Robocalls, legal interpretation, and Bryan Garner
The precursors of the Scalia/Garner canons
In my last post, I talked about the precursors of the canons from Reading Law that are the primary subject of this series of posts. As I explained there, the Last Antecedent Canon and the Nearest Reasonable Referent Canon are adapted from what is generally known as the Rule of the Last Antecedent (which you should remember not to confuse with the Last Antecedent Canon). And the Series Qualifier Canon was inspired by the pronouncement in a 1920 Supreme Court case that “that “[when] several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”
The purpose of that exercise in intellectual history was to provide the background that’s necessary in order to understand the present post, which will talk about the ways in which the three canons depart from the law as it existed before Bryan Garner and Antonin Scalia wrote Reading Law. Although those departures probably aren’t especially significant in the case of the Last Antecedent and Nearest Reasonable Referent canons (putting aside the confusion and complication they cause), the same isn’t true with respect to the Series Qualifier Canon.
As we’ll see, the default interpretation that is prescribed by the Series Qualifier Canon in a big category of cases is precisely the opposite of what would be prescribed by the Rule of the Last Antecedent. That change is, as far as I’ve been able to determine, unjustified by the caselaw (including the caselaw that was the Series Qualifier Canon’s inspiration). Nor is there any other justification I can think of.