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.
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.
[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 and 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.
[Part 1 here.]
For most people who consult Scalia and Garner’s new book on statutory interpretation (I say “consult” because few people are going to read it straight through), Bryan Garner’s name on the cover will lend additional credibility to the book’s discussion of grammar and linguistic meaning. After all, he’s the Guru of Writing and Language. But to what extent is his background and expertise actually relevant to the process of interpreting a text whose meaning is disputed? My answer to that question is, less than you might think.
Let me start by focusing here on the relevance of Garner’s grammar-related work to the kinds of grammatical issues that come up in interpreting statutes; I’ll save for a later post my examination of his work as a lexicographer and how that relates to resolving disputes over word meaning.
Most of Garner’s work is devoted to giving advice about how to write, and most of it deals with topics such as these, which are irrelevant to statutory interpretation:
A new book on statutory interpretation has just been published; it’s titled Reading Law: The Interpretation of Legal Texts and it’s by Supreme Court justice Antonin Scalia and usage guru Bryan Garner, who previously co-authored Making Your Case: The Art of Persuading Judges.
Scalia’s involvement in this new project isn’t surprising; he’s the leading proponent of “textualism” as a philosophy and method of statutory and constitutional interpretation, and he’s published a book on the subject. Garner’s participation, on the other hand, is something of a surprise. His writings had not previously given any indication that he had any special interest in statutory interpretation. Garner is most widely known as the author a usage manual (he’s actually written two: one on general usage and one legal usage). He has also written books of advice about legal writing and frequently lectures on the subject. And he is editor in chief of Black’s Law Dictionary.
It is Garner’s involvement that especially piques my interest. Like me, he is interested in language, and a significant part of the book deals with purely linguistic issues such as syntax and word meaning. But Garner comes at these issues from very different point of view than I do, the main difference being that he is generally hostile to the field of linguistics.
This is the second installment of my look at the recent court of appeals decision in Sherley v. Sebelius, the litigation over federal funding of research on human embryonic stem cells (hESCs). The first installment, which sets the stage, is here. And before I begin, let me repeat that I represent the Genetics Policy Institute as an amicus curiae in support of the government in the case, and that some of what I say here will be adapted from my brief.
I ended my last post by noting that one of the points of disagreement between the majority and the dissent was about whether the word research could be understood to denote a “discrete project.” The majority concluded that the word as used in the Dickey-Wicker Amendment could in fact be understood in that way—an understanding under which the focus is on the specific work for which funding is sought:
NIH funding decisions are forward-looking, requiring the NIH to “determine whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected….The definition of research is flexible enough to describe either a discrete project or an extended process, but this flexibility only reinforces our conclusion that the text is ambiguous. [paragraph break deleted]
The recent decision in Sherley v. Sebelius—the stem-cell case—turns to a great extent on questions of textual interpretation. And the dissent in particular discusses those questions at length, and gets just about everything wrong. This is the first in what will be a series of posts discussing the textual issues and pointing out some of what I consider to be the dissent’s errors.
Two things before we begin. First, a disclosure: I represent the Genetics Policy Institute as one of the amici on the government’s side in this case, and portions of these posts will be adapted from my amicus brief. Second, a point about terminology. Although the Sherley case is often referred to as dealing simply with “stem-cell research,” it actually deals with research involving human embryonic stem-cells. (hESCs). There are other types of stem cells for which research funding is not restricted. (For general background on stem cells, you can start here or here.)
Let’s start, naturally, with the statute. The Dickey-Wicker Amendment has appeared as a rider to annual appropriations bills for the Department of Health and Human Services every year since 1995. It provides:
That (i.e., the title of this post) was the title of an interesting-looking symposium that was held at the NYU Law School last month. I wish I’d known about it in advance; I would have gone. Papers from the symposium will be published in The Journal of Law and Liberty, in an issue due out in late summer.
For me, the most interesting parts of the symposium are the keynote address (by Richard Epstein) and the first panel (featuring Larry Solan, Peter Tiersma, and Scott Soames.)
From Professor Bainbridge:
Twelve pages of what purports to be legal and grammatical analysis follows. But Chief Justice Roberts could have summed up his opinion far more succinctly: “Because at least 5 of us say so.”