens rea requirement, comparable to the listed crimes
and, therefore, within the residual clause. 564 U.S. ___, No. 09-11311, slip op. (June 9, 2011). Dissenting in Sykes,
Justice Scalia reviewed the several tests the Court had derived from its various characterizations of the listed crimes in
the ACCA cases and declared the residual clause to be unconstitutionally vague.
73
Hammock v. Loan and Trust Co., 105 U.S. (15 Otto) 77, 84-85 (1881) (disregarding a comma). See also United
States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83 (1932) (also disregarding a comma).
74
United States Nat’l Bank of Oregon v. Independent Ins. Agents, 508 U.S. 439, 454 (1993).
75
Id. at 462.
76
See, e.g., Arcadia v. Ohio Power Co., 498 U.S. 73, 79 (1990) (“In casual conversation, perhaps, such absent-minded
duplication and omission are possible, but Congress is not presumed to draft its laws that way.”).
77
Ingalls Shipbuilding v. Director, OWCP, 519 U.S. 248, 255 (1997) (present tense of verb is an element of plain
meaning); Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (interpretation required by “plain text” derived from
present tense).

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example, first consider the “rule of the last antecedent.” That rule holds that a limiting clause or
phrase should ordinarily be read as modifying only the noun or phrase that it immediately
follows. One application of this rule looked at language that denies SSI disability to an individual
who is able to “do his previous work ... or engage in any other kind of substantial gainful work
which exists in the national economy.” The claimant’s job as an elevator operator had been
eliminated, and her subsequent SSI application rested in part on the assertion that elevator
operator work no longer existed in significant numbers in the national economy. A unanimous
Court upheld the government’s position that the claimant was ineligible for SSI if she was
physically capable of doing elevator operator work at all: the phrase “which exists in the national
economy” applied only to “other kind of substantial gainful work.”78
Distinct from the rule of the last antecedent is a principle enunciated in Port Rico Railway, Light
& Power Co. v. Mor: “When several words are followed by a clause which is applicable as much
to the first and other words as the last, the natural construction of the language demands that the
clause be read as applicable to all.”79 A provision of the federal criminal code mandates restitution
for the full amount of the victim’s losses, which are defined to include five specific types of loss
(e.g., medical costs, lost income) and “any other losses suffered by the victim as a proximate
result of the offense.”80 The Court held that the phrase “as a proximate result of the offense”
modified each of the five separately listed types of losses.81
Though refusal always to be bound by the rules of grammar82 and punctuation gives the Court
flexibility in construing statutes, this is not to say that grammatical rules should be disregarded in
statutory drafting. These rules remain strong guides. There are many cases decided on the basis of
what constitutes the most “natural reading” of a statute according to common rules of grammar,
without extended reference to particular canons or other interpretational aids.83

Statutory Language Not to be Construed as “Mere Surplusage”
A basic principle of statutory interpretation is that courts should “give effect, if possible, to every
clause and word of a statute, avoiding, if it may be, any construction which implies that the
legislature was ignorant of the meaning of the language it employed.”84 The modern variant is
78

Barnhart v. Thomas, 540 U.S. 20 (2003). An example of the “rule of the last antecedent” not being strictly followed
is Nobelman v. American Savings Bank, 508 U.S. 324, 330-31 (1993). Under a section of the Bankruptcy Code, a
bankruptcy plan can modify the “rights of holders of secured claims, other than a claim secured only by [the debtor’s
residence].” The term “secured claim” is defined elsewhere in the Bankruptcy Code as being limited to the fair market
value of the underlying collateral. In this instance, the rule of the last antecedent would link the modifying clause to
“claims” and imply that a home mortgage does not cover an amount greater than a home’s fair market value. For policy
and practical reasons, however, the Court read the modifying clause as saying “other than the rights of holders of a
claim secured only by the debtor’s residence.” See also Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)
(“The statute is awkward, and even ungrammatical; but that does not make it ambiguous.”).
79
253 U.S. 345, 348 (1920).
80
18 U.S.C. §2259(b).
81
Paroline v. United States, 572 U.S. ___, No. 12-8561, slip op. at 9 (April 23, 2014).
82
So too, in another case the Court shied away from “the most natural grammatical reading” of a statute to avoid an
interpretation that would have raised a serious issue of constitutionality. United States v. X-Citement Video, Inc., 513
U.S. 64, 68 (1994). Justice Scalia, dissenting, insisted that the language was perfectly clear, and that the rejected
interpretation was “the only grammatical reading.” Id. at 81.
83
E.g., Flores-Figueroa v. United States, 556 U.S.646 (2009).
84
Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).

