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. Read the rest of this entry »