What important skill is most generally lacking among law-school graduates?
Almost certainly this: the ability to develop, hone, and deliver arguments about the interpretation of contracts and statutes. Lawyers often spend months working on text-based cases without realizing that their best argument is the ordinary-meaning canon, the negative-implication canon, the last-antecedent canon, the surplusage canon, or the associated-words canon. Many have never even heard of these canons of construction, though they’re applied in thousands of American cases every year.
Although law schools are largely to blame for this curricular fault, many—such as Harvard—are beginning to reform. But most lawyers who graduated from law school after about 1960 must learn the techniques on their own.
What if your judge isn’t a textualist? Not to worry: all judges are textualists first (“We begin with the words . . .” is a mantra in judicial opinions), even if they then move on to consider other matters, such as their own policy preferences. They all start with the text. Legislative history comes up later if at all.
What about the canons listed above? Here are their meanings:
1. Ordinary-meaning canon: Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.
2. Negative-implication canon. The expression of one thing implies the exclusion of others.
3. Last-antecedent canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
4. Surplusage canon. If possible, every word and every provision is to be given effect. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
5. Associated-words canon. Associated words bear on one another’s meaning.
If you’d like to know more, Bryan Garner will be teaching “Statutory and Contractual Interpretation” on a nationwide LawProse tour this summer. (Dates will soon be posted on our website.) He’ll be teaching from the book he coauthored with Justice Antonin Scalia: Reading Law: The Interpretation of Legal Texts (2012). The book has already been cited as authority in more than 225 state and federal decisions.
Controversial? Nah—not when it comes to statutes and contracts. Reading Law cites dozens of Supreme Court justices with approval, with timeless examples from Chief Justice John Marshall, Justice Joseph Story, Justice Robert H. Jackson, and Justice Felix Frankfurter. There is praise for Justice John Paul Stevens and Justice Ruth Bader Ginsburg. But most of the 650+ cases are drawn from state supreme courts.
If you want to know how to unlock straightforward but sophisticated arguments about legal texts, the keys aren’t hard to find.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).