Statutory Construction Pet Peeve No. 1: Remedial Statutes Should Be Construed “Liberally.”

Lawyers and judges are interpreters of texts: cases, statutes, constitutions, etc.  And part of being a lawyer or a judge is knowing the canons of construction to apply to the text at issue to assist in ascertaining its meaning.

Two canons of construction are on my mind these days.  One says that “remedial statutes should be construed liberally,” and the other says “penal statutes should be construed strictly.”  How many times have we invoked one of these canons in a brief and then said something to the following effect during oral argument: “Well, judge, the statute is ambiguous, its remedial, so it should be interpreted liberally, and therefore I win!”  After reading a few decisions from the Seventh Circuit, however, I’m trying very hard to avoid relying on these  canons.

Judges Posner and Easterbrook have persuasively explained in a series of cases that maxims of statutory construction suggesting that certain types of statutes should be interpreted “liberally” and other types “strictly” are among “the least persuasive canons” and are “useless in deciding concrete cases.”  See Stomper v. Amalgamated Transit Union, Local 241, 27 F.3d 316, 320 (7th Cir. 1994); Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir. 1994); Contract Courier Services, Inc. v. Research and Special Program Administration, United States Dep’t of Transp., 924 F.2d 112 (7th Cir. 1991).  As Judge Easterbook wrote in the Stomper case:

The maxim that remedial statutes should be construed liberally] is useless in deciding concrete cases.  Every statute is remedial in the sense that it alters the law or favors one group over another.  . . .   But after we determine that a law favors some group, the question becomes: How much does it favor them?  Knowing that a law is remedial does not tell a court how far to go.  Every statute has a stopping point, beyond which, Congress concluded, the costs of doing more are excessive—or beyond which the interest groups opposed to the law were able to block further progress.  A court must determine not only the direction in which a law points but also how far to go in that direction

Similarly, he wrote the following in Contract Courier Services, Inc.:

Against this the Department contends that the law is a remedial statute, to be construed liberally. This is a useless maxim—useless not only because it invites the equal and opposite riposte that penal statutes are to be strictly construed but also because it does not answer the question “how far?”. Statutes do more than point in a direction, such as “more safety”. They achieve a particular amount of that objective, at a particular cost in other interests. An agency cannot treat a statute as authorizing an indefinite march in a single direction. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.

So, the next time you think about invoking one of these canons of statutory construction, think again–especially if you are in the Seventh Circuit.  Remember that the issue is not just which direction a statute points, but how far it goes in that direction.



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