The case is University of Texas Southwestern Medical Center v. Nassar, and it deals with employment discrimination. The linguistic issue that the brief deals with is the interpretation of prohibitions against discrimination “because of [the employee’s] age” or “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the adverse action? Or is it enough for the plaintiff to prove that the prohibited factor was one of several motivations for the action, any one of which would have been sufficient on its own?

Here is how the issue is phrased by the petitioner (the University of Texas):

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

For those of you who are not employment lawyers, and for whom this may not be crystal clear, here’s the legal background.

What’s at issue in an employment discrimination case is the reason for the employer’s adverse action against the plaintiff. The adverse action (firing, demotion, whatever) is illegal if it was taken for a forbidden reason. The reasons that are forbidden fall into two categories. The first is based on the plaintiff’s personal characteristics: it’s illegal to take adverse action against an employee because of his or her race, sex, national origin, etc. Let’s call these “ordinary discrimination cases.” The second category is based on the plaintiff’s actions: it’s illegal to take adverse action against an employee because of the employee’s having filed a discrimination complaint or otherwise opposed discriminatory action by the employer. These are “retaliation cases.”

The defendant in a discrimination case typically argues that it did not act on the basis of one of these impermissible reasons. For example, the employer might argue the employee was fired because he or she was incompetent. In some cases, the issue is whether this was really the reason for employer’s action, or whether the alleged reason was really just a pretext for discrimination. But in other cases, the employer may have had multiple reasons, so that, for example, the employer’s action was based on both the employee’s race and his performance. These are called “mixed motive” cases, and  the question is whether in such cases the employer was acting “because of” the prohibited factor.

In a 2009 case named Gross v. FBL Financial Services, the Supreme Court held that in the case of the Age Discrimination in Employment Act, the answer is no. The Court held the plaintiff has to prove that his or her age was a “but for” cause of the employer’s action—i.e., that but for the employee’s age (= had  it had not been for the employee’s age), the employer would not have taken the adverse action. And the reason for this, according to the Court is that the statute uses the word because:

The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean “By reason of, on account of” (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, (explaining that the claim “cannot succeed unless the employee’s protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co. (recognizing that the phrase, “by reason of,” requires at least a showing of “but for” causation); Safeco Ins. Co. of America v. Burr (observing that “[i]n common talk, the phrase `based on’ indicates a but-for causal relationship and thus a necessary logical condition” and that the statutory phrase, “based on,” has the same meaning as the phrase, “because of” (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”). [citations modified]

The question in the Nassar case now before the Court is whether the holding in Gross should be extended to the prohibition against retaliation in Title VII of the Civil Rights Act of 1964, which is the Big Kahuna of antidiscrimination statutes.

Here is the Introduction and Summary of Argument from my brief:

1. Petitioner argues that this case “should begin and end with the statutory text.” We agree.

However, we disagree with Petitioner about what the text means. That dis­agreement is not based on any dif­ference be­tween the statutory text here and the text at issue in Gross. Rather, we respectfully submit that Gross was wrongly decided.

The holding in Gross rests on the premise that but-for causation is required by the use of the word because in the phrase “because of such individual’s age.” But that pre­mise was unjustified: the concept of but-for caus­ation is not part of what the word because means. This is shown unmistakably by the evidence of how the word is actual­ly used—evidence that we will present in detail.

Since because meant the same thing in 1964 that it means today, Title VII’s prohibition against retal­iation has always covered cases involving mixed motives. Even if one does not accept Respondent’s argument that the retaliation provision is covered by the 1991 amend­ments to Title VII, those amendments did not eliminate the preexisting coverage of mixed-motive claims. The amendments could have had such an effect only if they operated as a partial repeal-by-implication. Such repeals are disfavored, and the amendments cannot reasonably be interpreted as having worked such a repeal.

The conclusion that but-for causation is unnecessary is not changed by Title VII’s legislative history. Pet­i­tioner recognizes that the legislative history cannot modify Title VII’s “plain statutory text.” And the one item that Petitioner offers from that history is incon­clusive.

Similarly insufficient to overcome the clear text are Petitioner’s warnings about the “jurispruden­tial mor­ass” that would supposedly result if mixed-motive retal­iation claims are allowed. Those warn­ings con­cern mat­ters of policy, not of statutory inter­pretation. And even as a policy matter, the warnings make little sense given that the 1991 amendments to Title VII endorse and preserve mixed-motive liability in ordinary disparate-treatment cases. Regard­less of how this case is decided, mixed-motive claims will continue to be brought. As a result, the ruling Petitioner seeks would do nothing to bring uniformity to the law of employment discrim­ination.

2. In addition to interpreting the word because incor­rectly, Gross erred in its reliance on the tort law. At common law, but-for causation is required in connection with deciding whether the plaintiff’s injury was caused by the defendant’s actions—an issue rarely if ever in dispute in discrimination or retaliation cases. When the relevant inquiry focuses on the reason for the defen­dant’s action rather than on the action’s results, the com­mon law does not require but-for caus­ation.

In any event, even if but-for causation is thought to represent the starting point of analysis, it does not represent the ending point. The general requirement of but-for cause has exceptions, and one of those excep­tions (relating to concurrent sufficient causes) applies to mixed-motive discrimination and retaliation claims.

3. For the reasons outlined above, and explained in more detail below, but-for causation is not an element of a Title VII claim for retaliation. Nor, we submit, can a defendant avoid a finding of liability by showing that it would have taken the same action even if it had not considered the impermissible reason. But that does not mean that the issue of but-for causation is irrelevant. It is relevant, however, to the issue of remedy, not liability.

Title VII gives courts discretion regarding the remedy to be awarded to a successful plaintiff. If the defendant shows that it would have taken the same adverse action even apart from the impermissible reason (i.e., if that reason was not a but-for cause of the action) the court can deny the plaintiff relief such as back pay, front pay, and reinstatement. This approach would avoid the pos­sibility that plaintiffs in mixed-motive cases could wind up better off than they would have been had the em­ployer not violated the law.

4. A decision extending Gross to Title VII’s retaliation provision is not required by considerations of stare decisis. The Court need not decide now whether Gross itself should be overruled, because this case involves a different statute than the one at issue in Gross. Furthermore, consider­ations of stare decisis cut both ways, because Pet­itioner is in effect asking the Court to overrule Price Water­house v. Hopkins.  Faced with these competing invo­cations of precedent, the Court’s priority should be to simply interpret the statute correctly.

The importance of getting the meaning right is amp­lified by the fact that the word because appears in many provisions of the United States Code. If Gross’s mis­taken interpretation is held to be binding as a matter of stare decisis, it will affect the meaning of all those provisions, with results that might be drastic and un­predictable.

Finally, Gross has not engendered settled expectations about the meaning of Title VII’s retaliation provision, so a refusal to extend Gross would not impair sig­nificant reliance interests. In contrast, Gross itself upset well-established expectations, and the result that we advocate would merely restore the pre-Gross status quo.

The letter brief also makes several arguments paralleling what my post said; whether those arguments were taken from the post rather than developed independently, I can’t say. (Though I certainly know what I choose to believe.)

H/t Legal Times Blog via HowAppealing.

I’m going to take a look at how the court handled some of those issues—at the conclusion it reached and the reasoning it used to get there.

The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.

The issue

Ordinarily, the president’s power to appoint high-level officials is subject to the requirement that his choices be confirmed by the Senate. But because the Senate isn’t always open for business, the Constitution provides that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” One of the questions raised by this provision is what exactly is meant by the phrase the Recess of the Senate. That’s the issue I will discuss in this post.

To put the question into context, here’s some quick background. Every two years, when the most recently-elected members of the House of Representatives start their terms, a new term of Congress begins. Each new term is referred to as a separate Congress; the current Congress is the 113th. Since the Constitution requires Congress to meet at least once a year, each two-year Congress is divided into at least two officially-designated sessions. Currently, the 113th Congress is in its first session.

In between its formally-designated sessions, Congress is in recess. Everyone agrees that these breaks count as “recesses” for purposes of the Recess Appointments Clause. Congress also takes breaks periodically during each officially-designated session. During those breaks, Congress is simultaneously in session and not in session. It is in session because the officially-designated session is still in progress, but it is out of session because it has temporarily stopped conducting business.

The question is whether these breaks within an officially-designated session constitute “recesses” such that the president can exercise his recess-appointment power. According to the D.C. Circuit, the answer is no.

The court’s reasoning

Here is a summary of the linguistic reasons that the D.C. Circuit gave for its decision.

1. The Constitution uses the phrase the Recess, not a Recess. The word the is “‘[an] article noting a particular thing’” (quoting Johnson’s dictionary; emphasis by the court). “Unlike ‘a’ or ‘an,’ that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the [NLRB’s] proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’

2. The noun in the Recess is singular.

3. The Constitution uses the phrase the Recess twice, whereas it uses the verb adjourn or the noun adjournment six times “to refer to breaks in the proceedings of one or both Houses of Congress.” Moreover, none of the uses of adjournment were preceded by the definite article. “All this points to the inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.”

4. The Recess Appointments Clause provides that appointments made during “the Recess” will expire “at the End of [the Senate’s] next Session.” This sets up a dichotomy between “the Recess” and the “Session”. “It is universally accepted that ‘Session’ here refers to the usually two or sometimes three [officially-designated] sessions per Congress. therefore, ‘the Recess’ should be taken to mean only times when the Senate is not in one of those Sessions.”

In the remainder of this post, I’ll discuss, in turn, the D.C. Circuit’s reliance on the use of the word the, its interpretation of the phrase the Recess, and its discussion of the Constitution’s use of recess on the one hand and adjourn and adjournment on the other.

“The”

The first problem with the court’s analysis—and it’s a big one—is its reliance on what it thinks is the meaning of the.

As I’ve said, the court relied on Samuel Johnson’s Dictionary of the English Language, which defined the as an “[t]he article noting a particular thing.” While the D.C. Circuit treats that definition as authoritative, Johnson himself was under no such illusions. “Dictionaries are like watches, he once wrote, “the worst is better than none, and the best cannot be expected to go quite true.”

For present purposes, the major problem with Johnson’s definition of the is that it’s too narrow. While the can of course be used to mark the noun as referring to “a particular thing” (e.g., I want you to meet the guy I told you about yesterday), it can also be used in other ways. For example, it can be used with nouns denoting types of things, as in The sun comes up in the morning.

Also worth noting, though it’s less directly relevant here, is that the definition doesn’t give any basis for distinguishing the definite article the differs from the indefinite article a,  which can also be used in referring to a particular thing (I met a guy yesterday who I want you to meet). In fact, both articles can be used as parts of noun phrases that refer to the exact same particular thing:

I met a guy yesterday when I was downtown. I talked with him for a little while and I finally realized that he was the guy you told me about last week.

Even apart from the flaws in Johnson’s definition, the definition doesn’t really support the D.C. Circuit’s interpretation of the Recess Appointments Clause. Specifically, even under the D.C. Circuit’s interpretation, the the in the Recess doesn’t mark the phrase as referring to “a particular thing.”

The D.C. Circuit did not interpret the Recess as referring to a particular recess (e.g., the one between the first and second sessions of the 101st Congress). Rather, the court interpreted it as referring to recesses generally (with recesses meaning the breaks between formally designated sessions). Thus, under the D.C. Circuit’s interpretation, the president has the power to make recess appointments every time such a recess occurs.

This suggests that the D.C. Circuit was wrong to rely on the fact that the Recess Appointments Clause says the Recess rather than Recesses. While the Recess is grammatically singular, it refers to indefinitely many separate recesses. During each two-year election cycle, there are at least two recesses (under the court’s interpretation): one between the first and second sessions of that Congress, and one between the last session of that Congress and the first session of the next one. Since the 113th Congress just began, there have so far been at least 224 breaks that count as recesses under the D.C. Circuit’s interpretation. (I say “at least” 224 because during some Congresses there were three formally designated sessions.)

In contrast to the D.C. Circuit, the U.S. Court of Appeals for the Eleventh Circuit had, in a 2004 decision regarding the Recess Appointments Clause, recognized  the reality that definite noun phrases can refer to types of things as well as particular things:

We do not agree that the Framers’ use of the term “the” unambiguously points to the single recess that comes at the end of a Session. Instead, we accept that “the Recess,” originally and through today, could just as properly refer generically to any one—intrasession or intersession—of the Senate’s acts of recessing, that is, taking a break. See The Random House Dictionary of the English Language 1965 (2d ed.1987) (1966) (defining “the” as “used to mark a noun as being used generically: the dog is a quadruped”); 17 The Oxford English Dictionary, 879 (2d ed.1989) (1928) (defining “the” as “referring to a term used generically or universally” and providing examples of such usage from the 18th Century).

The D.C. Circuit criticized that interpretation for “relying on twentieth-century dictionaries” rather than following Samuel Johnson’s treatment of the “as ‘noting a particular thing’” (emphasis added by the court).