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that statutes should be construed “so as to avoid rendering superfluous” any statutory language:
“A statute should be construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant....”85 A related principle applies to statutory
amendments: there is a “general presumption” that, “when Congress alters the words of a statute,
it must intend to change the statute’s meaning.”86 Resistance to treating statutory words as mere
surplusage “should be heightened when the words describe an element of a criminal offense.”87
There can be differences of opinion, of course, as to when it is “possible” to give effect to all
statutory language – that is, to search for distinctions between similar terms or apparently
redundant language without distorting the significance of those distinctions -- and when the
general rule should give way to a more “common sense” interpretation.88
The presumption against surplusage also can guide interpretation of “redundancies across
statutes,” but the canon “is strongest when an interpretation would render superfluous another
part of the same statutory scheme.”89 Two overlapping statutes may be given effect so long as
there is no “positive repugnance” between them.90
A converse of the rule that courts should not read statutory language as surplusage is that, as
discussed below, courts should not add language that Congress has not included.
85

Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoted in Corley v. United States, 556 U.S. 303, 314 (2009)); Astoria
Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991); Sprietsma v. Mercury Marine, 537 U.S. 51, 63
(2003) (interpreting word “law” broadly could render word “regulation” superfluous in preemption clause applicable to
a state “law or regulation”). See also Bailey v. United States, 516 U.S. 137, 146 (1995) (“We assume that Congress
used two terms because it intended each term to have a particular, nonsuperfluous meaning.”) (rejecting interpretation
that would have made “uses” and “carries” redundant in statute penalizing using or carrying a firearm in commission of
offense). In a case analyzing the significance of the adjective “applicable” in a provision of the Bankruptcy Code, the
majority opinion relied on the presumption again superfluity to hold that “applicable” had a limiting effect, whereas
Justice Scalia, in dissent, observed that “[t]he canon against superfluity is not a canon against verbosity. When a
thought could have been expressed more concisely, one does not always have to cast about for some additional
meaning to the word or phrase that could have been dispensed with.” Compare Ransom v. FIA Card Services, 562 U.S.
___, No. 09-907, slip op. at 7-8 (January 11, 2011) with Ransom v. FIA Card Services, 562 U.S. ___, No. 09-907, slip
op. at 2 (January 11, 2011) (Scalia, J., dissenting).
86
United States v. Wilson, 503 U.S. 333, 336 (1992) (nonetheless attributing no significance to deletion of a reference
to the Attorney General; the reference “was simply lost in the shuffle” of a comprehensive statutory revision that had
various unrelated purposes); Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we
presume it intends its amendment to have real and substantial effect.”). There is an exception for minor, unexplained
changes in phraseology made during recodification—changes that courts generally assume are “not intended to alter the
statute’s scope.” Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 318 (1985).
87
Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994).
88
See, e.g., Moskal v. United States, 498 U.S. 103 (1990). Defendant in Pennsylvania sent altered documentation about
certain automobiles to Virginia and obtained valid Virginia auto titles incorporating false facts contained in the altered
documents. The new titles were then sent back to defendant in Pennsylvania. The federal forgery statute prohibited
receipt of “falsely made, forged, altered, or counterfeited securities.” Five Justices held that the Virginia titles were
“falsely made” even though Virginia authorities were unaware of the misrepresentations contained in them. Dissenting
Justice Scalia objected to the Court’s straining to avoid holding that “falsely made” is redundant: “The principle
[against mere surplusage] is sound, but its limitation (‘if possible’) should be observed. It should not be used to distort
ordinary meaning. Nor should it be applied to obvious instances of iteration to which lawyers, alas, are particularly
addicted.” Id. at 120.
89
Marx v. General Revenue Corp., 568 U.S. ___, No. 11-1175, slip op. at 14 (February 26, 2013).
90
POM Wonderful LLC v. Coca-Cola Co., 573 U.S. ___, No. 12-761, slip op. (June 12, 2014). See also Connecticut
Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (finding that, despite considerable overlap between two provisions,
each addressed matters that the other did not).

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Same Phrasing in Same or Related Statutes
“A term appearing in several places in a statutory text is generally read the same way each time it
appears.”91 This presumption is “at its most vigorous when a term is repeated within a given
sentence.”92 It also has been applied to the appearance of a term in inter-related programs.93
Additionally, the Court in at least one instance referred to a broader “established canon” that
similar language contained within the same section of a statute be accorded a consistent
meaning.94
The general presumption is not rigid, however, and “readily yields when there is such variation in
the connection in which the words are used as reasonably to warrant the conclusion that they were
employed in different parts of the act with different intent.”95 Context and statutory history can
override the presumption.

