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Evan Zoldan: Canon Spotting
Michael Ramsey

Evan C. Zoldan (University of Toledo College of Law) has posted Canon Spotting (Houston Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

The canons of statutory interpretation have never been more important to theories of interpretation or more central to the interpretive methodologies employed by courts. Nevertheless, there is no accepted way to determine whether an interpretive method is a canon of interpretation. Without a way to identify canons, we cannot evaluate whether the countless cases that turn on the application of canons are correct. And without a way to identify canons, normative debates about the canons remain incomplete and muddled.

This Article proposes and defends three criteria for spotting canons—that is—for determining whether an interpretive method is a canon of interpretation. An interpretive method is canon only if 1) it actually is used by legal interpreters, 2) using it affects interpretive outcomes, and 3) its proponents claim that it is theoretically justified. Using these three criteria to distinguish between canons of interpretation and noncanonical interpretive methods will allow scholars and courts to distinguish normative from descriptive arguments about the canons, allowing for clearer and more precise debates about both.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended" and adds:

This is another topic where the interpretation-construction distinction is essential to conceptual clarity.  Interpretation discovers meaning (communicative content).  Construction determines legal effect.  The so-called "linguistic canons" are canons of statutory interpretation--they are rules of thumb that identify recurring patterns of inference from text and context to communicative content.  The so-called "substantive canons" are legal norms that determine the legal effect of a statute.  Conflating the distinction results in conceptual confusion.

Agreed, but I think this raises serious doubt as to the legitimacy of (at least some of) the so-called substantive canons.  Unless the text is wholly ambiguous as to a point in issue, what is the justification for a court using a substantive canon (that is, a canon not premised on ordinary use of language) to reach a result different from the statute's actual (if perhaps somewhat obscured) meaning?