Fun with Reverse Ejusdem Generis

By Jay Wexler. Full Text.

In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. The canon of ejusdem generis has a long and storied history in the law, has been used by judges in countless cases, and has been the subject of a large body of scholarly commentary over the years. Unlike its more famous cousin, the canon of statutory construction known as “reverse ejusdem generis” is far less well known and understood. This canon states that when a statute includes a list of terms and a catch-all phrase, the terms in the list are limited to those that are consistent with the catch-all phrase. Unlike ejusdem generis, the canon of reverse ejusdem generis has not been the subject of an enormous body of scholarly commentary over the years. Indeed, it has been the subject of absolutely no scholarly commentary at all.

Until now. For the first time in the history of the world, this Article provides a description of the canon, providing historical examples from cases involving such disparate topics as piracy, intoxicating beverages, and hazardous sludge. The Article then analyzes the canon, explaining the linguistic variables that make the canon more or less relevant in any given case. In particular, the Article argues that the more precise the catch-all term in a statute, the more likely the canon should apply to guide the statute’s interpretation. Finally, the Article looks in-depth at the landmark greenhouse gas decision of the Supreme Court in Massachusetts v. EPA, which posed a reverse ejusdem generis issue even though no party or judge identified it as such. The Article argues that the failure to recognize that the statute posed a recurring interpretive problem rendered the treatment of the relevant statutory provision unsatisfying and unpersuasive. The Article concludes by arguing that courts, scholars, and litigants should recognize the existence of the “reverse ejusdem generis” canon and indeed call it by that name to ensure that future courts struggling with similar interpretive issues can more easily learn from earlier efforts and reach more informed conclusions.