Different Phrasings in Same Statute
The other side of the coin is that “where Congress includes particular language in one section of a
statute but omits it in another ..., it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”96 The Court cited this maxim when Congress
had restricted direct access by Guantanamo detainees to the courts but did not expressly restrict
access in pending cases through petitions for writs of habeas corpus: “A familiar principle of
statutory construction ... is that a negative inference may be drawn from the exclusion of language
from one statutory provision that is included in other provisions of the same statute.”97 In an
91

Ratzlaf v. United States, 510 U.S. 135, 143 (1994). See also Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995); and
Wisconsin Dep’t of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214, 225 (1992).
92
Brown v. Gardner, 513 U.S. 115, 118 (1994); Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 329-30 (2000). Cf.
Robers v. United States, 572 U.S. ___, No. 12-9012, slip op. (May 5, 2014).
93
Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (“child support” as used in the Child Support program under the Social
Security Act points toward the same use of “child support” in the closely related AFDC program, and thus “child
support” as used in the AFDC program does not include OASDI payments under title II of the Social Security Act).
94
National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501(1998).
95
Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1933). See also Robinson v. Shell Oil Co., 519
U.S. 337, 342-43 (1997) (term “employees” means current employees only in some sections of Title VII of Civil Rights
Act, but in other sections includes former employees); United States v. Cleveland Indians Baseball Co., 532 U.S. 200
(2001) (different statutory contexts of worker eligibility for Social Security benefits and “administrability” of tax rules
justify different interpretations); General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 594-595 (2004) (word
“age” means “old age” when included in the term “age discrimination” in the Age Discrimination in Employment Act
even though it is used in its primary sense elsewhere in the act). For disagreement about the appropriateness of
applying this limitation, contrast the Court’s opinion in Gustafson v. Alloyd Co., 513 U.S. at 573, with the dissenting
opinion of Justice Thomas in the same case, id. at 590 (interpreting a definition that, by its terms, was applicable
“unless the context otherwise requires”).
96
Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
See also Bailey v. United States. 516 U.S. 137, 146 (1995) (distinction in one provision between “used” and “intended
to be used” creates implication that related provision’s reliance on “use” alone refers to actual and not intended use);
Merck v. Reynolds, 559 U.S. ___, No. 08-905 (April 27, 2010) (Scalia, J., concurring) (use of “discovery” alone in one
securities fraud statute of limitations provision and the use of “discovery, or after such discovery should have been
made” in another securities fraud statute of limitations provision implies that “discovery” in the first provision means
only “actual discovery” and does not include “constructive discovery”); and Bates v. United States, 522 U.S. 23, 29
(1997) (inclusion of “intent to defraud” language in one provision and exclusion in a parallel provision).
97
Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006).

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earlier case on the availability of habeas review by a convicted murderer, the Court referred to the
history of the provision that treated habeas relief and other access to the courts differently:
“[N]egative implications raised by disparate provisions are strongest when the portions of a
statute treated differently had already been joined together and were being considered
simultaneously when the language raising the implication was inserted.”98 This maxim has been
applied by the Court—or at least cited as a justification—in distinguishing among different
categories of veterans benefits99 and among different categories of drug offenses.100 A court can
only go so far with the maxim, of course; establishing that language does not mean one thing does
not necessarily establish what the language does mean.101

“Congress Knows How to Say ...”
Occasionally the Court contrasts a party’s interpretation of certain language with language that
expresses the same concept more clearly and directly. There are some instances—for example, a
failure to employ particular terms of art—in which this argument can be fairly persuasive. For
example, the Court reasoned that, although “Congress knew how to impose aiding and abetting
liability when it chose to do so,” it did not use the words “aid” and “abet” in the statute at issue,
and hence did not impose aiding and abetting liability.102 To say that Congress did not use the
most precise language, however, does not necessarily aid the court in determining what the less
precise language means in its statutory context.103 Some statutes may not be well drafted,104 but
98

