This is the second installment of my look at the recent court of appeals decision in Sherley v. Sebelius, the litigation over federal funding of research on human embryonic stem cells (hESCs). The first installment, which sets the stage, is here. And before I begin, let me repeat that I represent the Genetics Policy Institute as an amicus curiae in support of the government in the case, and that some of what I say here will be adapted from my brief.
I ended my last post by noting that one of the points of disagreement between the majority and the dissent was about whether the word research could be understood to denote a “discrete project.” The majority concluded that the word as used in the Dickey-Wicker Amendment could in fact be understood in that way—an understanding under which the focus is on the specific work for which funding is sought:
NIH funding decisions are forward-looking, requiring the NIH to “determine whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected….The definition of research is flexible enough to describe either a discrete project or an extended process, but this flexibility only reinforces our conclusion that the text is ambiguous. [paragraph break deleted]
The dissent took issue with this, describing the majority’s interpretation as a “novel” one and accusing the majority of “strain[ing] mightily” to find an ambiguity. For the dissent, the appropriate focus was, not the specific work for which a particular application sought funding, but the field of hESC research as a whole:
My colleagues rest their…analysis on the transformation of “research” into “research project” in the Amendment’s text. In other words, it reads “research” as if it were synonymous with “research project.” But “research is the overall “systematic investigation or inquiry” in a field—here hESCs—of which each project is simply a part. Webster’s Third New International Dictionary 1813 (1993) (“project” means “a definitely formulated piece of research” (emphasis added)). [citation to majority opinion omitted]
Thus, the dissent repeatedly refers to hESC research in general:
Determining whether hESC research is “research in which a human embryo or embryos re destroyed” requires determining the meaning of “research.”
The first sequence of hESC research is the derivation of stem cells from the human embryo. The derivation of stem cells destroys the embryo and therefore cannot be federally funded, as the Government concedes. I believe the succeeding sequences of hESC research are likewise banned by the Amendment because, under the plain meaning of “research,” they continue the “systematic inquiry or investigation.” [citation omitted]
The testing and evaluation sequences of hESC research cannot be performed without first conducting the research involved in deriving hESCs from the human embryo. The derivation of hESCs is, thus, the sine qua non developmental sequence on which all subsequent sequences of hESC research rest.
In these passages, the dissent is using the phrase hESC research generically. This use is an example of one of the phenomena that come under the heading of genericity: reference to a kind of thing as opposed to a particular instance of that kind. Here’s what it says in Krifka et al., “Genericity: An Introduction”:
The underlined noun phrases NPs in (1) do not denote or designate some particular potato or group of potatoes, but rather the kind Potato (Solanum tuberosum) itself. In this usage a deneric NP is an NP that does not refer to an “ordinary” individual or object, but instead refers to a kind.
(1) a. The potato was first cultivated in South America.
b. Potatoes were introduced into Ireland by the end of the 17th century.
c. The Irish economy became dependent upon the potato.
I’ve discussed genericity previously. (A linguist walks into an app store… (part 1).) As I said there, genericity isn’t a property of a word or phrase per se, but of a particular use of a word or phrase. So a word or phrase can be used generically in one context but nongenerically in another:
Water is wet (generic)
I spilled water all over the table (nongeneric)
What this means is that the Sherley dissent’s argument that its generic interpretation represents the “plain meaning” of Dickey-Wicker—i.e., is the only way that the word research can reasonably be understood—is suspect right off the bat. And when you move beyond linguistic theory and look at evidence from actual usage, you see that the argument is not just suspect, it’s wrong.
First, research is often used nongenerically. Indeed, the plaintiffs in the Sherley case used it nongenerically in their complaint:
“[Dr. Sherley’s] research focuses on improving methods for identifying adult stem cells and producing them in large numbers for therapeutic development.”
“Dr. Sherley has received funding from NIH for research aimed at developing new methods for identification and production of human adult stem cells that have the potential for human cell therapy.”
“[Dr. Dreisher’s] research has resulted in the issuance of twenty-three patents.”
In each of these examples, research is used to refer to a particular body of adult-stem-cell research, not to the entire field of adult-stem-cell research. And it’s easy to find more examples of research being used nongenerically elsewhere:
“Haidt has conducted research in which liberals and conservatives were asked to project themselves into the minds of their opponents and answer questions about their moral reasoning.” [link]
“Dan Ariely of Duke University in Durham, North Carolina, accepts the [IgNobel] Medicine Prize for research showing that expensive fake medicine works better than cheap fake medicine.” [link]
(Additional real-life examples are given in my brief.)
So how does the dissent justify its (implicit) conclusion that research can only be used generically? By invoking the dictionary:
The district court correctly looked to the dictionary definition of “research” as “diligent and systematic inquiry or investigation into a subject in order to discover or revise facts, theories, applications, etc.” Research, then, comprises a systematic inquiry or investigation. And “systematic” connotes sequenced action. XVII Oxford English Dictionary 498 (2d ed. 1989) (“systematic”: “Arranged or conducted according to a system, plan, or organized method . . . .”). The first sequence of hESC research is the derivation of stem cells from the human embryo. The derivation of stem cells destroys the embryo and therefore cannot be federally funded, as the Government concedes. I believe the succeeding sequences of hESC research are likewise banned by the Amendment because, under the plain meaning of “research,” they continue the “systematic inquiry or investigation.” [some citations omitted]
There are two problems with this line of reasoning. First, the definition that the dissent quotes doesn’t support the dissent’s conclusion. There is no reason that the work done in a particular research project can’t be described as “diligent and systematic inquiry or investigation[.]” The definition is therefore ambiguous (or more precisely, underspecified) in exactly the same way as the word it defines. And second, some dictionary definitions of research—including one from the dictionary that the district court and the dissent relied on—make it unmistakably clear that the word can be used nongenerically:
“a particular instance or piece of research” (Random House)
“2a: a studious investigation or examination…b (1): a particular investigation of such a character: a piece of research[.]” (Webster’s Third)
What the dissent does, then, is to overinterpret the definition it relies on and to overlook definitions that show its reading to be wrong.
Coming up next: interpreting the Dickey-Wicker Amendment’s use of the present tense.