After further thought about my dueling-canons post, I have a few additional points that I need make. And also a special offer for law-review staff members.
First, I have to make a correction. I spoke too broadly when I said that Reading Law didn’t cite anything in the prior caselaw to show that there existed such a thing as the Series-Qualifier Canon. The book does cite cases stating that when an adjective appears before a series of nouns, it is generally understood to modify all the items. It also cites cases that can be read to state an analogous proposition with respect to adverbs and verbs. And it cites cases that reach results consistent with those propositions, but without making any broad generalizations. So I shouldn’t have said there was no support in the caselaw for the Series-Qualifier Canon as it relates to modifiers that precede the items they modify.
However, the situation is different as to modifiers that follow the items they modify. In the cases that are cited that involved such constructions, the decision was based narrowly on the specifics of the particular statute, not on general statements about how such constructions are generally understood. In fact two of the cases cited the Rule of the Last Antecedent, but interpreted the modifier as having a wider scope based on other factors—as the Rule recognizes is possible. So not only do those cases not support the Series-Qualifier Canon with respect to postmodification, but they provide further evidence that the carve-out from the Nearest-Reasonable-Referent Canon is not justified by the caselaw.
Which brings up a question. We’ve established that there are statutes that fall within the scope of both the Series-Qualifier Canon and the Rule of the Last Antecedent. Am I correct in thinking that most decisions that have involved such statutes have invoked the latter rather than the former? With the Rule of the Last Antecedent having been cited more than ten times as often as the Series-Qualifier’s progenitor, the across-the-board rule, the odds are in my favor. But it would be simple (though a lot of work) to find a more reliable answer.
So if anyone reading this is a law-review member looking for a topic for their note or comment, your search may be over. This is a topic that’s either timely or timeless, and possibly both. And while it may not exhibit the philosophical profundity that is valued these days in the legal academy (face it, The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria this ain’t), I can pretty much guarantee you a citation on the world’s leading blog that’s not about the linguistics of lawns.
Contact me if you’re interested, and I’ll be glad to consult with you (if you’d like and your editors allow it).
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Next, I want to clarify something about the ambiguity in two of the canons that I discussed: the question whether the reference in the Series-Qualifier and Nearest-Reasonable-Referent Canons to “nouns or verbs” should be understood to mean “noun phrases or verb phrases.” This ambiguity appears in what lawyers would call the “blackletter” text of the canons—the sentence that appears in boldface type under the name of the canon, and that is followed by a few pages of commentary and examples. The ambiguity seems to be cleared up by the examples, some of which consist of more than just unmodified nouns or verbs.
In the commentary on the Series-Qualifier Canon, the following provisions, among others, are offered to illustrate the scope of the canon:
A statute prohibiting the carrying of concealed weapons by “jail wardens, or their deputies, policemen or other duly appointed law enforcement officers, or to members of the Army, Navy, or Marine Corps of the United States or of the National Guard or Organized Reserves when on duty.”
An insurance-policy provision stating that the policy covered claims alleging “any infringement of copyright or improper or unlawful use of slogans in [the policyholder’s] advertising.”
These provisions include noun phrases consisting of nouns combined with modifiers or complements:
other duly appointed law enforcement officers
members of the Army, Navy, or Marine Corps of the United States or of the National Guard or Organized Reserves
infringement of copyright
improper or unlawful use of slogans
Presumably we can infer from this that the ambiguity can be resolved in favor of the broad reading that I said was the only reasonable interpretation. That’s good to see, but it’s hardly something that jumps out at you when you read the commentary, especially given that the issue isn’t flagged. And who’s to say that everyone who reads the canon is going to read the commentary. So I’m not going to change my ruling that the canons are ambiguous.
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In the comments on the dueling-canons post, Justin argues that what I’ve referred to as the across-the-board rule, which comes from Porto Rico Railway, Light & Power Co. v. Mor, is not as circular as I said it was. If you’re interested in that issue, take a look at his comment and at my response to it.
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Finally, another commenter, Tex Duncan, argues that as a result of statutory language that my post didn’t address, the defendant’s interpretation of the statute is the only reasonable one. He may well be right, and at a minimum his argument (which I don’t think was raised by the defendant) provides another reason to think that the statute is ambiguous and therefore possibly subject to the Rule of Lenity.
My post didn’t address the ultimate issue of how the Lockhart case should be decided, both because that’s a question that is affected by nonlinguistic issues such as the statute’s purpose and because for purposes of my post, Lockhart was really just a vehicle for examining the Rule of the Last Antecedent and the related canons in Reading Law.