Lindh v. Murphy, 521 U.S. 320, 330 (1997) (statute was explicit in making one section applicable to habeas cases
pending on date of enactment, but was silent as to parallel provision).
99
King v. St. Vincent’s Hospital, 502 U.S. 215, 220-21 (1991) (“Given the examples of affirmative limitations on
reemployment benefits conferred by neighboring provisions, we infer that the simplicity of subsection (d) was
deliberate, consistent with a plain meaning to provide its benefit without conditions on length of service.”).
100
Chapman v. United States, 500 U.S. 453, 459 (1991) (fact that, with respect to some drugs, Congress distinguished
between a “mixture or substance” containing the drug and a “pure” drug refutes the argument that Congress’s failure to
so distinguish with respect to LSD was inadvertent).
101
See Field v. Mans, 516 U.S. 59, 67 (1995) (“without more, the [‘negative pregnant’] inference might be a helpful
one,” but other interpretive guides prove more useful).
102
Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, 176-77 (1994). See also Franklin Nat’l Bank v. New
York, 347 U.S. 373, 378 (1954) (finding “no indication that Congress intended to make this phase of national banking
subject to local restrictions, as it has done by express language in several other instances”); Meghrig v. KFC Western,
Inc., 516 U.S. 479, 485 (1996) (“Congress ... demonstrated in CERCLA that it knew how to provide for the recovery of
cleanup costs, and ... the language used to define the remedies under RCRA does not provide that remedy.”); FCC v.
NextWave Personal Communications, Inc., 537 U.S. 293, 302 (2003) (when Congress has intended to create exceptions
to bankruptcy law requirements, “it has done so clearly and expressly”); Dole Food Co. v. Patrickson, 538 U.S. 468,
476 (2003) (Congress knows how to refer to an indirect owner of a corporation, as distinct from a direct owner of
shares in the “formal sense,” and did not do so in the Foreign Sovereign Immunities Act’s definition of foreign state
“instrumentality”); Whitfield v. United States, 543 U.S. 209, 216 (2005) (“Congress has included an express overt-act
requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a
requirement when it wishes to do so.”). Also Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. ___, No. 121036, slip op. (January 14, 2014) (when Class Action Fairness Act authorizes removal of a state case to federal court as
a “mass action” if the case was brought by 100 or more persons, only named plaintiffs may be counted; in the same
statute, Congress explicitly had included counting “unnamed parties in interest” toward meeting class action thresholds
and could have done so under the mass action provision if it so chose.).
103
See, e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX’s prohibition on sex discrimination
encompasses retaliation despite absence of an explicit prohibition on retaliation such as those contained in Title VII, the
ADA, and the Age Discrimination in Employment Act).
104
See, e.g., the provisions of the Plant Variety Protection Act at issue in Asgrow Seed Co. v. Winterboer, 513 U.S. 179
(1995). Justice Scalia in his opinion for the Court in Asgrow called 7 U.S.C. §2543 a “verbal maze,” and conceded that
(continued...)

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others represent conscious choices, born of political compromise, that may or may not signal that
a different result is intended or that Congress is leaving final interpretation to agencies, courts, or
future legislatures.105 It may be inappropriate question begging to assume, therefore, that “[i]f
Congress had intended such an irrational result, surely it would have expressed it in
straightforward English.”106

Statutory Silence
Nothing compels Congress to act comprehensively when it legislates on a subject. It is not safe to
assume that Congress intends to address all ancillary issues directly whenever it acts.
As one court has aptly put it, “[n]ot every silence is pregnant.” In some cases, Congress
intends silence to rule out a particular statutory application, while in others Congress’ silence
signifies merely an expectation that nothing more need be said in order to effectuate the
relevant legislative objective. In still other instances, silence may reflect the fact that
Congress has not considered an issue at all. An inference drawn from congressional silence
certainly cannot be credited when it is contrary to all other textual and contextual evidence of
congressional intent.107

Occasionally, the Court does regard silence as a significant indicator of meaning, especially when
Congress has consistently used particular language in similar laws.108 Nevertheless, the Court
generally assumes Congress will speak to major issues directly: “Congress ... does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not ...
hide elephants in mouseholes.”109 Thus, when the Court held that the FDA’s authority did not
include authority to regulate tobacco products as drugs, it stated: “Congress could not have

(...continued)
“it is quite impossible to make complete sense of the provision.” Id. at 185-86. In another case, the Court found
statutory language “incoherent” due to use of three different and conflicting standards identifying an evidentiary
burden. Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 627 (1993). The Court
resolved the issue by treating the “incoherence” as ambiguity, and by applying the one possible construction that did
not raise constitutional issues. Id. at 628-30.
105
See, e.g., Landgraf v. USI Film Products, 511 U.S. 244, 263 (1994) (“The history of the 1991 [Civil Rights] Act
conveys the impression that the legislators agreed to disagree about whether and to what extent the Act would apply to
preenactment conduct.”).
106
FMC Corp. v. Holliday, 498 U.S. 52, 66 (1990) (Justice Stevens, dissenting, objecting to Court’s interpretation of
convoluted preemption language in ERISA).
107
Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Illinois Dep’t of Public Aid v. Schweiker, 707 F.2d 273,
277 (7th Cir. 1983)).
108
Director, OWCP v. Newport News Shipbuilding Co., 514 U.S. 122 (1995) (agency in its governmental capacity is
not a “person adversely affected or aggrieved” for purposes of judicial review). See also United States v. Bestfoods,
524 U.S. 51, 62 (1998) (“Against this venerable common-law backdrop, the congressional silence is audible.”); Elkins
v. Moreno, 435 U.S. 647, 666 (1978) (absence of reference to an immigrant’s intent to remain citizen of foreign
country is “pregnant” when contrasted with other provisions of “comprehensive and complete” immigration code);
Meyer v. Holley, 537 U.S. 280 (2003) (ordinary rules of vicarious liability apply to tort actions under the Fair Housing
Act; statutory silence as to vicarious liability contrasts with explicit departures in other laws).
109
Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001). See also MCI Telecommunications Corp. v.
AT&T, 512 U.S. 218, 231 (1994) (conferral of authority to “modify” rates was not a cryptic conferral of authority to
make filing of rates voluntary); Director of Revenue of Mo. v. CoBank, ACB, 531 U.S. 316, 323 (2001) (“[I]t would be
surprising, indeed,” if Congress had effected a “radical” change in the law “sub silentio” via “technical and conforming
amendments.”).

