Friday, November 6, 2009

another maxim (not the magazine)

Expressio unius est exclusio alterius. According to this maxim, "Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 517.)

This footnote is great, showing the weakness of maxim quoting "masquerading" as law:
FN15. In United States v. Castro, 837 F.2d 441 (11th Cir.1988), the court emphasized the limitations of the maxim quoting the following excerpt: "Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exclusio alterius, which is a rather elaborate. mysterious sounding, and anachronistic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, this maxim is at best a description, after the fact, of what the court has discovered from context."
(Abdullah v. American Airlines, Inc. , 969 F.Supp. 337, 348 (D.Virgin Islands 1997).)

Burn.

No comments: