The
canon of
ejusdem generis (Lat. "of the same type") also is used in
common law. Put briefly, it means that a general
expression following a list of specific expressions must be
construed to refer to something "of the same type" as the things previously listed.
An example of this can be found in the
U.S. Supreme Court's decision in
Circuit City v. Adams, 532 U.S. 105 (2001). There, the Court had to construe a
provision of the
Federal Arbitration Act (FAA), 9
U.S.C. § 1:
§ 1."Maritime transactions" and "commerce" defined; exceptions to operation of title
[...] " commerce", as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.(emphasis added)
Adams was an employee of
Circuit City, who sought to sue the company for
discrimination. He had signed an
adhesive binding arbitration agreement included in the
fine print of his initial job application. Circuit City sought to
compel arbitration of Adams' discrimination claim.
The
question presented to the Supreme Court on
certiorari was whether the
exemption of "any other class of workers engaged in foreign or interstate commerce" from the application of the FAA applied to Adams, who was not a seaman or railroad employee.
The Court ultimately
held, despite clear and
unequivocal legislative history to the
contrary, that "[t]he wording of § 1 calls for the
application of the maxim
ejusdem generis, the statutory canon that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words,” 532 U.S., at 115, and, accordingly, that only
transportation workers were to be exempt from the provisions of the FAA. However, the
dissenting
Justices noted that the legislative history, which strongly suggested that
Congress had intended to exempt
all employees from the reach of the FAA, only made specific reference to "seamen [and] railroad employees"
ex abundanti cautela (out of an abundance of caution), to ensure that the Act's most vocal and organised opponents were satisfied:
Like many interpretive canons, however, ejusdem generis
is a fallback, and if there are good reasons not to apply it,
it is put aside. E. g., Norfolk & Western R. Co. v. Train
Dispatchers, 499 U. S. 117, 129 (1991). There are good reasons
here. As Adams argued, it is imputing something very
odd to the working of the congressional brain to say that
Congress took care to bar application of the Act to the class
of employment contracts it most obviously had authority to
legislate about in 1925, contracts of workers employed by
carriers and handlers of commerce, while covering only employees
“engaged” in less obvious ways, over whose coverage
litigation might be anticipated with uncertain results. It
would seem to have made more sense either to cover all coverable
employment contracts or to exclude them all. In fact,
exclusion might well have been in order based on concern
that arbitration could prove expensive or unfavorable to employees, many of whom lack the bargaining power to resist
an arbitration clause if their prospective employers insist on
one. And excluding all employment contracts from the
Act’s enforcement of mandatory arbitration clauses is consistent
with Secretary Hoover’s suggestion that the exemption
language would respond to any “objection . . . to the
inclusion of workers’ contracts.”
* * *
The very fact, as the Court points out, that Congress already
had spoken on the subjects of sailors and rail workers
and had tailored the legislation to the particular circumstances
of the sea and rail carriers may well have been reason
for mentioning them specifically. But making the specific
references was in that case an act of special care to make
sure that the FAA not be construed to modify the existing
legislation so exactly aimed; that was no reason at all to limit
the general FAA exclusion from applying to employment contracts that had not been targeted with special legislation.
Congress did not need to worry especially about the FAA’s
effect on legislation that did not exist and was not contemplated.
As to workers uncovered by any specific legislation,
Congress could write on a clean slate, and what it wrote was
a general exclusion for employment contracts within Congress’s
power to regulate. The Court has understood this
point before, holding that the existence of a special reason
for emphasizing specific examples of a statutory class can
negate any inference that an otherwise unqualified general
phrase was meant to apply only to matters ejusdem generis.
On the Court’s own reading of the history, then, the explanation
for the catchall is not ejusdem generis; instead, the explanation
for the specifics is ex abundanti cautela, abundance
of caution, see Fort Stewart Schools v. FLRA, 495
U. S. 641, 646 (1990).
532 U.S., at 138-40 (footnotes omitted)(
Souter, J., dissenting)