That makes no sense. Sure, the meanings of words can change over time, and a modern dictionary might not accurately reflect how a word was used more than two hundred years ago. But lexicographers have learned a thing or two about language since Samuel Johnson’s day. And the Oxford English Dictionary, which the D.C. Circuit stuck up its nose at, is a historical dictionary. Its purpose is not simply to reflect current usage, but to trace the meanings of words beginning with their earliest uses. When the OED says that the has been used in noun phrases that refer to types of things (i.e., that have “generic reference”), it backs that statement up with nine quotations predating the Constitution, the earliest one dating back a thousand years.

And if that’s not good enough for you, consider this: The Constitution itself includes definite noun phrases that have generic (or at least nonspecific) reference:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

…

[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper….

…

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury….

…

Congress shall make no law…abridging the freedom of speech, or of the press…

…

…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb….

And at the risk of piling on, here’s a nonlegal example from 1771 that I can’t resist:

We may likewise observe, that the lion is not a cruel animal; he kills rather from necessity than choice, never destroying more than he eats, and whenever his appetite is satisfied he is mild and peaceable….All the passions of the lion, the soft passion of love not excepted, are excessive; the love of offspring is extreme: the lionness is naturally weaker, less bold, and more gentle than the lion; but she becomes perfectly rapacious and terrible when she has young….The roaring of the lion is so strong and loud, that it resembles the rumbling of distant thunder. [Source.]

So to sum up, the D.C. Circuit got the meaning of the wrong.

“The Recess”

While the D.C. Circuit followed Johnson’s Dictionary regarding the meaning of the, it didn’t follow Johnson regarding the meaning of recess, which Johnson defines as “remission and suspension of any procedure.” The Court explained, “[T]he natural meaning of ‘the Recess’ is more limited than the broad dictionary definition of ‘recess.’ In context, ‘the Recess’ refers to a specific state of the legislature, so sources other than general dictionaries are more helpful in elucidating the term’s original public meaning.”

I have no problem at all with going beyond dictionary definitions; courts give more weight to dictionaries than they should. But the D.C. Circuit overlooked evidence in the Constitution and in 18th-century usage more generally that doesn’t support its conclusion.

Let’s start with the phrase during the Recess of the Senate. I don’t know about you, but to me that phrase has a strange ring to it. There’s something about it that makes it sound weird—something beyond the fact that the Constitution is written in a somewhat archaic style. This makes me wonder whether the word recess had shades of meaning in 1787 that it subsequently lost, so that relying on our 21st-century intuitions might not be the best idea.

This conjecture is supported by the fact that the Constitution also contains a similar (and semantically related) construction that sounds strange in precisely the same way as during the Recess of the Senate:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Now consider a third construction, which follows the same grammatical pattern as the previous two, but that sounds perfectly fine to me:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

[H/t Edward Hartnett via Language Log.]

The phrase the absence of the Vice President can be paraphrased as the state of the Vice President being absent. Maybe the semantics of the constructions using Recess and Session are similar. Maybe the Recess of the Senate and the Session of Congress could have been understood in 1787 as meaning the state of the Senate being in recess and the State of Congress being in session. If so, that wouldn’t resolve the question of what the Recess Appointments Clause means, but I do think that it would weaken the argument in favor of the D.C. Circuit’s interpretation.

This sense of recess doesn’t appear in the OED, which obviously doesn’t help my hypothesis, but I don’t think it necessarily rules the hypothesis out, either. To test the hypothesis, I’ve looked for other uses of the recess from the late 18th century. While I  haven’t found anything that provides a clear answer, I have found usages that are at least consistent with the hypothesis.

The first one is in the Constitution itself. The Constitution originally provided that each state’s senators would be chosen by the state’s legislature; the issue of vacancies in the Senate was dealt with in the Senate Vacancies Clause:

[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Whereas the D.C. Circuit read the Recess Appointments Clause as setting out a dichotomy between the Recess and the Session (and understood session to mean ‘formally designated session’), the Senate Vacancies Clause distinguishes between the Recess of the Legislature and the next Meeting of the Legislature. The latter dichotomy arguably invites the interpretation that the Recess refers to any period when the legislature is not meeting.

To go further than that in trying to understand what the Recess of the Legislature means, it seems to me that it’s necessary to know more about the functioning of each state’s legislature and about each legislature’s practices regarding what kind of breaks counted as recesses. Just as the D.C. Circuit’s interpretation of the Recess Appointments Clause was informed by the court’s knowledge of how Congress operates, the interpretation of the similar language in the Senate Vacancies Clause has to be informed by knowledge about how the state legislatures operated. I certainly don’t have the necessary knowledge, and I doubt that judges in Noel Canning do, either.

Continuing our look at how the recess was used in the late-18th century, here these examples are from the 20 years or so before the Constitution was ratified

1765—From the Journals of the Massachusetts House of Representatives

The Answer of the honorable Board to the Remonstrance of the House, gives us a very sensible Concern, as it contains not only a Justification of the measures complained of, but is in Effect a Declaration of the honorable Board, that in the Recess of the General Court all the Powers of Government are devolved on, and vested in the Governor and Counsil [sic], at their Discretion to be exercised and executed. [Source]

…

There is nothing more certain than that the Governor and Council of this Province, in the Recess of the General Court, can rightfully claim only Executive Powers[.] [Source]

1777—Order of the Pennsylvania War-Office

And whereas by the recess of the Legislature of this State, no law, however necessary, can at this time be enacted…. [Source]

1780—Constitution of Massachusetts

The governor, with advice of council, shall have full power and authority, during the session of the general court to adjourn or prorogue the same to any time the two houses shall desire; and to dissolve the same on the day next preceding the last Wednesday in May; and, in the recess of the said court, to prorogue the same from time to time, not exceeding ninety days in any one recess; and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the commonwealth shall require the same…. [Source]

Like the Senate Vacancies Clause, these examples seem consistent with the hypothesis that the recess of the Senate could have meant ‘the state of the Senate being in recess.’ And as with the Senate Vacancies clause, we can’t really be sure how recess is used in these passages without knowing more about the functioning of the legislatures in question.

Finally, there’s an example from the Federalist Papers. The Federalist Papers, in case you skipped civics class the day they were covered, are essays that were published in 1787–88 by Alexander Hamilton, James Madison, and John Jay, urging that the Constitution be ratified. Our example comes from the Federalist No. 18 (attributed to Hamilton and Madison, writing as “Publius”), which discussed the “insufficiency of [the Articles of Confederation] to preserve the union.” Hamilton and Madison made their case by comparing the United States under the Articles of Confederation to two ill-fated confederations of republics in ancient Greece. In describing the government of one of the Greek confederations, Hamilton and Madison referred to the chief executive as “administer[ing] the government in the recess of the senate[.]”

