Category Archives: Statutory interpretation

#GorsuchDictionaries: Into the lexicographic weeds (updated, and updated again)

Note: If you’re coming back to this post after having read it already, be sure to note the additional update I’ve added, which comes right after the discussion that dates the W2 definition back to 1934.

A new hashtag popped up last week, #GorsuchStyle, devoted to spoofing Justice Gorsuch’s writing style, or at least the style that is on display in the opening sentences of his dissenting opinion in  Artis v. District of Columbia (pdf): “Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”

I mention that, not because this post will be about Gorsuch’s writing style (it won’t), but because I’m not above a little clickbait-y coattail-riding. It’s not gratuitous clickbait, mind you. This post is about Gorsuch’s dissent in Artis. And it remains to be seen whether it’s effective clickbait. Part of me thinks that if your title includes the word lexicographic, maybe you’re doing clickbait wrong. On the other hand, #AppellateTwitter likes dictionaries, so maybe not.

What this post will be about is Gorsuch’s choice of which dictionaries to cite in his Artis dissent. As the title suggests, it will be heavy on lexicography, but it will also touch on what that choice says about whether Gorsuch is a snoot, like his predecessor was, and if so whether that ought to play a role in his decision about what dictionaries to cite. I also plan on doing a separate post to talk about the contrasting approaches to word meaning that are on display in Artis, both of them resonating, though in opposite ways, with what I’ve written about that subject (link, link).

Update: The second post can be found here.

As you may have gathered know if you’re familiar with some of the things I’ve written about word meaning, I’m not a big fan of the central role that dictionaries play in the way lawyers, judges, and legal scholars deal with issues of word meaning. For this post, though, I’ll put that dissatisfaction aside, and will treat the use of dictionaries as perfectly appropriate interpretive tools.

THE ISSUE of which dictionary to use is a recurring one in the academic literature about judges’ use of dictionaries. It’s usually discussed under the rubric of “dictionary shopping”—the practice of looking for the definitions that are most supportive of the result you want to reach. That practice is of course the norm for lawyers arguing cases, but it’s problematic for judges or legal scholars, who aren’t supposed to start out with a preferred outcome and then reason backward to the arguments that can support it. However, there is at least one circumstance in which selectiveness about the dictionaries that one cites can be appropriate: when the purpose of citing the dictionary is merely to show that a particular reading of the word in question is possible. And in fact that was Gorsuch’s purpose in relying on the definitions he cited; he was arguing that the statute was ambiguous.

Nevertheless, Gorsuch’s dictionary choices in Artis are subject to some significant criticisms in terms of what might be called lexicographic relevance; the definitions he relies on don’t necessarily shed much light on the meaning of the statutory language that was in dispute. And in that respect, the dissent is not the first time that judges have gone lexicographically astray.

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Responding further to Hessick on corpus linguistics (The first in a series)

Carissa Hessick has recently posted a near-final version of her forthcoming article Corpus Linguistics and the Criminal Law, which will appear in  a special issue of the B.Y.U. Law Review devoted to the papers that were presented at the law-and-corpus-linguistics conference at Brigham Young about a year ago. Like the draft that Hessick posted in September, the new version argues against the use of corpus linguistics in statutory interpretation. And although the article deals specifically with the use of corpus linguistics in criminal cases, Hessick acknowledges that some of her criticisms may apply more broadly.

I blogged about the previous draft, outlining some of my disagreements with Hessick’s position, and also offered some comments in response to her trio of posts about corpus linguistics at PrawfsBlawg (link, link, link). My disagreements apply equally to the revised version.

In this post, I’ll have some further things to say about Hessick’s portrayal of corpus linguistics as “a radical break from current interpretive theories.” The targets of that claim are Stephen Mouritsen and Utah Supreme Court Justice Lee. But as I’ll discuss, Mouritsen disputes Hessick’s reading of both his individual work and the work he and Lee have done together. (Justice Lee has so far maintained radio silence; perhaps he and Mouritsen will respond to Hessick in their forthcoming article in the Yale Law Journal [draft].) And in two or three posts that will follow this one, I’ll address some of the other aspects of Hessick’s argument. (Part 2 is here.)

HESSICK’S THESIS HASN’T CHANGED SIGNIFICANTLY between her original draft and the revised version. So the new draft, like the previous one, paints what I believe is an inaccurate picture of how corpus linguistics relates to statutory interpretation, and of the views and goals of corpus linguistics’s proponents.

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Voting rights and the language of causation

Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if  the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”

The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.

My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.

And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.

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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 exclusio 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. 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. As it turns out, Lockhart provides a good lens through which those flaws can be examined.

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