Category Archives: Statutory interpretation

Comprehension, ordinary meaning, and linguistics

In my first language-of-the-law post the other day, I talked about the fact that the words interpret and interpretation are polysemous—they can be used in multiple different ways that are related to one another: they can be used to refer both to the conscious process of deliberation that underlies legal interpretation and to the automatic and effortless cognitive processes that underlie the comprehension of utterances and texts. And I said that although it’s not unusual to use those word in both ways, in the context of discussing legal interpretation the can be to obscure the fact that the processes differ. As a result, I prefer to use interpret and its derivatives only with respect to legal interpretation, and to use the words comprehend and comprehension to refer to the cognitive processes by which utterances and texts are understood.

It occurred to me that this would provide a good lead for me to discuss some of the assumptions that underlie my efforts to apply linguistics to legal interpretation. I’m going to do that now, and I’m going to do it by drawing on (and adapting) something that I wrote as part of a book proposal.

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The rule of the last antecedent is REALLY old [updated]

As I’ve said previously, the rule of the last antecedent is derived from the Latin maxim ad proximum antecedens fiat relatio nisi impediat sententia (“Let reference be to the nearest antecedent, unless the meaning hinders”). When I last discussed that maxim, I said that it had appeared in English case reports at least as long ago as the early 1600s.

I’ve now traced the maxim back another 200 years, more or less, to a case report from 1431. Or should I say, 14FUCKING31, if you’ll pardon my Law French.

Here is a link to an image of the page, and here is a link to an English-language summary — scroll down to “Language Notes” and it’s the next line. And here is an image of the page where the maxim is cited:

year-book-1431

The maxim appears at lines 7-8.

To put the date in perspective, this predates Gutenberg’s Bible. And surely this was not the first use of the maxim; for all we know, it may have originated hundreds of years earlier — possibly in Roman law or Biblical scholarship. Unfortunately, I’m not optimistic about the possibility of finding earlier uses, since they would by definition exist only in manuscript form.

As for the provenance of the case report in which the maxim appears: It is part of the Year Books, which were England’s earliest law reports:

The Year Books are the law reports of medieval England. The earliest examples date from about 1268, and the last in the printed series are for the year 1535. The Year Books are our principal source materials for the development of legal doctrines, concepts, and methods from 1290 to 1535, a period during which the common law developed into recognizable form. More than 22,000 individual reports or ‘pleas’ have been printed, and others remain in manuscript. This database indexes all year book reports printed in the chronological series for all years between 1268 and 1535, and many of the year book reports printed only in alphabetical abridgements. Of these reports, all 6,901 from 1399 through 1535 have been fully indexed and paraphrased in this database. [Link.]

The image above is taken from the Vulgate edition of the Year Books, which according to Wikipedia “appeared in a series of volumes between 1678 and 1680, and which became the standard edition consulted by practising lawyers.”

h/t to Prof. David Seipp of the Boston University School of Law, for the database whence this small piece of the Middle Ages found its way to the 21st century.

More on the dueling canons

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.

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Coming to SCOTUS: Battle of the dueling interpretive canons. [Updated]

THE CANONS OF LEGAL INTERPRETATION are pithy sayings setting out various ways in which statutes should or should not be interpreted:

Every word in a statute should be given effect.
Expressio unius est exclusion alterius (the expression of one thing suggests the exclusion of others).
Ejusdem generis (interpret a general term to reflect the class of objects reflected in more specific terms accompanying it).
Statutes should be presumed not to apply extraterritorially.
and so forth.

Karl Llewellyn, a prominent mid-20th century legal scholar, famously said that “there are two opposing canons on almost every point.” On November 3, the Supreme Court will hear argument in Lockhart v. United States, a case that presents about as stark a clash between opposing canons as you could ever hope to find.

Lockhart is of interest to us here at LAWnLinguistics because the canons at issue are among the small group of “linguistic canons”—those that deal with language-related issues. In particular, they deal with resolving ambiguities that arise as a result of the statutory language having more than one plausible syntactic structure. I dealt at some length with the general issue of syntactic ambiguity, and with the specific canons that are now at issue in Lockhart, in my multipart look at Reading Law: The Interpretation of Legal Texts, by Supreme Court Justice Antonin Scalia and legal-writing guru Bryan Garner. (Of my previous posts about the book the ones most relevant here are Syntactic ambiguity, Three syntactic canons, On Garner on Posner on Scalia & Garner, and Last antecedents, series qualifiers, and psycholinguistics.)

In those posts (particularly the last three) I criticized several aspects of how Reading Law treated the canons that are now at issue in Lockhart. And those some of those criticisms, as well as others that have occurred to me as I’ve thought about Lockhart, are pertinent to the legal issues in the case. And more broadly, as I’ve continued to think about Reading Law’s handling of the syntactic canons, I’ve come to believe that the framework established by Reading Law is not merely problematic, but deeply flawed. And as it turns out, Lockhart provides a good lens through which those flaws can be examined.

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But I did it, though, because he lied / Because he took you for a ride / And because time was on his side / And because I…

IWantYouBobDylanI filed another amicus brief in the Supreme Court last week that I regard as an example of using linguistics in legal argument. Although the brief contains no discussion of linguistics, it was enabled by the fact that I have learned, to a certain extent, how to think like a linguist.

The case is University of Texas Southwestern Medical Center v. Nassar, and it deals with employment discrimination. The linguistic issue that the brief deals with is the interpretation of prohibitions against discrimination “because of [the employee’s] age” or “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the adverse action? Or is it enough for the plaintiff to prove that the prohibited factor was one of several motivations for the action, any one of which would have been sufficient on its own?

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Always speaking?

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.

Last antecedents, series qualifiers, and psycholinguistics

In my post Three syntactic canons, I discussed the three canons of interpretation in Scalia and Garner’s Reading Law that deal with syntactic ambiguities:

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.

At the end of the post, I raised the question whether the preferences stated in these canons can be justified on purely linguistic grounds—i.e., whether they represent “valid generalization[s] about how expressions in English are understood[.]” I’m going to try to answer that question here.

This post is a long one, so let me say up front that the verdict on these canons is a mixed one. The good news is that in some categories of cases where these canons apply, there is in fact a linguistic justification for applying them, by which I mean that in those applications the canons more or less parallel one of the recognized tendencies in how people process and comprehend sentences. (The same parallel applies to the rule of the last antecedent as it’s generally applied by the courts, which differs somewhat from the Scalia–Garner version).

Now the bad news. First, the processing tendency that I’ve referred to is just one of the factors that  influences how a given sentence is understood, and other factors can exert an influence in a different direction. So even in cases where the canons are consistent with this processing tendency, it’s hard to say in advance whether applying the canons would result in a linguistically justified interpretation.

Second, in the canons’ other applications, I don’t think there is the same parallel between the canons and the kinds of processing tendencies that I’ve referred to above. And more than that, in a large subset of those applications, the canons are actually inconsistent with what the literature on processing tendencies would predict. In those applications, therefore, there is reason to think that applying the canons would result in interpretations that are linguistically unjustified.

On to the details.

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