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.
This, belatedly, is the third installment of my discussion of the court-of-appeals decision in Sherley v. Sebelius, which reversed the lower court’s conclusion that the federal government is forbidden from funding research on human embryonic stem cells. The first two installments are here (part 1) and here (part 2); you should read them first if you haven’t done so already or if they’ve faded from your memory. (As before, I’ll note that I represented the Genetics Policy Institute as an amicus curiae in the case, supporting the government.)
One of the points of disagreement between the majority opinion and the dissent was over how to interpret the Dickey-Wicker Amendment’s use of the present tense (“research in which a human embryo or embryos are destroyed…”). The dispute arises because a line of stem cells derived from a particular embryo can be kept in existence indefinitely and as a result can provide stem cells for research that is performed many years later. For example, under the Bush-administration guidelines, federal funding was available only for research projects that used stem cells that had been derived before August 9, 2001, when the Bush policy was announced. And NIH maintains a registry of stem-cell lines that qualify for use in federally-funded research. There is therefore a good chance that an applicant seeking NIH funds will use stem cells from a preexisting cell line.
The majority rejected the plaintiff’s argument that the government may not fund research using such a preexisting line of stem cells, and in doing so the Dickey-Wicker Amendment’s use of the present tense played a big part:
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 represented 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 recent decision in Sherley v. Sebelius—the stem-cell case—turns to a great extent on questions of textual interpretation. And the dissent in particular discusses those questions at length, and gets just about everything wrong. This is the first in what will be a series of posts discussing the textual issues and pointing out some of what I consider to be the dissent’s errors.
Two things before we begin. First, a disclosure: I represented the Genetics Policy Institute as one of the amici on the government’s side in this case, and portions of these posts will be adapted from my amicus brief. Second, a point about terminology. Although the Sherley case is often referred to as dealing simply with “stem-cell research,” it actually deals with research involving human embryonic stem-cells (hESCs). There are other types of stem cells for which research funding is not restricted. (For general background on stem cells, you can start here or here.)
Let’s start, naturally, with the statute. The Dickey-Wicker Amendment has appeared as a rider to annual appropriations bills for the Department of Health and Human Services every year since 1995. It provides:
In Sherley v. Sebelius, the stem-cell case in which I filed a brief, the court of appeals has overturned the injunction against federal funding of research on human embryonic stem cells. The decision is available here.
The decision was 2-1, and both the majority opinion and the dissent deal with a variety of language-related issues.
More later.
You’re no doubt aware by now that Apple and Microsoft have hired linguists as expert witnesses in their battle before the Patent and Trademark Office about whether Apple can trademark the expression App Store. Robert Leonard is testifying (actually, report-ifying) for Apple and Ron Butters is doing the same for Microsoft. Their reports are available here (Leonard) and here (Butters), and the electronic docket for the case, with links to the other filings, is here. (Warning: a few of the links seem to be broken.)
The issue that Leonard and Butters are opining about is whether the expression App Store is a proper name that distinctively identifies the particular location in cyberspace where one goes to get apps for one’s iPhone, as Apple contends, or whether it is a generic term for stores where one gets apps of any kind, as Microsoft argues.
I’m not going to comment here on who I think should win this fight, but I do want to make a few observation about some broader (and narrower) issues, starting with a look at how genericness (a/k/a genericity) is regarded in trademark law on the one hand and in linguistics on the other.
Michael Dorf writes that the opinion in FCC V. AT&T is “a bit too textualist for [his] taste”:
[This originally appeared on Language Log in February 2010, as a guest post.]
The United States Tax Court recently decided that payments for sex-reassignment surgery are deductible as medical expenses. Among the 15 judges, there were six separate opinions, with five of the judges dissenting. Most of the debate dealt with questions like whether Gender Identity Disorder is a “disease” (a key term in the statue) and if so whether sex-reassignment surgery, which doesn’t change the patient’s subjective sense of gender identity, constitutes a “treatment” for the disease (ditto).
Those are issues with interesting linguistic dimensions, but what I want to talk about here is a different aspect of the case: the dispute about how to interpret disjunction under negation—i.e., how to interpret expressions such as I don’t know anything about linguistics or tax law (with don’t signaling negation and or signaling disjunction).
(This post takes off from the post about Stephen Mouritsen’s article, so read that one first.)
Having complied with the suggestion above, you will recall that Judge Frank Easterbook—one of textualism’s leading theoreticians—said this:
Coming soon in the Brigham Young University Law Review: “The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning,” by Stephen Mouritsen.
Mouritsen, who is currently clerking on the Utah Supreme Court, has an MA in linguistics from BYU, with an emphasis on corpus linguistics. He studied under Mark Davies, who compiled the Corpus of Contemporary American English and the Corpus of Historical English. The appearance of his article at a time when blogospheric attention is being paid to the legal uses of corpus analysis (e.g., on at The Atlantic and on Language Log) is a nice bit of serendipity.
LAWnLinguistics 