There is much that distinguishes the U.S. Court of Appeals for the Seventh Circuit from its sister circuits. A substantial number of the cases filed there every year, for example, get oral argument and result in a published opinion. Juxtapose that practice against the custom in most circuits of deciding the great majority of cases on the briefs and in unpublished opinions. The Seventh Circuit is, quite simply, a court that likes to hear from and engage with its bar.
Eric G. Pearson, Marquette 2007, practices at Foley & Lardner LLP and co-edits the firm’s appellate blog, wiappellatelaw.com. He was the arrangements chair for the Seventh Circuit’s 64th annual meeting in May.
Perhaps at no time is this last fact more evident than every May, when the court holds the three-day judicial conference for all the federal courts in Wisconsin, Indiana, and Illinois in conjunction with the annual meeting of the court’s own bar association. These joint meetings provide the federal bench and bar a unique opportunity to exchange notes and even to provide feedback on the work of the courts and the lawyers. The latest of these, the 64th annual meeting, took place in Milwaukee on May 3-5, 2015.
What lessons did the judges of the Seventh Circuit impart to lawyers this year? There were many, but here is one: Ditch the canons of construction when interpreting statutes. You won’t run the risk of being less persuasive, and, in fact, the opposite might be true.
According to the results of a soon-to-be-released survey of federal appellate judges that Judge Richard Posner of the Seventh Circuit and Prof. Abbe Gluck of Yale Law School presented at the conference, most judges think that the canons are not much more than window-dressing. Some (Judge Posner included) appear downright hostile to them.
The well-documented problem with canons is that it’s often possible to find one to support any position.
Many of us began to be familiar with the canons (and their shortcomings) in the first year of law school. They tell us, for example, that, when faced with language in a statute that is ambiguous, we should choose the interpretation that favors the criminal defendant (the “rule of lenity”) or should resolve any doubt in the text of a statute relating to a Native American tribe in favor of the Indian. These are examples of canons effecting policy norms; others are more linguistic. Expressio unius est exclusio alterius (to include one thing implies the exclusion of the other) or in pari materia (to construe two statutes together when they address the same subject matter) are examples of the linguistic type.
The well-documented problem with canons is that it’s often possible to find one to support any position. And frequently they conflict, so that their use seems opportunistic.
Judge Posner and Prof. Gluck appear to have unearthed empirical evidence for what most of us have known for some time and that echoes much of what Karl Llewellyn said 65 years ago in his article in the Vanderbilt Law Review on the subject.
So the next time you write a brief or argue before a court, resist the urge to pin your argument to one of these pieces of fluff. Or, at least, recognize the shortcomings of doing so. Better yet, try first to find the rationale that appeals to unassailable common sense. Your client’s case just might be better for it.
