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Category: Statutory interpretation
“We must give effect to the specific over the general”
If you’re a litigator, you’ve probably invoked the specific-controls-the-general canon at one time or another. Whether you’ve prevailed with that argument is another question; it …
In statutory construction, be careful assuming the greater includes the lesser
The FDA has the undisputed power to ban a medical device entirely; but if it approves the device, it may not ban certain uses. That …
Katsas v. Randolph on jurisdictional order of operations
Not long ago, two D.C. Circuit decisions reminded us not to lean too hard on jurisdictional truisms (e.g., “jurisdiction can’t be waived”), which, though seemingly …
Don’t lean too hard on jurisdictional truisms
Two recent decisions of the D.C. Circuit provide reminders that even jurisdictional truisms are not absolute. Truism #1: If Congress says something is jurisdictional, it’s …
The limits of the “Congress knows how to say” canon
In cases involving statutory construction, someone often will say, “if Congress had wanted to say X it would have been easy enough to say X.” …
D.C. Circuit throws shade on legislative history and Chevron
Are you a litigator looking for a federal case that (a) rejects legislative history, or (b) frowns on applying Chevron deference in the face of …
Major questions v. elephants in mouseholes
Do you know the difference between the major-questions doctrine and the no-elephants-in-mouseholes principle? If you ever find yourself litigating against federal agencies, it’s a distinction …