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intended to delegate a decision of such economic and political significance to an agency in so
cryptic a fashion.”110
A variation on the statutory silence theme is the negative inference: expressio unius est exclusio
alterius (the inclusion of one is the exclusion of others). Thus, where Congress subjected specific
categories of ticket sales to taxation but failed to cover another category, either by specific or by
general language, the Court refused to extend the coverage. To do so, given the “particularization
and detail” with which Congress had set out the categories, would amount to “enlargement” of
the statute rather than “construction” of it.111 Relatedly, “[w]here Congress explicitly enumerates
certain exceptions to a general prohibition, additional exceptions are not to be implied, in the
absence of a contrary legislative intent.”112 The Court applied the principle, albeit without express
recognition, in holding that a statute requiring payment of an attendance fee to “a witness” applies
to an incarcerated state prisoner who testifies at a federal trial. Because Congress had expressly
excepted another category (detained aliens) from eligibility for these fees, and had expressly
excepted any “incarcerated” witness from eligibility for a different category of fees, “the
conclusion is virtually inescapable ... that the general language ‘witness in attendance’ ... includes
prisoners ....”113
But here again, context may render the principle inapplicable. A statutory listing may be
“exemplary, not exclusive,” the Court once concluded.114 In one case, a provision of the Fair Debt
Collection Act (FDCA) authorized the award of attorney’s fees and costs to defendants who were
sued in bad faith for the purpose of harassment.115 Did this provision negatively imply that costs
could not be awarded to prevailing defendants in cases not involving bad faith and harassment? A
majority of the Court found that costs could indeed be awarded in these cases. According to the
Court, the expressio unius cannon only applies when it is fair to assume that Congress considered
broader coverage but rejected it. Here, the general rules on awarding costs, the prevalence of
redundancies in costs provisions, and certain aspects of the statutory structure all indicated that
the FDCA was not meant to categorically bar the award of costs to any class of defendants
prevailing in FDCA actions.
110
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). Ordinarily the Court does not require
reference to specific applications of general authority, but in this instance (“hardly an ordinary case”) the Court
majority attached importance to the FDA’s longstanding disavowal of regulatory authority over tobacco, and to
subsequently enacted tobacco-specific legislation that stopped short of conferring authority to ban sale of the product.
111
Iselin v. United States, 270 U.S. 245, 250 (1926). See also Lamie v. United States Trustee, 540 U.S. 526, 537 (2004)
(courts should not add an “absent word” to a statute; “there is a basic difference between filling a gap left by Congress’
silence and rewriting rules that Congress has affirmatively and specifically enacted”). Obviously, the line between the
permissible filling in of statutory gaps and the impermissible adding of statutory content may be indistinct in some
instances, and statutory context, congressional purpose, and overriding presumptions may tip the scales. For example,
the Court made no mention of the “absent word” rule in holding that a reference to “any entity” actually meant “any
private entity” in the context of preemption. Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (preemption of
state laws that prohibit “any entity” from providing telecommunications service does not preempt a state law
prohibiting local governments from providing such service).
112
Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (citing Continental Casualty Co. v. United States, 314
U.S. 527, 533 (1942)).
113
Demarest v. Manspeaker, 498 U.S. 184, 188 (1991). Congress quickly acted to override this result and prohibit
payment of witness fees to prisoners, P.L. 102-417, 106 Stat. 2138 (1992), the House Judiciary Committee expressing
the belief that “Congress never intended” that prisoners be paid witness fees. H.Rept. 102-194, 102d Cong., 1st Sess. 2
(1991).
114
NationsBank v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (endorsing Comptroller of the Currency’s
interpretation).
115
Marx v. General Revenue Corp., 568 U.S. ___, No. 11-1175, slip op. (February 26, 2013).