Once again: This usage is consistent with my hypothesis about the Recess of the Senate, but without further historical information, it’s impossible to be sure of how the recess is being used. And presumably the necessary historical information is presumably even less accessible (by far) than the information about state legislatures in 18th century.

Where does that leave us? These examples obviously have the potential to shed light on the meaning of the Recess Appointments Clause, but that potential can’t be realized without additional historical information. Without that information, these examples are a source of uncertainty rather than enlightenment.

“Recess” versus “adjournment”

The D.C. Circuit relied on differences in how the Constitution uses the words recess on the one hand and adjourn and adjournment on the other:

Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term “the Recess”: once in the Recess Appointments Clause and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.

Although the Court isn’t fully explicit in its reasoning, I think that this argument assumes that the use in the Constitution of the words adjourn and adjournment represented a choice to use those words rather than recess. And that assumption, in turn, relies on what I’ll call the Assumption of Substitutability—the assumption that in the English language of 1787, the word recess could have been more or less freely substituted for adjourn or adjournment in the provisions the court refers to. For if recess was not used as a verb in the late-18th century, the Constitution’s use of adjourn didn’t represent a choice of one near-synonym over another.

I think that the Assumption of Substitutability is unjustified and therefore that the Court’s argument based on it is unjustified as well.

The starting point is to look at the six uses of adjourn or adjournment that the court refers to; they are set out below. As you read each one, consider whether it deals with (a) the act of adjourning or (b) the period during which Congress is adjourned.

[1] [A] Majority of each [house of Congress] shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day….

[2] Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

[3] If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

[4] Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States…

[5] [The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper….

It seems clear to me that in provisions 1, 4, and 5, the instances of adjourn or adjournment denote the act of adjourning and not the ensuing period of being closed for business. In provisions 2 and 3, they also denote the act of adjourning, but might be understood as also encompassing the closed-for-business period.

Thus, for the Assumption of Substitutability to be valid, the vocabulary of the English language in 1787 had to make the word recess available to denote the act of interrupting legislative proceedings. To what extent was that the case?

In the case of recess used as a verb, the answer seems to be, very little, if at all. The earliest citation in the OED for the use of recess (in the relevant sense) as a verb is from 1844. That doesn’t necessarily mean that the word wasn’t used as a verb before then, but it’s a data point. And it’s supported by other data points.

In an effort to compare the relative frequencies of the use of recess and adjourn as verbs during the 35+ years before the Constitution was ratified, I ran some searches using two of the corpus-based resources that are available on the Web: the Corpus of Historical American English (COHA) and the Google Books Ngram Viewer. The results of those searches are consistent with what the OED suggests: in the late 18th century, recess was rarely used as a verb.

COHA’s coverage only goes back to 1810, so it can’t provide any direct evidence about usage patterns at the time the Constitution was drafted and ratified. However, usage early in the 19th century is relevant, I think. The earliest use in COHA of the words recess, recesses, recessed, or recessing in the legislative context was in 1925, and in COHA’s first century of coverage, there were only nine verbal uses of the word in any of its senses. (Search results here.) In contrast, the various forms of adjourn (adjourn, adjourns, adjourned, adjourning) were used as a verb 43 times in the period 1810–1829, and even more frequently in each subsequent decade. (Search results here.)

My Google Ngram results (which covered the period 1750–1788) were similar: recess in its various forms was used as a verb much less commonly than was adjourn, and in some if not all of those uses the word may have been used in an entirely different sense (e.g., ‘To make a recess or recesses in (a structure or object); to cut into, so as to form a recess.’ or ‘To set (a part of a wall, or other structure) in a recess.’ (Definitions from the OED)). (Search results: all English; American English.)

Further evidence that recess was not used as a verb when the Constitution was adopted (or at least was not often used as a verb) comes from examples like these, in which the verb adjourn is used to denote the action of putting Congress into a “recess”:

1775—Journal of the Continental Congress

On motion Resolved, That when the Congress adjourns for recess, it be adjourned to meet at Philadelphia. (Source.)

1784—Journal of the U.S. Congress (under the Articles of Confederation)

A motion was made by Mr. Howell, seconded by Mr. Gerry, That the president be, and he hereby is authorized and directed, to adjourn Congress on the third day of June next, to meet on the thirtieth of October next at Trenton, for the dispatch of public business; and that a committee of the states shall be appointed to sit in the recess of Congress.  (Source.)

1789—Proceedings of the House of Representatives

Mr. Benson introduced a resolution to this purport: that a committee be appointed, to join a committee of the senate, to consider and report when it will be convenient for congress to adjourn ; also, to report what business now before congress must necessarily be attended to previous to a recess, and what will be proper to postpone till the next session—laid on the table. (Source.)

These examples are cases of dogs that didn’t bark. If it had been common to use recess as a verb meaning ‘to go into recess,’ the statements above would have provided obvious opportunities to use the word that way.

While this evidence doesn’t definitively answer the question, I think it provides significant reason to doubt the Assumption of Substitutability with respect to the use of recess as a verb. At a minimum, it puts the burden on defenders of the D.C. Circuit’s opinion to provide some evidence supporting a different conclusion.

Now let’s look at the Constitution’s use of Adjournment to denote the act of adjourning. To what extent was recess used as a noun to similarly denote the act of adjourning for a recess?

The OED has no entry that the word as ever been used that way (whereas it does have an entry for adjournment as a noun meaning “The action or an act of adjourning”). That’s not conclusive evidence against the Assumption of Substitutability, but it obviously provides no evidence in favor of the assumption, either. I’d like to tell you that I’ve found evidence one way or the other in the corpus resources I’ve been discussing. Unfortunately, I can’t think of a search strategy that would produce such evidence, short of brute force—looking at lots and lots of uses of recess.

But let me offer this speculation. If it’s true that recess was seldom if ever used as a verb in the late 18th century, one wouldn’t expect that recess would be used as a noun denote the act of going into recess—especially given that adjournment was available for that purpose. I can’t point to anything backing that up, but it makes sense to me. In any event, there is as far as I can tell no evidence that one could point to in support of the Assumption of Substitutability as it relates to the word adjournment.

The bottom line is that the D.C. Circuit puts more weight on the distinction between the words recess and adjourn(ment) than the usage evidence justifies.

