Statutory interpretation and
administrative law
Professor Neomi Rao
Attorney General Education Program
Law and Economics Center
September 11, 2014
Methods of interpretation
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Intentionalism
Purposivism
Pragmatism
Dynamic statutory interpretation
Textualism
Canons of construction
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Focus on linguistic canons
Background rule for understanding language
Important for text-based approaches
May sometimes conflict
Justifications for linguistic canons?
Commonly used canons
• Noscitur a sociis
– Words are known by their associates
– Limited and qualified by special words
• Expressio unius est exclusio alterius
– Expression of one thing indicates exclusion of the
other
– Legislature rejected similar things
• Assumptions behind canons?
Structural canons
• General idea: read the statute as a whole,
provides context for specific provisions
• Whole act rule
• Rule to avoid redundancy
• Consistent usage and meaningful variation
• Rule against interpreting a provision in
derogation of another
Babbitt v. Sweet Home (1995)
Endangered Species Act, Section 9(a)(1)
“…[W]ith respect to any endangered species of fish
or wildlife …it is unlawful for any person subject to
the jurisdiction of the United States to—
take any such species within the United States or
the territorial sea of the United States”
“The term ‘take’ means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct.”
Interior department regulation
• Defines “harm” in the definition of “take”
• Regulation says “harm” includes significant
habitat modification that kills or injures
wildlife
• Is the regulation within the statutory authority
of the agency?
FDA v. Brown & Williamson
• FDA has authority to regulate “drugs” and
“devices”
• “drug” is defined to include
– “articles … intended to affect the structure or any
function of the body”
• “device” is defined to include
– any instrument or implement “intended to affect
the structure or any function of the body of man
or other animals”
FDA regulation
• Asserts jurisdiction to regulate tobacco
products
• Nicotine is a “drug” and cigarettes are a
“device” that deliver nicotine to the body
• Reverses longstanding FDA position
• Does the FDA have jurisdiction to regulate
tobacco products?
Context for interpretation
• Plain meaning of statute
• Meaning at time statute enacted
– 1938: no intent to include tobacco
– Limited knowledge of harmful effects
• Political context
– 6 separate statutes regulating tobacco since 1965
– Powerful special interest group