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De Minimis Principle
“The venerable maxim de minimis non curat lex (‘the law cares not for trifles’) is part of the
established background of legal principles against which all enactments are adopted, and which
all enactments (absent contrary indication) are deemed to accept.... Whether a particular activity
is a de minimis deviation from a prescribed standard must ... be determined with reference to the
purpose of the standard.”116

“Substantive” Canons of Construction
In some circumstances, the Court subordinates the general, linguistic canons of statutory
construction, as well as other interpretive principles, to overarching presumptions that, unless
rebutted, favor particular substantive results. Some of the “weighty and constant values”
protected by these “substantive” canons of construction are derived from the Constitution, others
from notions of federalism, and yet others from interests in judicial administration and ordered
governance.117 Application of a substantive canon often, but not always,118 results in some form of
“clear statement” rule, requiring that Congress, if it wishes to achieve a particular result
inconsistent with the Court’s view of legal traditions, must state such an intent with unmistakable
clarity.119

Departure from Common Law or Established Interpretation
Congress is presumed to legislate with knowledge of existing common law. When it adopts a
statute, related judge-made law (common law) is presumed to remain in force and work in
conjunction with the new statute absent a clear indication otherwise. Thus, when Congress
established civil actions for harms “by reason of” violations of antitrust laws and the Racketeer
Influenced and Corrupt Organizations Act (RICO), the courts incorporated common law
principles of “proximate cause” to determine liability. Establishing that a harm would not have
occurred “but for” the violation is insufficient; as is the case under common law actions, a more

116
See Abbott Laboratories v. Portland Retail Druggists, 425 U.S. 1, 18 (1976) (occasional emergency dispensation of
drugs to walk-in patients is de minimis deviation from Robinson-Patman Act’s exemption for hospitals’ purchase of
supplies “for their own use”); Industrial Ass’n v. United States, 268 U.S. 64, 68 (1925) (3 or 4 “sporadic and doubtful
instances” of interference with interstate commerce in what was in essence an intrastate matter were insufficient to
establish a violation of the Sherman Act).
117
For an extensive listing of substantive canons, by type, used in Supreme Court decisions from 1986-2006, along
with accompanying case citations, see WILLIAM N. ESKRIDGE, JR., PHILLIP P. FRICKEY & ELIZABETH GARRETT, CASES &
MATERIALS ON LEGISLATION: STATUTES & THE CREATION OF PUBLIC Policy at Appendix B 29-41 (4th ed. 2007).
118
For example, in Astoria Federal Savings & Loan Assn. v. Solimino (501 U.S. 104 (1991)), the Court addressed
whether a federal cause of action under the Age Act was bound by unreviewed findings of a state administrative board,
as might be the case if the common law doctrine of collateral estoppel applied. In this instance, Justice Souter
characterized the maxim that judge-made law implicitly continues to apply as an analytical starting point only, one that
would give way as statutory context or purpose indicates. The opinion eschewed any formulaic application that would
make the maxim dispositive absent a “clear statement” in the statute to the contrary. 501 U.S. at 108-10.
119
Judge Wald described one such presumption as requiring that Congress “signal[ ] its intention in neon lights.”
Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L.
REV. 195, 208 (1983). See generally pp. 206-14 of the article. See also William N. Eskridge, Jr. and Philip P. Frickey,
Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992).

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direct and immediate connection between violation and harm must be shown.120 Similarly, when
Congress adopted the common law on abandonment of property as part of the Bankruptcy Code,
it was deemed to have adopted all the judge-made corollaries and exceptions that attended the
abandonment law: “The normal rule of statutory construction is that if Congress intends for
legislation to change the interpretation of a judicially created concept, it makes that intent
specific.”121 In another bankruptcy case the Court declared that “[w]e will not read the
Bankruptcy Code to erode past ... practice absent a clear indication that Congress intended such a
departure.”122 Further, the Court held that Congress, in adopting language stating that a patent is
presumed valid, concomitantly adopted the common law rule that the presumed validity of a
patent may be overcome only by clear and convincing evidence.123
Questions about whether common-law rights and causes of action continue come up in a variety
of contexts.124 In some instances, the presumption of continuation has been overcome by general
reference to a statute’s purpose, even absent a “clear statement.”125 In other instances, the Justices
have disagreed on whether particular language sufficiently evidences an intent to overcome the
presumption: Does language in the Federal Employers’ Liability Act making railroads liable for
employee injuries “resulting in whole or in part from [carrier] negligence” supersede (and relax)
common law rules limiting liability to injuries arising from a “proximate cause”? In one case, five
Justices held that it does, while four Justices held that it does not.126

Preempting State Law, Deferring to State Powers
Under the Supremacy Clause of the Constitution (Article VI, cl. 2), federal law supersedes
inconsistent state law.127 Whether a particular statute does so is a matter of congressional intent.
One substantive canon proceeds from “the assumption that the historic police powers of the States
were not to be superseded by [a federal law] unless that was the clear and manifest purpose of
120

