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The majority note that material contained in earlier-
enacted legislation, but omitted in subsequently enacted
legislation, is deemed to be repealed by the subsequent
enactment. The majority employ this canon (and apply it to
regulations) to support their conclusion that the 1992 proposed
regulations’ failure to restate one or the other of the express
nonparticipation rules contained in the 1988 and 1989 temporary
regulations means that the 1992 proposed regulations repealed
that rule.
Although the majority’s canon may be helpful at times, this
case should not (and need not) be decided by a canon of
construction. First, the canon cited by the majority is far from
an absolute rule. It may be disregarded where the lawmaker’s
intent is found to be otherwise. See Singer, Sutherland
Statutory Construction, sec. 23.32 at 283 and sec. 23.12 at 363
(5th ed. 1993).
Second, and more importantly, the canons of construction
usually cut both ways, see Llewellyn, The Common Law Tradition:
Deciding Appeals 521-535 (1960), even when they’re not just
wrong. See Posner, Statutory Interpretation--in the Courtroom
and in the Classroom, 50 U. of Chi. L. Rev. 800, 806 (1983).16
16 The temporary regulations contain an excellent example of
a situation in which the majority’s canon would produce the wrong
answer. The 1988 temporary regulations’ participation definition
contained language expressly preventing shareholder participation
in C corporation activities. The 1989 temporary regulations
(continued...)
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