This article takes a critical look through the lens of linguistics at the “always-speaking” principle in law — an influential principle that is recited in materials on legislative drafting as the justification for using the present tense, adopted in many common-law jurisdictions as a principle of interpretation, and accepted as a foundation for the linguistic analysis of the use of tense in statutes. The article concludes that the principle is an inadequate basis for interpreting or analysing statutes, for at least two reasons: (i) the interpretive results that the principle is intended to support are explainable in terms of widely accepted principles in the analysis of tense, without any need to posit special principles that apply only to statutes; and (ii) the interpretations that would be required if the always-speaking principle were taken seriously would in many cases probably be regarded as unnatural by native speakers of English.

Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.

Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.

Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.

At the end of the post, I raised the question whether the preferences stated in these canons can be justified on purely linguistic grounds—i.e., whether they represent “valid generalization[s] about how expressions in English are understood[.]” I’m going to try to answer that question here.

This post is a long one, so let me say up front that the verdict on these canons is a mixed one. The good news is that in some categories of cases where these canons apply, there is in fact a linguistic justification for applying them, by which I mean that in those applications the canons more or less parallel one of the recognized tendencies in how people process and comprehend sentences. (The same parallel applies to the rule of the last antecedent as it’s generally applied by the courts, which differs somewhat from the Scalia–Garner version).

Now the bad news. First, the processing tendency that I’ve referred to is just one of the factors that  influences how a given sentence is understood, and other factors can exert an influence in a different direction. So even in cases where the canons are consistent with this processing tendency, it’s hard to say in advance whether applying the canons would result in a linguistically justified interpretation.

Second, in the canons’ other applications, I don’t think there is the same parallel between the canons and the kinds of processing tendencies that I’ve referred to above. And more than that, in a large subset of those applications, the canons are actually inconsistent with what the literature on processing tendencies would predict. In those applications, therefore, there is reason to think that applying the canons would result in interpretations that are linguistically unjustified.

On to the details.

The rule of the last antecedent (non-Scalia/Garner version). As I’ve said previously, the Last-Antecedent Canon in Reading Law differs in its coverage from the rule of the last antecedent as it is generally applied today. So before discussing the Scalia/Garner version, I’m going to deal with the rule of the last antecedent as generally applied. But in doing so, I’m going to rephrase the rule in terms that are more precise than the formulations that the courts typically use. My reformulation covers what I think are the prototypical applications of the rule of the last antecedent; while there are undoubtedly some cases that apply the rule but don’t fit the description, they are outliers.)

1.   The rule applies to the interpretation of phrases in which a modifier appears after the word(s) or phrase(s) that it modifies (men and women in glass houses as opposed to transparently-housed men and women).

2.   The rule provides that if the modifier could be read either as modifying the item it immediately precedes it (the first diagram below) or as modifying the larger phrase of which that item is a part (the second one), the former interpretation is preferred.

Preferred by rule of the last antecedent

Dispreferred by rule of the last antecedent

So is this default rule of interpretation linguistically justifiable? The answer is a qualified “yes.”

Before I explain that answer, a note is in order about the terminology I’ll be using. When linguists use tree diagrams like the ones above, they typically describe the relationship of the various parts of a phrase in terms of how the part of the diagram representing the phrase is “attached” to the portion of the tree that precedes it. When there are multiple potential attachment sites, the expression is syntactically ambiguous, with each possible structure typically corresponding to a different interpretation. It is common to distinguish between the potential attachment sites in terms of whether they are high or low on the tree diagram Thus, in diagram (a), the phrase in glass houses attaches low in the diagram to the noun women, while in (b) it attaches higher in the diagram to the larger phrase men and women. Low attachment corresponds to the interpretation called for by the rule of the last antecedent. This can be seen by the fact that the modifier in glass houses combines with women to form the noun phrase women in glass houses, which then combines with men to form the larger noun phrase [[men] and [women in glass houses].

In the course of comprehending an ambiguous expression, the brain has to somehow settle on one of the possible structures as the right one, thereby resolving the ambiguity. The process by which that happens has been the subject of extensive research in psycholinguistics; a fairly recent overview of this work can be found here. It appears from this research that in resolving syntactic ambiguities, there is a tendency toward low attachment. And as was first noted by Larry Solan in his book The Language of Judges, this tendency parallels the rule of the last antecedent.

I discussed this parallel in my amicus brief in United States v. Hayes. The brief described the rule of the last antecedent as “an example of a principle of legal interpretation that has a solid linguistic basis” and as “an instance in which the law anticipated later developments in ling­uistics.” But on reflection, and after further reading in the literature, that strikes me as having been a overly exuberant. Because, here’s the thing: The low-attachment tendency is only one of the factors that influences the way sentences are understood. Other factors are at work as well, such as the context in which the sentence appears, the semantic properties of the words in the sentence, and how the sentence is punctuated. In any given case, those factors may push toward a different interpretation, and in some case they will overcome the tendency toward low attachment.

In trying to figure out whether the rule of the last antecedent makes linguistic sense, it seems to me now that it’s not enough simply to point to the parallel with the low-attachment tendency. I think it’s necessary to ask whether the application of the rule will result in the most natural interpretation in a majority of cases. In other words, is the rule a more accurate guide for decisionmaking than the alternatives?

That’s a question that I can’t even begin to answer given what I currently know. It would be necessary to select a sufficiently large sample of statutes that involve the appropriate kind of syntactic ambiguity (how big a sample? beats me) and then analyze each statute in an attempt to arrive at the interpretation that seemed the most natural. The amount of work required would be enormous, and it’s not at all clear that the results of the analysis would be reliable.

So I’m afraid that the linguistic validity of the rule of the last antecedent will have to remain shrouded in uncertainty. The most that I’m prepared to say is that the reliability of the rule in any given case is likely to increase in proportion to the distance between the modifier and the high-attachment site. The longer that distance, the greater the likelihood of a low-attachment interpretation.

Reading Law: The Last-Antecedent Canon

A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.

Although this canon is Scalia and Garner’s version of the rule of the last antecedent, I can’t simply say, “See the discussion above.” That’s because the coverage of this canon differs from that of the rule of the last antecedent. The rule of the last antecedent (as I’ve formulated it) covers cases involving the semantic relation of modification, while the coverage of the Scalia/Garner canon is defined with reference to specified lexical categories (i.e., parts of speech). That’s significant because expressions using those categories—pronouns, relative pronouns, or demonstrative adjectives—don’t necessarily involve modification, and therefore don’t necessarily present the kind of syntactic ambiguity that implicates the tendency toward low attachment.

Consider, for example, the following provision of the Constitution, which Scalia and Garner use to illustrate this canon:

In Case of the Removal of the President from Office, or of his Death, Resignation or Inability to discharge the Duties of the said Office, the Same shall devolve on the Vice President.