See Holmes v. Securities Investor Protection Corporation, 503 U.S. 258 (1992).
Midlantic Nat’l Bank v. New Jersey Dep’t of Envt’l Protection, 474 U.S. 494, 501 (1986) (quoting Edmonds v.
Compagnie Generale Transatlantique, 443 U.S. 256, 266-67 (1979)).
122
Pennsylvania Pub. Welfare Dep’t v. Davenport, 495 U.S. 552, 563 (1990) (nonetheless finding that the statutory
language plainly evidenced an intent to depart from past practice).
123
Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. ___, No. 10-290, slip op. (June 9, 2011).
124
E.g., Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 ( 2009) (availability of punitive damages in maritime
cases under common law not superseded by Jones Act); Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007)
(common-law negligence principles continued to apply in action under the Federal Employers’ Liability Act); United
States v. Dixon, 548 U.S. 1 (2006) (common-law burden on defendant to prove affirmative defense of duress applied in
prosecution for firearms-related offenses); Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (continued
availability of certain state common law tort remedies after Federal Insecticide, Fungicide, and Rodenticide Act).
125
See Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104 (1991).
126
Compare CSX Transportation Inc. v. McBride, 564 U.S. ___, No. 10-235, slip op. (June 23, 2011) (Ginsburg, J., for
the Court) (also citing previous judicial interpretations and the purpose of the statute), with CSX Transportation Inc. v.
McBride, 564 U.S. ___, No. 10-235, slip op. (June 23, 2011) (Roberts, C.J., dissenting) (finding lack of requisite
congressional intent in the statutory language and opining that if the phrase “in whole or in part” was intended to affect
any common law rule, it was to allow actions in cases of contributory negligence, not to relax proximate cause
restrictions).
127
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”
121

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Congress.”128 Also, solicitude toward state police powers can lead the Court to look for a clear
indication of intent from Congress when a statute implicates traditional state authorities, even if
there is no conflict with state law.129
Many federal regulatory statutes contain an express statement preempting state law or disclaiming
intent to do so. Nevertheless, both preemption and savings statements have presented the Court
difficult interpretive questions of precisely what has been foreclosed or preserved.130 When a
statute is silent on preemption, the Court has asked three questions in determining whether state
law has been preempted implicitly: Is there a direct conflict between federal and state law—can
they be implemented simultaneously? Would implementation of state law “frustrate congressional
purpose”? Has federal law “occupied the field” of regulation? Answering these questions has very
much been a case-by-case exercise.
In deference to the states, the Court will not lightly infer that Congress has enacted legislation
that restricts how states may constitute their own governments. In ruling that state judges are not
“employees” for purposes of the Age Discrimination in Employment Act, the Court cited the lack
of a plain statement to limit state authority to determine the qualifications of important
128

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597,
605 (1991). See also Medtronic Inc. v. Lohr, 518 U.S. 470, 485 (1996) (“[B]ecause the States are independent
sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes
of action.”). Nevertheless, any presumption disfavoring preemption of state law may go only so far. In PLIVA, Inc. v.
Mensing, for example, four Justices characterized the Supremacy Clause phrase asserting federal pre-eminence “any
[state law] to the Contrary notwithstanding” as a non obstante provision that “suggests that federal law should be
understood to impliedly repeal conflicting state law” and indicates limits on the extent to which courts should seek to
reconcile federal and state law in preemption cases. 564 U.S. ___, No. 09-993, slip op. at 15-17 (June 23, 2011)
(Thomas, J., plurality opinion).
In contrast to the congressional intent required to support preemption of a state-based cause of action, Congress
displaces a potential cause of action under federal common law (i.e., a suit based on judicially declared law) simply by
addressing the question at issue in a statute. American Electric Power Co. v. Connecticut, 564 U.S. ___, No. 10-174,
slip op. (June 20, 2011) (federal common law suit to abate greenhouse gas emissions as a public nuisance held to have
been displaced by the Clean Air Act).
129
Bond v. United States, 572 U.S. ___, No. 12-158, slip op. (June 2, 2014) (no clear statement from Congress that
statute implementing Chemical Weapons Convention was meant to support federal prosecution of a purely local assault
crime committed with harmful, but not illegal, chemical compounds).
130
E.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (continued availability of certain state common law tort
remedies after Federal Insecticide, Fungicide, and Rodenticide Act); Rush Prudential HMO v. Moran, 536 U.S. 355
(2002) (5-4 decision finding that Illinois regulation fell within ERISA’s preservation of state insurance laws);
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (preemptive reach of Federal Cigarette Labeling and Advertising
Act). Compare Geier v. American Honda Motor Co. 529 U.S. 861 (2000) (despite the inclusion of savings clause
preserving liability under common law, the National Traffic and Motor Vehicle Safety Act nevertheless found to have
preempted a state common law tort action based on the failure of a car manufacturer to install front seat airbags: giving
car manufacturers some leeway in developing and introducing passive safety restraint devices held to be a key
congressional objective under the act, one that would be frustrated should a tort action be allowed to proceed) with
Williamson v. Mazda Motor of America, Inc., 562 U.S. ___, No. 08-1314, slip op. (2011) (applying same statute as
Geier, no conflict preemption found of common law suit based on rear seat belt type, because giving manufacturers a
choice on the type of rear seat belt to install was not a “significant objective” of the statute).
A statement asserting preemption or disclaiming intent to preempt must be clear not only as to preemptive intent, but
also as to scope. In International Paper Co. v. Ouellette, 479 U.S. 481 (1987), for example, the Court ruled that the
Clean Water Act foreclosed the application of state law to an out-of-state source of pollution despite a savings clause in
the Act preserving an injured party’s right to seek relief under any statute or common law. “Because we do not believe
Congress intended to undermine this carefully drawn statute [leaving a source state responsible for control of pointsource discharges within its boundaries] through a general savings clause, we conclude that the CWA precludes a court
from applying the law of an affected state against an out-of-state source.” Id. at 484.

