Prescriptivist statutory interpretation? (Part 2 of Scalia and Garner on Statutory Interpretation)

[Part 1 here.]

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:

• Spelling: marshmallow, not *marshmellow; interpolate, not *interpellate. (The asterisks mark the example as being disapproved.)
• Capitalization: Internet, not *internet.
• Avoiding nonstandard usages (most of which Garner would categorize as mistakes rather than merely variants): Bryan and I went to the store, not *Bryan and me…; replace A with B, not *substitute A with B.
• Avoiding standard usages that “sticklers” don’t like: don’t use hopefully as an evaluative adverb, as in *Hopefully it won’t rain; don’t start a sentence with however (in the sense of “but”).
• Word choice: affect versus effect; precipitous versus precipitate.
• Writing style: prefer the active voice; “the punch word in a sentence should come at the end.”

Once this irrelevant stuff is set aside, what’s left is something of a grab-bag of issues, none of which are dealt with systematically or in detail. (Or at least, not as far as I can tell; I haven’t tried to read all 876 pages of Garner’s Modern American Usage.) This is to a large extent a result of where Garner’s interests lie and what he is trying to do. He doesn’t claim to have written a complete grammar of the English language.

More important, the perspective from which Garner comes at language issues is the opposite of the perspective from which statutes and other texts are interpreted. As an advice-giver, Garner deals with language from the writer’s perspective, while interpretation proceeds from the reader’s perspective. Garner deals with the process of converting the writer’s intended meaning into a text, and the substance of that meaning—i.e., what the writer wants to say—is taken as a given. Interpretation, on the other hand, starts with the text as a given and is concerned with extracting meaning from it.

So advice about how to write doesn’t necessarily give insight into how to interpret. This is in a sense the converse of David Hume’s argument that it’s inappropriate to derive an “ought” from an “is”—i.e., that a normative claim (meaning a claim about what ought to be) cannot be derived from a purely descriptive statement about what B  is. In other words, you shouldn’t rely on statements about what writers ought to do, if you’re trying to figure out what they actually did.

Interestingly, Garner seems to recognize this, at least to some extent. Despite his position on the that-versus-which controversy (use that, not which, in restrictive relative clauses) he says that this “grammatical convention” is “unfortunately a weak basis for deciding statutory meaning.” Why? Because “while grammarians have sought heroically to establish this as a firm rule, they have been unsuccessful.” (p. 142.) Therefore, one cannot assume that a which-relative is intended to be restrictive.

But that’s only part of the problem. Relying on usage advice as a guide to interpretation can lead to disastrously wrong conclusions. Arnold Zwicky discussed an example of this on Language Log:

In my mail on 27 May, from Neal Goldfarb…, a pointer to a most remarkable (and disturbing) claim in a 2003 Supreme Court Review article (Of “This” and “That” in Lawrence v Texas, 55 Sup. Ct. Rev. 75) by Mary Ann Case. Examining the following sentence from the Court’s October 2002 decision invalidating Texas’s anti-sodomy law—

(1) The Texas statute furthers no legitimate state interest which can justify its intrusions into the personal and private life of the individual.

Case maintains that it is ambiguous as to whether the relative clause in which is restrictive or non-restrictive. That is, she maintains that (1) has an interpretation as in

(2) The Texas statute furthers no legitimate state interest, which can justify its intrusions into the personal and private life of the individual.

which, according to her, entails

(3) The Texas statute furthers no legitimate state interest.

She appeals to the authority of “strict grammarians” (citing, yes, Fowler), maintaining that “a classically trained grammarian” would in fact say that [sentence] (1) was interpreted as in (2). It’s that pesky That Rule again, last discussed in Language Log here.

Case is “blinded by the rules”, applying something she was presumably once taught, rather than using her own knowledge of the language. Sentence (1) is not ambiguous in the relevant respect; it has only a restrictive interpretation. Indeed, the purported paraphrase in (2) is ungrammatical, for reasons that are well understood. Case has been smokin’ way too much Fowler.

…

[T]he grammatical point is perfectly clear: which is entirely acceptable in restrictive relatives, so that (1), punctuated as above, is understood as having a restrictive relative. In fact, a non-restrictive interpretation isn’t possible at all; (2) is simply ungrammatical, because the NP no legitimate state interest isn’t referential. The point is an old one. It’s explicit in The Cambridge Grammar of the English Language (p. 1060):

Expressions consisting of no, any or every morphologically compounded with -one, -body or -thing, or syntactically combined with a head noun, have non-referential interpretations and cannot serve as antecedent of a [non-restrictive] relative, but they can be followed by [restrictive] relatives.

CGEL gives this rule (contrasting *No candidate, who scored 40% or more, was ever failed with the grammatical No candidate who scored 40% or more was ever failed), but not, of course the That Rule, since the That Rule “is not descriptive of actual usage” and so “had no place in a descriptive grammar” (as [Rodney] Huddleston [the principal author of CGEL] put it in e-mail on 28 May).

Having said all this, I’m sad to have to tell you that usage-advice books are cited by courts fairly routinely as guides to interpreting statutes, patents, and other texts. Garner’s work has been cited, as has Strunk & White. (That noise you hear is Geoff Pullum’s head exploding.) More on this in a later post.

Postscript: It occurred to me after posting this, and then coming back to revise the paragraph in which I mention Hume and the is-ought issue, that there’s an obvious parallel between Hume’s argument (which concerned moral philosophy) and the approach taken by linguistic prescriptivists such as Bryan Garner. Their argument is that the fact mere that people actually say X doesn’t infer imply that X is acceptable.

I don’t know whether that’s profound or trivial.

Disclosure: I have two points of involvement in Bryan Garner’s work other than as a consumer. An excerpt from a brief I wrote appears as an example in his book The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts. In addition, as the first edition of Black’s Law Dictionary that Bryan edited was nearing completion, I was one of about two dozen people who were each given several hundred entries to proofread and to suggest revisions.