[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.
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.
[This is Part 4 of my look at Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan Garner. (Part 1; Part 2; Part 3.)]
Included in Reading Law’s list of 57 canons of interpretation are seven that are described as “syntactic canons.” Of these, three are the most important:
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.
In this post I’m first going to look at these canons fit in with the existing law and then at whether they hang together as a coherent set of principles. And since the post is a long one, here’s the executive summary: First, the canons as formulated in Reading Law differ from the existing law in some important ways. Second, they don’t hang together as a coherent set of principles.
Posted in Ambiguity, Bryan Garner, Canons of interpretation, Language mavens, Law, Law & linguistics, Liparota v. United States, Rule of the last antecedent, Scalia, Statutory interpretation, Syntactic
[Updated. Part 1; Part 2]
One of the recurring problems in interpreting statutes and other texts is that of syntactic (i.e., grammatical) ambiguity. Reading Law sets out three canons of interpretation that are intended to deal with this problem: the Last-Antecedent Canon, the Series-Qualifier Canon, and the Nearest-Reasonable Referent Canon. I’m going to take a look at these canons, but I think that it would be helpful if I first say a few words about syntactic ambiguity and how to analyze it.