Expressio Unius et Cetera

 

By: Wesley W. Horton

Recently my partner Dana Hrelic mentioned to me that she had just returned from a conference with lawyers in Montreal. I responded that I had just returned from a conference with important lawyers in New Haven. This followed:

Dana: “Are you implying that the lawyers I saw were not important?”

Me: “Not at all. I wasn’t implying anything about your lawyers.”

Dana: “I learned in law school that ‘expressio unius est exclusio alterius.’”

Me: “I learned in March that Chief Justice Roberts disagrees with you. Take that!”

[Pause to bring up NLRB v. SW General, Inc., 137 S.Ct. 929 (2017)]

Dana: “Ha! It’s clearly distinguishable.”

And so it may be. But what is significant to practicing lawyers is that common law principles we deal with every day in our routine contract and torts cases can be affected by glancing at the latest U.S. Supreme Court cases that on their face deal with issues most of us will never face. (SW General concerned acting appointments by the President.)

“Expressio unius” is a phrase lawyers deal with all the time, and Chief Justice Roberts’ 6-2 opinion explains in clear English with sparkling examples when it does and does not apply. As he notes, if a permanent sign says, “Come see the lion and the giraffe,” and a temporary sign says, “The giraffe is sick,” you can properly infer that the lion is not sick. But if a radio station says, “We play your favorite hits from the ‘60s and ‘70s, but even though we play hits from the ‘60s, we do not play music by British bands,” you cannot properly infer that the station plays music by British bands from the ‘70s.

So Dana relied on the lion and I relied on the British bands. We declared a draw and returned to our billable files.[1]

[1]           Technically, I wrote this blog and then returned to my billable files.