I thought I’d take a break from talking about Reading Law, and instead discuss a case that will be of interest to patent lawyers and to aficionados of interpretations that are breathtakingly bad. Actually, most of the patent lawyers probably know about the case already, although they don’t necessarily know about the decision’s breathtaking badness.
Included in Reading Law’s list of 57 canons of interpretation are seven that are described as “syntactic canons.” Of these, three are the most important:
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.
In this post I’m first going to look at these canons fit in with the existing law and then at whether they hang together as a coherent set of principles. And since the post is a long one, here’s the executive summary: First, the canons as formulated in Reading Law differ from the existing law in some important ways. Second, they don’t hang together as a coherent set of principles.
One of the recurring problems in interpreting statutes and other texts is that of syntactic (i.e., grammatical) ambiguity. Reading Law sets out three canons of interpretation that are intended to deal with this problem: the Last-Antecedent Canon, the Series-Qualifier Canon, and the Nearest-Reasonable Referent Canon. I’m going to take a look at these canons, but I think that it would be helpful if I first say a few words about syntactic ambiguity and how to analyze it.
For most people who consult Scalia and Garner’s new book on statutory interpretation (I say “consult” because few people are going to read it straight through), Bryan Garner’s name on the cover will lend additional credibility to the book’s discussion of grammar and linguistic meaning. After all, he’s the Guru of Writing and Language. But to what extent is his background and expertise actually relevant to the process of interpreting a text whose meaning is disputed? My answer to that question is, less than you might think.
Let me start by focusing here on the relevance of Garner’s grammar-related work to the kinds of grammatical issues that come up in interpreting statutes; I’ll save for a later post my examination of his work as a lexicographer and how that relates to resolving disputes over word meaning.
Most of Garner’s work is devoted to giving advice about how to write, and most of it deals with topics such as these, which are irrelevant to statutory interpretation:
While I’m a participant in courtroom discourse, this is an area of linguistics that I haven’t focused on, and I don’t know much about it. However, I recently came across some raw data that might be of interest to those in the field. I’m making it available here in the interest of science.
The data in question consists of the transcript from a criminal proceeding in Australia, excerpts from which are set out below. Please note that a certain amount of stage-setting will be necessary, before we get to the relevant discourse segment, but patience will be rewarded.