When President William Henry Harrison died in office, the question arose whether his vice president, John Tyler, became the new president or instead merely assumed the president’s duties, while remaining vice president. The interpretive question has to do with the clause, “the Same shall devolve on the Vice President.” As Scalia and Garner put it, “[W]hat is the antecedent of the legalistic pronoun same?”

That issue has nothing to do with modification or with tendencies either toward or away from low attachment. The uncertainty about the antecedent of “the Same” has implications for the sentence’s syntactic structure, which is the same under either interpretation. The low-attachment tendency that’s discussed above is therefore irrelevant; the process by which pronouns are matched up with their antecedents are different than those by which grammatical structure is parsed.

Where does that leave us? I’m less familiar with the research into the resolution of ambiguities in pronoun reference than I am with the research about attachment ambiguities. However, my impression is that the picture regarding pronoun-reference ambiguities is even muddier than it is regarding attachment ambiguities. This is an area in which interpretations are highly dependent on context. And although the recency of a potential antecedent may play a role, other factors are probably more important, such as the relative prominence of each potential antecedent in the text.

In many cases, for example, there appears to be a tendency to interpret pronouns as referring to potential antecedents that appear as the subject of the sentence or (what is often the same thing) that appear in the sentence before the other potential antecedents. These tendencies will generally favor an interpretation inconsistent with what would be favored by the Last-Antecedent Canon.

Interestingly, Scalia and Garner recognize this tendency: “The last-antecedent canon may  be superseded by another grammatical convention: A pronoun that is the subject of a sentence and does not have an antecedent in that sentence ordinarily refers to the subject of the preceding sentence.” (146.) Yet that tendency operates not only across sentence boundaries but also within a single sentence.

One last point before moving on. Scalia and Garner argue that the Last-Antecedent Canon is “the legal expression of a commonsense principle of grammar,” which they describe as follows (quoting from Robert Burchfield’s revision of Fowler’s Modern English Usage):

“It is clearly desirable that an anaphoric (backward-looking) or cataphoric (forward-looking) pronoun should be placed as near as the construction allows to the noun or noun phrase to which it refers, and in such a manner that there is no risk of ambiguity.”

But that’s not a “principle of grammar,” it’s a piece of advice about how to write. Such advice, as I’ve said before, isn’t a reliable source of guidance on how to go about the process of interpretation. (And by the way, Burchfield’s statement is almost self-refuting.)

Reading Law: The Series-Qualifier Canon and the Nearest-Reasonable Referent Canon

Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.

Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.

I’m going to discuss these canons together because they are in a sense mirror-images of each other. On the one hand, each one applies to both premodification (where the modifier precedes the item it modifies) and postmodification (where the modifier follows the modified item). But on the other hand, they differ in the scope that they impute to the modifier: the Series-Qualifier Canon says that the modifier “normally applies to the entire series,” while the Nearest-Reasonable-Referent says that it applies “only to the nearest reasonable referent.”

Let’s start with the Nearest-Reasonable-Referent. With respect to postmodification, this canon parallels the tendency toward low attachment that I talked about in connection with the rule of the last antecedent. This is hardly surprising. The Nearest-Reasonable-Referent Canon as formulated by Scalia and Garner was carved out from the rule of the last antecedent. And in a tree diagram, the way to show that a word or phrase modifies only “the nearest reasonable [preceding] referent” is to show it as attaching lower in the tree than if it modified all the reasonable preceding referents.

To illustrate this canon in action, Scalia and Garner discuss a statute providing that a debtor in a Chapter 13 bankruptcy was not entitled to have his debts discharged if he had “received a discharge…in a case filed under Chapter 7…during the 4 year period preceding” the filing of the Chapter 13 petition. This language is ambiguous as to whether the Chapter 13 discharge was barred (1) if the debtor had received a Chapter 7 discharge within the four-year period, or instead (2) if the Chapter 7 case in which he had received a discharge had been filed within the four-year period.

The two interpretations correspond to the following tree diagrams, the second one of which features low attachment of the phrase during the 4-year period…, and is the interpretation favored by the Nearest-Reasonable-Referent canon.

High attachment; interpretation 1
Received discharge during the 4-year period
Interpretation disfavored by Nearest-Reasonable-Referent Canon
Inconsistent with processing tendency toward low attachment

Low attachment; interpretation 2
Ch. 7 case was filed during the 4-year period
Interpretation favored by Nearest-Reasonable-Referent Canon
Consistent with processing tendency toward low attachment

So that’s how the Nearest-Reasonable-Referent Canon works with respect to postmodification. What about cases involving premodification?

In such cases, the effect of applying the canon is precisely the opposite of its effect with respect to postmodfication. Rather than preferring low-attachment interpretations, it prefers interpretations corresponding to high attachment—a preference that runs counter to the processing tendency toward low attachment.

This can be seen in statutory language at issue in Liparota v. United States, which I’ve discussed previously: knowingly uses…food stamps in a manner not authorized by law. The premodifier  is knowingly, and the question is whether it modifies only uses food stamps or instead modifies the larger phrase uses food stamps in a manner not authorized by law.

Knowingly modifies uses…food stamps
High attachment
Favored by Nearest-Reasonable-Referent Canon
Inconsistent with processing tendency toward low attachment
Consistent with processing tendency toward low attachment

Knowingly modifies uses…food stamps in a manner not authorized by law
Low attachment
Dispreferred by Nearest-Reasonable-Referent Canon

“Wait a minute,” you may be thinking, “In the first diagram, where only the nearest referent is modified, the initial modifier (knowingly) is lower in the tree than in the second diagram, where both referents are modified.” And that’s correct, but the question isn’t how knowingly is attached to the tree, it’s how the phrase in a manner not authorized by law is attached. This is because the focus in dealing with syntactic ambiguities is always on the right edge of the tree.

Here’s why. When we read or hear a sentence, the input comes one word at a time. But the mental process of interpreting the sentence isn’t delayed until the sentence is complete. Rather, it starts immediately, and an interpretation is built up piece by piece. As a result, each incoming word has to be integrated into a partial interpretation that has already been formed. In the context here, with different possible interpretations being represented by tree diagrams, this is like saying that a tree diagram is being constructed a word at a time, and that each new word has to be attached somehow to the diagram. And because English is written from left to right, incoming items appear on the right edge of the tree. Thus, the right edge is where the action is, and—as I said above—the question for the phrase old men and women is how the word women attaches to the tree, not the word old.

