A few weeks ago on Language Log, Mark Liberman’s post “Lawyers as linguists” alerted me to Facebook v. Duguid, a case now pending before the Supreme Court, which grabbed my attention for several reasons. First, the case presents an interesting linguistic issue. Second, the parties on both sides have framed their linguistic arguments in terms of three of the canons of interpretation in Reading Law: The Interpretation of Legal Texts (2012) the book coauthored Bryan Garner and the late Justice Antonin Scalia, and I’ve previously criticized the canons at issue (e.g., here). Finally, Garner himself is on the legal team representing the plaintiff, Noah Duguid.
An unusual confluence of circumstances.
This post will be the first of several in which I’ll discuss the relevant canons, the issues in Facebook v. Duguid, and (to some extent) the parties’ arguments. In this post, I’ll begin by providing a quick introduction to the canons in question, the legal context in which the linguistic issue arises, and the linguistic issue itself. The next few posts will deal with the canons, and I’ll conclude with a post or two giving my take on the case and commenting on some of the arguments that the parties made.
“CANONS” OF INTERPRETATION are essentially rules of thumb that are intended to guide judges in dealing with issues of legal interpretation. Such canons (originally referred to as “maxims”) have been part of Anglo-American law for centuries, and the core of Reading Law consists of 57 such canons, all of which are described as reflecting well established law. But that description is inaccurate as to the canons that are in play in Facebook v. Duguid, all of which differ in some respect from the law as it existed when Reading Law was published.
The canons in question are the Last Antecedent Canon, the Series-Qualifier Canon, and the Nearest Reasonable Referent Canon (although only the first two are cited or discussed in the briefs by name). They are set out below, as they appear in the book, but without the accompanying commentary:
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.
I’ve previously written about these canons at LAWnLinguistics, and in those posts (collected here), I criticize the canons for several reasons. In addition to pointing out their departure from preexisting law, I said in my first post that “they don’t hang together as a coherent set of principles.” In a later post, I said that I’d come to believe “that the framework established by Reading Law is not merely problematic but deeply flawed.” That remains my conclusion, but at this point I’ll be more blunt.
The Last Antecedent Canon, the Series Qualifier Canon, and the Nearest Reasonable Referent Canon collectively add up to a confused and confusing mess. The distinctions they draw are arbitrary, and Series Qualifier and Nearest Reasonable Referent Canons are in conflict with one another: they overlap in their coverage, and within the area of overlap their interpretive prescriptions point in opposite directions.
As between the two coauthors of Reading Law, I assume that it is Garner who bears primary if not exclusive responsibility for these problems. It seems likely to me that the substance of the canons at issue, and of the book’s commentary on them, probably reflects Garner’s ideas much more than Scalia’s. After all, these canons concern grammatical issues as to which Scalia would probably have deferred to Garner’s presumed expertise. So I will proceed on the assumption that the substance of the Last Antecedent, Series Qualifier, and Nearest Reasonable Referent Canons, along with that of the accompanying commentaries, is attributable to Garner alone (with the assistance of staffers at his company, LawProse).
I’LL TURN NOW to the background of Facebook v. Duguid and of the issue the Supreme Court will be called on to decide. Warning: things will get a bit complicated.
The case began when Noah Duguid filed a class-action suit against Facebook for violating the Telephone Consumer Protection Act, a 1991 statute that regulates telemarketing. He accused Facebook of having violated the statute’s restrictions on sending texts by means of what the statute referred to as an “automatic telephone dialing system”—an “ATDS,” for short. Facebook argues that the texts about which Duguid is complaining were not sent using such a system, and at issue is how to interpret the statute’s definition of an ATDS.
That definition reads as follows:
The term “automatic telephone dialing system” means equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.
The dispute concerns the phrase using a random or sequential number generator. The specific question is whether the phrase should be understood as modifying both store…telephone numbers and produce telephone numbers (Facebook’s position) or as only produce telephone numbers (Duguid’s).
Disputes framed in this way (“which of two words or phrases does phrase X modify?”) usually call for resolving a grammatical ambiguity. For example, in the phrase infringement of copyright or unlawful use of slogans in your advertising, does in your advertising modify everything that precedes it, or just unlawful use of slogans? But the case we’re looking at, I think the disagreement, might be more appropriately seen as concerning whether there exists an ambiguity needing to be resolved.
Facebook argues that as a matter of English grammar, using a random or sequential number generator unambiguously modifies both store…telephone numbers to be called and produce telephone numbers to be called. And as I read Duguid’s argument, his only basis for disagreeing with that conclusion is the seeming incongruity of referring to storing telephone numbers using a number generator. His brief strikes me as waffling somewhat on whether he is contending that the incongruity causes the definition to have a different grammatical structure than would otherwise be the case. On the one hand he argues that “construction of a text often is governed not by the rules of syntax but by the sense of the passage” and that statutory interpretation does not turn “on grammar alone,” but on the other hand he says that “the correct grammatical reading of the definition aligns with the semantic content of the words.”
To add yet another complication, the two sides disagree about whether the apparent incongruity actually exists. As a result, the proper interpretation of the statute might well turn on factual issues having to do with the technology of generating and storing telephone numbers, a kind of situation I don’t think I’ve ever encountered before. But for the purpose of these posts, I’ll assume that the anomaly is real.
Before the case reached the Supreme Court, the specific allegations in Duguid’s complaint (which showed that the texts he received had specifically targeted at his phone number), were held to rule out any claim that the texts were the result of phone numbers that had been produced using a random or sequential number generator.
The viability of his suit therefore depends on persuading the Supreme Court that while the statute requires him to show that the texts were sent by a system capable of storing telephone numbers, he isn’t required to show that the system was capable of doing so by using a random or sequential number generator.
The case will be heard on December 8, with Garner arguing on behalf of Duguid.
Coming up next: The precursors of the Scalia/Garner Canons.
Cross-posted from Language Log.