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By one of those extraordinary coincidences that making teaching statutory construction a pleasure in the Spring, the Court managed to come down with an opinion today that confirmed my low view of the so-called "Rule of Lenity" the day after I taught lenity in statutory construction. In the course of holding that the Fair Labor Standards Act's anti-retaliation provision's phrase "filed any complaint" includes the making of an oral complaint, the Court in Kasten v. Saint-Gobain Performance Plastics held that the rule of lenity was no reason to favor the defendant's narrower view of the phrase. According to the Court (slip opinion at pp 13-14):

Saint-Gobain invokes the ?rule of lenity? in support of its ?written complaint? interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute ?when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.? United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those who violate the anti-retaliation provision before us are subject to criminal sanction, 29 U. S. C. §216(a). And we have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But after engaging in traditional methods of statutory interpretation, we cannot find that the statute remains sufficiently ambiguous to warrant application of the rule of lenity here.

Given that Justice Scalia took a different view of the same phrase and is presumably no dummy when it comes to reading legal texts, the phrase in question is at least somewhat ambiguous. So the level of ambiguity necessary to trigger the soi-disant "rule" of lenity is pretty high: The canon really ought to be called "the exception of lenity."

The canon is, indeed, so exceptional that I wonder why I bothered wasting twenty minutes of class time yesterday teaching that lenity does not matter, only to be confirmed today that the canon (and presumably the class time wasted telling people about its phantom existence) is as useless as I took it to be. Oddly, Justice Scalia said nothing about lenity in his dissent. Given that he has been a crusader for the rule, does this mean that we can now adopt Dan Kahan's suggestion that the rule does not really exist and just stop teaching it altogether? Or are there state courts out there who give lenity more than lip service?

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