As applied to premodification, therefore, the Nearest-Reasonable-Referent Canon states a preference for high attachment—a preference that runs counter to the mental tendency toward low attachment. Since I’m agnostic about how much that tendency supports the rule of the last antecedent and the NRR Canon as applied to postmodification, I’m not about to point to the tendency as a reason to say the NRR canon is unjustified as to premodification. But if you do want to rely on the low-attachment tendency as justifying the canon with respect to premodification, you’re stuck with having it undermines the canon’s validity as to premodification.

Having slogged through that long discussion of the Nearest-Reasonable-Referent Canon, we can deal with the Series-Qualifier Canon much more quickly. Everything just said about the former applies equally to the latter, except that it applies backwards.

Whereas the Nearest-Reasonable-Referent Canon is consistent with the low-attachment tendency in cases when the canon is applied to postmodification but not pre-, the Series-Qualifer Canon is consistent with that tendency when it is applied to premodification but not post-. This is because the two canons differ in the scope that they assign to the modifier. NRR assigns the modifier a narrow scope,  interpreting it as applying only to the nearest referent, while SQR assigns the modifier a wide scope, interpreting as applying to the entire series of potential referents. As a result, the structural effect of applying the canon is reversed:

Premodification

Forcibly modifies assault
High attachment of subsequent items in series
Disfavored by Series-Qualifier Canon
Inconsistent with processing tendency toward low attachment

Forcibly modifies assault, resist, or impede
Low attachment of all items in series
Favored by Series-Qualifier Canon
Consistent with processing tendency toward low attachment

Postmodification

registered in Delaware modifies corporations and partnerships
High attachment
Favored by Series-Qualifier Canon
Inconsistent with processing tendency toward low attachment

registered in Delaware modifies partnerships
Low attachment
Disfavored by Series-Qualifier Canon
Consistent with processing tendency toward low attachment

Thus, the Series-Qualifier-Canon is consistent with the tendency toward low attachment when the canon is applied to cases involving premodification, but inconsistent with that tendency when it’s applied to cases involving postmodification.

I haven’t looked at the cases Posner discusses in his review, so I’m not going to comment on whose reading of those cases is correct. But I do want to point out an inaccuracy in Garner’s response.

Garner says that all the canons of interpretation that are discussed in the book “are well established and have been frequently applied[.]” But as I think I’ve shown in my earlier post Three Syntactic Canons, that’s not correct. Both the Series-Qualifier Canon and the Nearest-Reasonable-Referent Canon break new ground in fairly significant ways. (See the earlier post for the details.) And I’ll add here that the “rule” from which I think the Series-Qualifer Canon derives is one that courts have not cited very often.

Furthermore, as my earlier post points out, the Series-Qualifier Canon is inconsistent with what is said about the rule of the last antecedent in the 7th edition of Black’s Law Dictionary, which was the first edition to be edited by Garner. (I don’t have easy access to the later editions he edited, so I don’t know whether the entry was changed.)

I know from correspondence with Garner that he’s read my posts about Reading Law, and he hasn’t suggested to me that anything I’ve said is wrong. Of course, that doesn’t necessarily mean that he agrees with me; he may just have decided to keep any disagreement to himself. But still.

In any case, it seems to me that in his understandable zeal to defend his work, Garner has gone further than the facts warrant.

My interest is drafting contracts, not interpreting them. But to stay out of trouble when drafting contracts, it helps to have a decent grasp of how judges ascertain the meaning of contract language. So I’m happy to have the book.

He has his doubts about whether textualism is an appropriate stance with respect to interpreting contracts:

This [theorizing about interpretation] isn’t my turf, and I have no interest in wading into a debate filled with -isms. But from my seat in the bleachers, it seems that Scalia and Garner’s approach bears little relation to the world I live in. If a court has been asked to interpret a contract, that’s because it has failed to accomplish its purpose—to be clear enough that readers won’t have to fight over its meaning. Furthermore, there’s a good chance that it was put together by lawyers for whom drafting consists of regurgitating verbiage of questionable quality and relevance and tweaking it in compliance with urban legends that pass for conventional wisdom. So any “meaning that it has borne from its inception” will likely be accompanied by a good measure of incoherence.

That’s why Scalia and Garner’s canons aren’t about determining actual meaning. Instead, they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent. Using principles of construction to cut the Gordian knot of contract uncertainty might be appropriate, but it’s unhelpful to downplay the expediency involved. And why disdain alternative approaches? If review of drafts, notes, and correspondence can shed light on a contract ambiguity, that seems at least as worthwhile a way to attempt to resolve confusion as having a judge select from among alternative meanings.

This means that when you type in the URL of this site, you can omit the “.wordpress”. Or, if you prefer, you can omit the “wordpress.”. Think of all the time you’ll save!

However, if you’d rather give your fingers the additional workout, the old URL will still work.

The case is Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., and it was decided in 2010 by the U.S. Court of Appeals for the Federal Circuit, which hears all appeals in patent cases.

The legal issue is esoteric in the extreme, but the linguistic issue is quite simple, and of course it’s the linguistic issue I’m interested in. In fact, I take no position about whether the ultimate legal outcome is correct. Therefore, I won’t spend too much time sketching out the legal issue, and if you don’t understand it, don’t worry.

The case concerns the requirement that patents describe the invention:

The [patent] shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains. . . to make and use the same[.] [35 U.S.C. § 112]

The issue was whether the description must do more than simply enable a person skilled in the art to make and use the invention. Or, in patent-speak, whether there is a written-description requirement that is distinct from the “enablement” requirement.

If this is less than clear (by which I mean, “if you’re not a patent lawyer”), and if you want a better understanding of the legal issue, you can check out the court’s decision (p. 1349), this paper (especially pages 33–35), or (for more detail than you probably want) this paper.

But as I said, that’s not necessary, because the linguistic issue is set up nicely by the parties’ competing arguments about how the statute should be interpreted.

The patent-holders, who had sued Eli Lilly for infringement, were fighting against Lilly’s argument that the patent was invalid because its written description was inadequate. They argued in support of the patent that the phrase “in such full, clear, concise and exact terms. . .” modified the entire noun phrase that it followed. And they presented this interpretation visually with this representation of the statute’s grammatical structure:

The [patent] shall contain

[A] a written description

[i] of the invention, and

[ii] of the manner and process of making and using it,

[B] in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same . . .

Lilly, on the other hand, parsed the statute this way (the ellipses are Lilly’s):

(1) The [patent] shall contain a written description of the invention, and

(2) The [patent] shall contain a written description . . . of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same

So the linguistic issue is which of these two interpretations is correct.

The court of appeals agreed with Lilly (the ellipses are the court’s):

The prepositional phrase “in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the same” modifies only “the written description . . . of the manner and process of making and using [the invention],” as Lilly argues, without violating the rules of grammar.

