March 2007, Volume 93, Issue 1
How to Construe a Hybrid Statute
by Jonathan Marx
93 Va. L. Rev. 235 (2007)
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This Note addresses the interpretation of statutes creating civil and criminal liability with identical or nearly-identical language. It illustrates how, if conventional interpretive rules are applied, these “hybrid” statutes can receive a (problematic) path-dependent interpretation: the statute’s meaning will depend on whether an ambiguity first comes to light in a civil or criminal case. However, the most obvious solutions to this problem – applying lenity in all civil cases arising under hybrid statutes and dual construction of identical language – are unsatisfactory. Dual construction is seldom if ever appropriate, because of the descriptive force and normative attractiveness of the consistent usage canons. Moreover, an unthinking application of lenity in all civil cases would seriously impair the operation of many important statutes, and probably frustrate legislative expectations. Instead, this Note argues that language common to the civil and criminal portions of hybrid statutes should, presumptively, be construed both consistently and evenhandedly. In other words, glosses rendered civilly should apply criminally and vice-versa, and the mere existence of a certain level of ambiguity should not presumptively resolve the interpretive question either way.
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