Negative-Implications Canon
Negative-Implications Canon
The Following Passage is taken from Reading Law
A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 117-120 (2012).
10. Negative-Implication Canon
The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius). Expressio unius, also known as inclusio unius, is a Latin name for the communicative device known as negative implication. In English, it is known as the negative-implication canon. We encounter the device—and recognize it—frequently in our daily lives. When a car dealer promises a low financing rate to “purchasers with good credit,” it is entirely clear that the rate is not available to purchasers with spotty credit.
Virtually all the authorities who discuss the negative-implication canon emphasize that it must be applied with great caution, since its application depends so much on context. Indeed, one commentator suggests that it is not a proper canon at all but merely a description of the result gleaned from context. That goes too far. Context establishes the conditions for applying the canon, but where those conditions exist, the principle that specification of the one implies exclusion of the other validly describes how people express themselves and understand verbal expression. The doctrine properly applies only when the unius (or technically, unum, the thing specified) can reasonably be thought to be an expression of all that shares in the grant or prohibition involved. Common sense often suggests when this is or is not so. The sign outside a restaurant “No dogs allowed” cannot be thought to mean that no other creatures are excluded—as if pet monkeys, potbellied pigs, and baby elephants might be quite welcome. Dogs are specifically addressed because they are the animals that customers are most likely to bring in; nothing is implied about other animals. On the other hand, the sign outside a veterinary clinic saying “Open for treatment of dogs, cats, horses, and all other farm and domestic animals” does suggest (by its detail) that the circus lion with a health problem is out of luck. (Notice how ejusdem generis [§ 32] also comes into play with this example.) The more specific the enumeration, the greater the force of the canon:
[I]f Parliament in legislating speaks only of specific things and specific situations, it is a legitimate inference that the particulars exhaust the legislative will. The particular which is omitted from the particulars mentioned is the casus omissus, which the judge cannot supply because that would amount to legislation. Even when an all-inclusive sense seems apparent, one must still identify the scope of the inclusiveness (thereby limiting implied exclusion). Consider the sign at the entrance to a beachfront restaurant: “No shoes, no shirt, no service.” By listing some things that will cause a denial of service, the sign implies that other things will not. One can be confident about not being excluded on grounds of not wearing socks, for example, or of not wearing a jacket and tie. But what about coming in without pants? That is not included in the negative implication because the specified deficiencies in attire noted by the sign are obviously those that are common at the beach. Others common at the beach (no socks, no jacket, no tie) will implicitly not result in denial of service; but there is no reasonable implication regarding wardrobe absences not common at the beach. They go beyond the category to which the negative implication pertains.
This interpretive canon should not be confused with other principles of law that may produce identical results. One commentator ascribes to the canon the Supreme Court’s doctrine that private rights of action are not to be “implied” in federal statutes that do not expressly create them—and goes on to condemn both the canon and the doctrine. But while some cases applying the presumption against implied right of action (§ 51) mention the fact that the statute in question contains an express private right of action separate from the implied one asserted, the provision of an express right is not considered the basis for or a condition of the doctrine. Indeed, the presumption against implied right of action has been invoked in several cases in which there was no basis for applying the negative-implication canon. And perhaps the most consequential “implying” of a private right of action—one for violating § 10(b) of the Securities Exchange Act—occurred with respect to a statute that di create express private rights of action for other violations, so that the negative-implication canon would have precluded the implied right of action. But the United States Supreme Court’s rejection of implied rights of action is based not on a negative implication from an express private right of action, but instead on the principle that federal courts do not possess the lawmaking power of common-la courts. If Congress does not create a private right of action for violating one of its laws, the courts have no power to create one.
Now for some examples.
In one case, the state constitution declared that the judges of superior courts must be elected by both branches of the legislature. Then, later, a legislative act authorized the governor to appoint a temporary superior-court judge. The court applied the negative-implication canon to the constitutional language: “If one having authority prescribe[s] the mode in which a particular act [the naming of judges] is to be done, can the agent [the legislature] who executes it substitute any other? Does not the act of prescribing the mode, necessarily imply a prohibition to all other modes?” Hence the statute was held unconstitutional.
A second case illustrates what can happen when a court seems not even to recognize that the doctrine applies. A Mississippi statute provided that assistant district attorneys “may be removed at the discretion of the duly elected and acting district attorney.” Although district attorney was an elected position, some district attorneys were appointed by the governor between elections. And so the question arose whether a gubernatorial appointee had the power to remove assistant district attorneys. Did he have that power even though he had not been “duly elected”? The negative-implication canon could suggest not. Yet the Mississippi Supreme Court, without even mentioning much less considering the canon, held that “appointed” district attorneys who had not been “duly elected” were empowered to fire assistant district attorneys. It likewise did not mention or consider another canon that had obvious application: the surplusage canon (§ 26). Its interpretation deprived the words duly elected and of all effect.
A third case exemplifies a correct result, even though the court did not specifically cite the doctrine. A New Hampshire statute immunized municipalities from “damages arising from insufficiencies or hazards on public highways, bridges, or sidewalks . . . when such hazards are caused solely by snow, ice, or other inclement weather.” A person who suffered damages from a fall on ice in public parking lot sued the city of Laconia. The city claimed a statutory immunity, arguing that (1) the parking lots are essential components of the highway system, (2) the purpose of the statute was to protect cities from lawsuits resulting from weather conditions on public property, and (3) the legislature could not be expected to enumerate in the statute every single type of public property. The plaintiff argued that a parking lot is not a highway, not a bridge, and not a sidewalk—and that the immunity therefore did not apply. The legislature could easily have written “any public property, including highways, bridges, and sidewalks,” but it did not. The New Hampshire Supreme Court correctly held that because the law specified three types of public property but omitted all others, the immunity did not bar the lawsuit.
As that New Hampshire case illustrates, the negative-implication canon is so intuitive that courts often apply it correctly without calling it by name. Consider United States v. Giordano, decided by the Supreme Court of the United States in 1974. A statute established procedures for obtaining court orders authorizing the interception of wire and oral communications. It said that the “Attorney General . . . or any Assistant Attorney General . . . specially designated by the Attorney General” could authorize application for such orders. In Giordano’s case, it was the Attorney General’s executive assistant who applied for the court-authorized wiretap. Hence Giordano argued that the conversations to be used as evidence had been “unlawfully intercepted” and should be suppressed. A unanimous Court agreed with him: The statute named two types of high-ranking officials—and all others were excluded.