Statutes, Regulations, Ordinances, Contracts, and the Like
Know the rules of textual interpretation
Paramount rule: Before coming to any conclusion about the meaning of a text, read the entire document, nor just the particular provision at issue. The court will be seeking to give an ambiguous word or phrase meaning in the context of the document in which it appears. Often a later provision will reveal that the earlier provision must bear a particular meaning.
Here are the frequently expressed rules of interpretation:
• Words are presumed to bear their ordinary meetings.
• Without some contrary indication, a word or phrase is presumed to have the same meaning throughout a document.
• The provisions of a document should be interpreted in a way that renders them harmonious, not contradictory.
• If possible, no interpretation should be adopted that renders the provision in question—or any other provision — superfluous, unlawful, or invalid.
• If possible, every word should be given effect; no word should be read as surplusage.
• Legislative provisions should be interpreted in a way that avoids placing their constitutionality in doubt.
• A federal statue should not be read to eliminate state sovereign immunity or to preempt state law in an area of traditional state action unless that disposition is clearly expressed.
• Legislative provisions defining crimes and punishments will, in case of ambiguity, be given that interpretation favoring the accused (rule of lenity).
You must also take into account the famous canons of construction. In a particular case, various canons may point in different directions. This does not prove that they are useless—only that all valid clues don’t necessarily point in the same direction. It will be your job to persuade the court that most indications— from the canons and the principles of statutory construction— favor your client’s interpretation. The most frequently used canons are the following:
Inclusio unius est exclusio alterius. “The inclusion of one implies the exclusion of others.” A sign that reads “open to persons 21 and over” implies that the place is not open to persons under 21.
Noscitur a sociis. “A word is known by the words with which it is associated.” In the phrase “staples, rivets, nails, pins, and stakes,” the word “nails” obviously does not refer to fingernails.
Ejusdem generis. “Of the same kind.” A general residual category following a list of other items refers to items of the same sort. In the phrase “staples, rivets, nails, pins, stakes, and other items,” the “other items” don’t include balloons, but only other types of fasteners.
Ut magis valeat quam pereat. “So that it may survive rather than perish.” An ambiguous provision should be interpreted in a way that makes it valid rather than invalid.