Category Archives: Statutory interpretation

The Supreme Court’s misinterpretation of the word “because”

[This post has been revised; see my note at the bottom.]

The post before this one, dealing with the dueling canons in Lockhart v. United States, was my first after a gap of more than two years. In my last post before that gap, I wrote about an amicus brief I had just filed in the Supreme Court in Nassar v. University of Texas Southwestern Medical Center. The brief dealt with the meaning of the construction because of X. Specifically, it dealt with whether that construction incorporates the notion of but-for causation as part of its meaning. My brief argued that it does not.

The Supreme Court had previously reached the opposite conclusion, in a case involving the Age Discrimination in Employment Act: Gross v. FBL Financial Services. In Nassar, the question was whether the holding in Gross should be extended to a different statute that similarly used the formulation because of X. I argued that the Court should not follow Gross because Gross had been wrong about what because means. Some might regard such an argument as quixotic; I preferred to think of it as audacious.

The core of my argument was based on real-world sentences like Example (1) (emphasis added):

(1) The Constitution abhors clas­sifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the gov­ernment places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.

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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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On Garner on Posner on Scalia & Garner

I’ve been out of the country, with intermittent internet acess, while the controversy over Judge Posner’s review of review of Scalia & Garner’s book Reading Law has been brewing, and it’s only just now that I’ve seen Bryan Garner’s response to the review.

I haven’t looked at the cases Posner discusses in his review, so I’m not going to comment on whose reading of those cases is correct. But I do want to point out an inaccuracy in Garner’s response.

Garner says that all the canons of interpretation that are discussed in the book “are well established and have been frequently applied[.]” But as I think I’ve shown in my earlier post Three Syntactic Canons, that’s not correct. Both the Series-Qualifier Canon and the Nearest-Reasonable-Referent Canon break new ground in fairly significant ways. (See the earlier post for the details.) And I’ll add here that the “rule” from which I think the Series-Qualifer Canon derives is one that courts have not cited very often.
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Judicial Howlers: Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co.

I thought I’d take a break from talking about Reading Law, and instead discuss a case that will be of interest to patent lawyers and to aficionados of interpretations that are breathtakingly bad. Actually, most of the patent lawyers probably know about the case already, although they don’t necessarily know about the decision’s breathtaking badness.

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