Ethan J. Leib (Fordham University School of Law) and James J. Brudney (Fordham University School of Law) have posted The Belt-and-Suspenders Canon (Iowa Law Review, Vol. 105, forthcoming 2020) (36 pages) on SSRN. Here is the abstract:
This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully – rather than regrettably and lazily – think about employing “belt-and-suspenders” efforts in their drafting practices. We then analyze in depth courts’ disparate efforts to integrate a belt-and-suspenders canon into their thinking about anti-surplusage rules and other textual canons. By sketching a promising future for this new canon, we hope to draw judicial practice closer to legislative practice and to enhance the enterprise of statutory interpretation for textualists and intentionalists alike.
(Via Prawfsblawg.)
Seems relevant to textualist constitutional interpretation as well. Although, as Asher Steinberg says in the comments at Prawfsblawg, it's not entirely clear that a new canon is needed, as opposed to just less reliance on the anti-surplusage canon. Steinberg also adds:
I don't find the very brief discussion of why textualists should care for this canon at all convincing. It isn't at all clear that textualists should care much about the realities of the legislative process (see Manning's "Inside Congress's Mind" for textualist skepticism about the relevance of Gluck and Bressman's research about how Congress writes statutes to interpretation), inasmuch as public meaning isn't a function of little-known facts about that process. There's a sentence in here that alternatively claims that belt-and-suspenders readings are efforts to determine the communicative content of statutes. Are they? Suppose it were the case that English speakers generally assume non-redundancy in trying to understand others' speech and writing, and that they are largely unaware of the particular realities of the legislative process that cause Congress to depart from this norm of non-redundancy. Were that the case, I don't know what a belt-and-suspenders reading could be aiming at but congressional intentions that would be obscure to most readers.
True, but I think English speakers, although perhaps "generally assum[ing] non-redundancy in trying to understand others' speech and writing," also recognize the use of redundancy for emphasis and certainty in some circumstances.
Posted at 6:19 AM