FREQUENTLY ASKED QUESTIONS ABOUT TEXTUAL ARGUMENTS
| Q. | Do I need to memorize all fifty-seven (or more) canons for resolving textual ambiguities? |
| A. | No, although familiarizing yourself with them makes sense, especially if your practice regularly entails interpreting statutes or contracts. Many briefs and motions simply use the canons without naming them; thus, cultivate instincts for the sorts of interpretive clues that will help you. Many of the text-based canons are built on common sense. For instance, if a statute says that “dogs and cats are banned from all national parks” and then the legislature enacted another statute in the same section stating that “cats are banned from all national monuments,” it’s reasonable to think that a judge would infer that the omission of “dogs” from the second statute was deliberate, reflecting the legislature’s intent to permit dogs into national monuments |
But knowing the names of canons is helpful, both because some doctrinal canons are not intuitive and because knowing the names makes it easier to find cases that relied on the canon that you are invoking.
| Q. | This chapter lists a variety of techniques for making textual arguments. In what order do I present these arguments? |
| A. | In federal courts, litigants most frequently begin with the text’s plain meaning and then move to various canons for interpreting ambiguous statutes or clauses. Only then do they refer to legislative history, which is discussed in the next chapter. Some state courts (and some federal judges) reprioritize these elements and add others, and lawyers, of course, adapt accordingly. But starting with plain meaning, moving to textual clues and other interpretive canons, and then invoking legislative history (and policy) is a standard and fairly safe sequence. |
| Q. | My argument is based on a long statute. Do I need to include the entire section (or the entire act) in my motion or brief? |
| A. | No. Reprint short statutes or the relevant part of a longer statute in your motion or brief in the Applicable Statutes section. But consider including the full text of lengthy statutes in an appendix. Ensure that, in some manner, you give judges access to the relevant statute. |
| Q. | I noticed that Example 7.1 cited statutes without adding a space between “§” and the section number; for instance, it referred to “§214” rather than “§ 214”. Was that a Bluebooking error? |
| A. | Textual arguments tend to cite many sources. The Supreme Court rules require merits briefs to contain no more than 15,000 words, and the brief reprinted in Example 7.1 uses the “§” exactly 281 times. By removing the space between the “§” and the following number, the lawyers gained almost two extra paragraphs of substantive argument. Just don’t think that judges are unaware of the lawyers’ motivations. |