That conclusion, it seems to me, is absurd. I don’t think the statute can reasonably be read that way.

You may have noticed that in Lilly’s representation of its preferred interpretation, which the court agreed with, the phrase the patent shall contain a written description appears twice, while in the statute it appears only once:

The actual statutory language

The [patent] shall contain a written description of the invention, and of the manner and process of making and using it

Lilly’s interpretation (with the repeated language underlined)

The [patent] shall contain a written description of the invention, and the patent shall contain a written description of the manner and process of making and using it

Literally inserting additional language into a statute in the guise of interpreting it is usually frowned on. So the only way the court’s move here is kosher, it seems to me, is if it merely clarifies what the statute’s actual language means, by making explicit what was previously implicit.

Now, it happens that there are in fact situations in which words can be added into a sentence, as Lilly did here, without changing the sentence’s meaning. I am talking about the phenomenon of ELLIPSIS:

Someone gave me this book, but I don’t remember who.
= Someone gave me this book, but I don’t remember who gave me this book.

Sam made the guacamole and Bob, the salsa.
= Sam made the guacamole and Bob made the salsa.

I’ll wash the dishes and you stack.
= I’ll wash the dishes and you stack the dishes.

The question, then, is whether can the court’s insertion of additional language can be justified on the theory that the actual statutory language represents an example of ellipsis. I think it’s pretty clear that it cannot.

I say that for three reasons. First, it’s implausible to think that someone reading the statute without any preconceptions would understand it to mean what the court said it means. Second, the addition of the language inserted by the court demonstrably changes what the text means. And third, assuming it’s appropriate to treat the statute as involving ellipsis, the question of exactly what material was elided (and therefore has to be inserted) can be answered in more than one way—and each possible answer has a different effect on the statute’s meaning.

An unnatural interpretation

In elliptical constructions, it’s usually pretty obvious that there’s a gap that needs to be mentally filled in. In some cases, an essential grammatical constituent is missing:

Sam made the guacamole and Bob ____ the salsa. [missing verb]

Here the only way to make any sense at all out of Bob the salsa is to mentally fill in the verb.

In other cases, the phrase in which the ellipsis site occurs may be grammatical, but it’s semantically incomplete. For example, suppose someone says to you I don’t remember who. If there’s no relevant context, your response is likely to be something like, “You don’t remember who what?” Much the same is true if someone says (in the absence of relevant context), You stack. Stack what?

Constructions like these create an expectation that there is more to come. Sometimes those expectations are satisfied explicitly: I’ll wash the dishes and you stack the chairs. Someone gave me this book, but I don’t remember who I lent it to after I got it. It’s only when the expectations aren’t satisfied explicitly that it’s necessary to fill in the gap based on the context.

However, the statute here doesn’t present a case of unmet expectations; there is no apparent gap that needs to be filled in. Think about it. You start reading the statute, and as you take in each word in sequence, you are building up an understanding of what it means.

The patent
The patent shall contain
The patent shall contain a written description
The patent shall contain a written description of the invention
The patent shall contain a written description of the invention and
The patent shall contain a written description of the invention and of
The patent shall contain a written description of the invention and of the manner…

The crucial point in this sequence is immediately after the and, because that’s the point at which, under the court’s interpretation, you’d have to mentally supply the words the patent shall contain a written description. But there’s no unmet expectation that would provide any reason for that to happen. The text is fully grammatical without those additional words, it makes sense without them, and it doesn’t seem incomplete without them. In fact, the additional material words would at this point seem utterly redundant, contributing nothing to text’s meaning. So the easiest thing for your brain to do is to process the prepositional phrase of the manner and process… as modifying a written description, in parallel with the phrase of the invention.

A change in meaning

The syntax of the statutory language is essentially as the patent-holder described it, which I’ll repeat here:

The [patent] shall contain

[A] a written description

[i] of the invention, and

[ii] of the manner and process of making and using it,

[B] in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same. . .

That corresponds to the following phrase structure:

Click on diagram to enlarge

That is the only plausible structure, because the prepositional phrase in such full, clear, concise, and exact terms… can only modify the noun phrase a written description… If the in-such-terms phrase is taken to modify either making and using it or the manner and process of making or using it, the result makes no sense.

Given that in such terms… modifies the noun phrase that begins, “a written description…”, there is no way that it can be interpreted to modify a written description…of the manner and process of making and using it without also modifying a written description of the invention. As I said, it can only modify the entire noun phase.

(The Supreme Court reached a similar conclusion about the scope of a modifier in Flores-Figueroa v. United States (a case in which I submitted an amicus brief). The relevant syntax there was analogous to that shown in the tree above, with the difference that the modifier there preceded the phrase that it modified, rather than following it.)

The syntax of the court’s repeated-words rewrite of the statute (and therefore its meaning) differs significantly that of the unaltered statute. It is represented by this tree diagram:

Click on diagram to enlarge

With this structure, the in-such-terms phrase modifies only the phrase a written description of the manner and process of making and using it, because the phrase a written description of the invention is in a separate sentence (albeit the two sentences are combined into a larger compound sentence).

Thus, the court’s insertion of language into the statute cannot be justified as merely making explicit what the statutory language meant all along. On the contrary, the addition results in a different syntactic structure, which in turn results in a different meaning.

Alternative answers to the question of what was elided

Let’s assume that despite what I’ve said so far, you’re going to treat the statutory language as an involving ellipsis and add back the elided material. You then have to face the problem of deciding exactly what material was elided and has to be added back—and what the court did isn’t the only option.

The court saw the missing material that had to be added back as being the phrase the patent shall contain a written description. But one could just as easily conclude that the missing material was simply a written description:

The [patent] shall contain a written description of the invention, and a written description of the manner and process of making and using it

This would result in a syntactic ambiguity, because there would be two possible phrase structures. One of them is consistent with the court’s interpretation:

Click on diagram to enlarge

However, the other structure is consistent with the patent-holder’s interpretation:

Click on diagram to enlarge

There’s also a more drastic alternative, under which the court’s interpretation would be unambiguously wrong. Under this alternative, the elided material would be, not the patent shall contain a written description (or some part thereof), but the phrase in such full, clear, concise, and exact terms as to enable…:

The [patent] shall contain a written description of the invention in such full, clear, concise, and exact terms as to enable…, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains. . . to make and use the same[.]

The court didn’t address either of the possibilities I’ve just outlined, so it obviously didn’t try to explain why its reading was better than the others. And on a purely linguistic level—without taking account of questions of patent law or policy—I don’t think that any valid explanation is possible.

[Edited to correct an error in one of my examples.]