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, belatedly, is the third installment of my discussion of the court-of-appeals decision in Sherley v. Sebelius, which reversed the lower court’s conclusion that the federal government is forbidden from funding research on human embryonic stem cells. The first two installments are here (part 1) and here (part 2); you should read them first if you haven’t done so already or if they’ve faded from your memory. (As before, I’ll note that I represent the Genetics Policy Institute as an amicus curiae in the case, supporting the government.)
One of the points of disagreement between the majority opinion and the dissent was over how to interpret the Dickey-Wicker Amendment’s use of the present tense (“research in which a human embryo or embryos are destroyed…”). The dispute arises because a line of stem cells derived from a particular embryo can be kept in existence indefinitely and as a result can provide stem cells for research that is performed many years later. For example, under the Bush-administration guidelines, federal funding was available only for research projects that used stem cells that had been derived before August 9, 2001, when the Bush policy was announced. And NIH maintains a registry of stem-cell lines that qualify for use in federally-funded research. There is therefore a good chance that an applicant seeking NIH funds will use stem cells from a preexisting cell line.
The majority rejected the plaintiff’s argument that the government may not fund research using such a preexisting line of stem cells, and in doing so the Dickey-Wicker Amendment’s use of the present tense played a big part: