Ethan Leib on Canons of Construction in Contracts Cases

I find canons of construction fun, and so I was very interested when I saw that Ethan Leib (left) has published a study of their use in contracts interpretation in New York and California.  You can read his  The Textual Canons in Contracts Cases: A Preliminary Study here in the Wisconsin Law Review.  The article is especially timely given the vogue for textualism and SCOTUS's current inclination to use the canons and other textualist devices, rather than legislative intent, to decide statutory cases.  Professor Leib notes that the scholarly consensus was, until recently, that the canons are helpful bur rarely outcome-determinative.  What does the contracts caselaw have to say about that?

Spoiler alert: Here are Professor Leib's general conclusions based on his preliminary investigation of the use of three of the canons two jurisdictions:

• (1) Jurisdictions seem to favor ejusdem generis over expressio unius in contract cases and prefer both of those canons to noscitur a sociis (a canon ranking that does not recur in non-contract cases);
• (2) Jurisdictions continue to debate whether the canons should be used principally to resolve ambiguities or whether they are relevant before a legal finding of ambiguity;
• (3) Across jurisdictions, there seems to be an increased incidence of courts discussing textual canons in contract cases in recent decades; and
• (4) It is rare that textual canons do their work standing alone; rather, contract cases that draw upon the textual canons routinely invoke other linguistic and substantive can

The choice of New York and California is interesting.  New York courts tend towards formalism in contracts litigation, while California courts tend toward contextualism.  Both states tend towards political liberalism, so it is especially interesting to see whether their jurisprudential differences result in an different deployment of the canons.  

Beyond its general conclusions, the article provides insights along the way, such as this measured judgment on the relation of linguistic and substantive canons:

These findings suggest that linguistic canons in contract cases often function in conjunction with substantive canons that are doing some of the work of nudging a textual meaning in one direction or another. Since context in combination with common sense is often going to help a court determine whether a linguistic canon ought to determine the ultimate legal meaning of a contract, it is not surprising that courts will want additional context to help them decide if a textual canon is applicable (especially since the weight of authority in New York is that a court need not find ambiguity before considering a canon-based reading of a contract). That is some modest evidence, perhaps, against the idea that New York courts are drawing upon the textual canons to avoid more comprehensively contextual or purposive readings of contracts. Substantive canons, it seems, work in the shadows, nudging textual canons even in this mostly formalist jurisdiction.

Professor Leib also provides some statistics suggesting (given the limits of the dataset, he can do no more) that reliance on linguistic canons is modestly rising in recent decades.  That pattern seems more pronounced with respect to reliance on canons more generally.  Contracts cases account for a small fraction of the total number of cases in which courts rely on the canons. 

Both New York and California recognize the three canons that Professor Leib has researched: expressio unius, ejusdem generis, and noscitur a sociis. The canons are most likely to come up in cases involving insurance policies, exculpatory clauses, releases, and force majeure clauses.  Professor Leib has interesting thoughts about the use of the canons in contractual as opposed to statutory construction.  The goal in construing contracts is to arrive at the intent of the parties, and Professor Leib thinks ejusdem generis is more helpful in that enterprise than expressio unius.  The latter is more helpful in the statutory context, where the focus is more on how the text will be understood by third parties.

It's a very stimulating read, and Professor Leib hints that more studies might be coming.  In my very unscientific survey of the caselaw, I have noticed that citations to Scalia and Garner's book (right) seem to be increasing in frequency, almost like a shrine before which one pauses on the way to a legal conclusion.  I expect that, as that book settles into its space on the bookshelf nearest the judge's desk in chambers, one will see the frequency of use of the canons continue to rise.