Example 7.2

Takeaway point 7.2: Familiarize yourself with and use interpretive canons but don’t forget to use common sense.

The last example showed how lawyers use a term’s ordinary meaning to construe a statute.

There are dozens of canons — 57 according to the book Reading Law by Justice Scalia and Bryan Garner, and even more (almost 200!) according to the 2012 supplement to Legislation by Professors William Eskridge, Elizabeth Garrett, and James Brudney. Familiarize yourself with the canons, but also trust your instincts: if some piece of information clarifies the meaning of a disputed term, mention that information (even if you do not know the name of the applicable canon). Think of these canons as clues about a disputed term’s meaning.

We look below at how lawyers use some of these clues. The case involves an employee who complained orally when his company violated the Fair Labor Standards Act of 1938 (FLSA) by underpaying him. Later, the company fired the employee, leading him to file an antiretaliation suit. He based his suit on a separate provision of the FLSA (29 U.S.C. § 215(a)(3)) that prevents any employer from firing employees because they “filed any complaint” about FLSA violations. The district court, however, granted summary judgment for the employer, holding that the antiretaliation provision applies only when an employee complains in writing — not orally. After losing again on appeal, the fired worker took his case to the Supreme Court; if “file” included oral complaints, he could revive his lawsuit and, potentially, reclaim his job.

Source: Terminated employee’s brief in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011). (Some footnotes omitted.)

Notice that the three provisions are less probative than advertised; each merely shows that something that was written down was being filed — not that something can be filed orally.

The brief does not specify which canons it is relying on. That’s fine. What matters is that you find good clues of a statute’s meaning, whether or not you identify which canon makes that clue probatitive.

These citations are strong, and the lawyers probably wrestled with the choice of whether to move them — or the strongest of them — to the text (rather than placing them all in a footnote). Replicate this dogged, creative research for your own clients.

This point is a sophisticated attempt to make a fact-based and policy argument look like a canonical argument (about what Congress is presumed to know about Census data). And it worked. The seven-Justice majority relied on this point, demonstrating that good advocacy sometimes depends less on rigid canons or doctrines than on common sense and policy.