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government officials—an authority protected by the Tenth Amendment and by the Guarantee
Clause.131 “This plain statement rule is nothing more than an acknowledgment that the States
retain substantial sovereign powers under our constitutional scheme, powers with which Congress
does not readily interfere.”132

Abrogation of States’ Eleventh Amendment Immunity
Also protective of state sovereignty is the rule that, in order to abrogate the states’ Eleventh
Amendment immunity from suit,133 “Congress must make its intention ‘unmistakably clear in the
language of the statute.’”134 Even then, Congress has limited authority to abrogate states’
Eleventh Amendment immunity. The Court held in Seminole Tribe of Florida v. Florida, that
Congress’s general legislative powers under Article I may not be used to “circumvent the
constitutional limitations placed upon federal jurisdiction [by the Eleventh Amendment].”135 This
leaves Section 5 of the Fourteenth Amendment (specific power to enforce the provisions of the
Amendment) as the principal source of power to abrogate state immunity. Despite these
restrictions, Congress has been found to have authorized suits against states in appropriate
circumstances.136

Nationwide Application of Federal Law
Congress, if it chooses, can incorporate state law into federal law.137 Federal law usually applies
uniformly nationwide,138 however, and there is a presumption that, “when Congress enacts a
statute ... it does not intend to make its application dependent on state law.”139
131

Gregory v. Ashcroft, 501 U.S. 452 (1991).
Id. at 461. See also Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (indicating that the plain statement
rule is also appropriate for laws “interposing federal authority between a State and its municipal subdivisions”).
133
The Eleventh Amendment states that federal courts do not have jurisdiction over suits against a state by citizens of
another state or foreign country. By the late nineteenth century, the amendment was understood to mean that a state
generally could not be sued without its consent. The primary exception is that Congress may subject a state to suit
through an exercise of its legislative authority under section 5 of the Fourteenth Amendment. Section 5 empowers
Congress to pass laws effectuating civil rights promoted by the Amendment.
134
Hoffman v. Connecticut Income Maint. Dep’t, 492 U.S. 96, 101 (1989) (quoting Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 242 (1985)).
135
517 U.S. 44, 73 (1996).
136
Nevada Dept. of Human Resources v. Hibbs 538 U.S. 721 (2003) (allowing private right of action and money
damages against a state for violating the family leave provisions of the Family and Medical Leave Act (FMLA); family
leave provisions held to be permissible exercises of Section 5 because they targeted gender discrimination). Compare
Coleman v. Court of Appeals of Maryland, 566 U.S. ___, No. 10-1016, slip op. (March 20, 2012) (disallowing a
damages suit against a state for violating the personal sick leave provisions of the FMLA; personal sick leave
provisions held to be beyond Section 5 authority, because the personal sick leave provisions are not sufficiently tied to
curbing discrimination).
137
See, e.g., the Assimilative Crimes Statute, 18 U.S.C. §13, governing crimes within the special maritime and
territorial jurisdiction of the United States.
138
Jerome v. United States, 318 U.S. 101, 104 (1943). Arguably, the Jerome Court actually overstated the case, citing
United States v. Pelzer, 312 U.S. 399, 402 (1941), for the proposition that “the application of federal legislation is
nationwide.” Pelzer was far less sweeping, holding only that “in light of their general purpose to establish a nationwide
scheme of taxation uniform in its application,” provisions of the revenue laws “should not be taken as subject to state
control or limitation unless the language or necessary implication of the section involved makes its application
dependent on state law.” 312 U.S. at 402-03.
132

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Sovereign Immunity
“[T]he Government’s consent to be sued ‘must be construed strictly in favor of the sovereign.’”140
A waiver of sovereign immunity must be effected by unequivocal expression in statutory text;
legislative history “has no bearing” on the issue.141 As a consequence, “statutes which in general
terms divest pre-existing rights or privileges will not be applied to the sovereign without express
words to that effect.”142
Separate from whether Congress has clearly and unequivocally waived immunity is the
availability of money damages when immunity has been waived. When the amenability of the
federal government to damages is at issue, the Court at times has read a statute under a “fair
interpre

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A97-589. Public record. Not legal advice.