Verb tenses | LAWnLinguistics

I have an article coming out (link) in the Canadian Journal of Linguistics, in a special issue on time and modality in legal language. The title is “Always speaking”? Interpreting the present tense in statutes. Here’s the abstract:

This article takes a critical look through the lens of linguistics at the “always-speaking” principle in law — an influential principle that is recited in materials on legislative drafting as the justification for using the present tense, adopted in many common-law jurisdictions as a principle of interpretation, and accepted as a foundation for the linguistic analysis of the use of tense in statutes. The article concludes that the principle is an inadequate basis for interpreting or analysing statutes, for at least two reasons: (i) the interpretive results that the principle is intended to support are explainable in terms of widely accepted principles in the analysis of tense, without any need to posit special principles that apply only to statutes; and (ii) the interpretations that would be required if the always-speaking principle were taken seriously would in many cases probably be regarded as unnatural by native speakers of English.

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 represent 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:

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Always speaking?

Sherley v. Sebelius: Interpreting the statute’s use of the present tense

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