Archive for Language and the law

The five don'ts of novel coronavirus vaccination in Hainan, China

A notice issued in Wancheng, a town in Hainan Province on March 31 warning people of consequences if they refuse to take vaccines. (Screenshot via Weibo)

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The Scalia/Garner canons: Departures from established law

Previously:
Robocalls, legal interpretation, and Bryan Garner
The precursors of the Scalia/Garner canons

In my last post, I talked about the precursors of the canons from Reading Law that are the primary subject of this series of posts. As I explained there, the Last Antecedent Canon and the Nearest Reasonable Referent Canon are adapted from what is generally known as the Rule of the Last Antecedent (which you should remember not to confuse with the Last Antecedent Canon). And the Series Qualifier Canon was inspired by the pronouncement in a 1920 Supreme Court case that “that “[when] several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”

The purpose of that exercise in intellectual history was to provide the background that’s necessary in order to understand the present post, which will talk about the ways in which the three canons depart from the law as it existed before Bryan Garner and Antonin Scalia wrote Reading Law. Although those departures probably aren’t especially significant in the case of the Last Antecedent and Nearest Reasonable Referent canons (putting aside the confusion and complication they cause), the same isn’t true with respect to the Series Qualifier Canon.

As we’ll see, the default interpretation that is prescribed by the Series Qualifier Canon in a big category of cases is precisely the opposite of what would be prescribed by the Rule of the Last Antecedent. That change is, as far as I’ve been able to determine, unjustified by the caselaw (including the caselaw that was the Series Qualifier Canon’s inspiration). Nor is there any other justification I can think of.

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Conjunctivitis

Eugene Volokh writes:

A recent COVID-related decision reasons thus,

The [Kentucky Governor’s] order states: “All indoor social gatherings are limited to a maximum of (2) households and a maximum of eight (8) people.” [Exec. Order 2020-969.] What the language requires is that indoor social gatherings can only include a maximum of two households and up to eight people. The conjunctive “and” implies that the order requires both factors to be met to trigger enforcement. Thus, the rational reading of the executive order is that single families, no matter how large, are not prevented from living or dining together by this executive order.

As a purely linguistic matter, does this seem correct to you? Or would you say that “and” implies that the order requires both factors to be met to make the behavior fit within the limitation?

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Amicus, amici, whatever

Lin Wood has gotten some social-media ridicule for various aspects of a brief that he filed in support of Texas's failed attempt to get the U.S. Supreme Court to throw out four other states' votes in the 2020 presidential election ("Supreme Court Rejects Texas Suit Seeking to Subvert Election", NYT 12/11/2020). The linguistically relevant issues have to do with (grammatical) number:

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The precursors of the Scalia/Garner canons (updated)

Previously: Robocalls, legal interpretation, and Bryan Garner

All three canons that are in play in Facebook v. Duguid (the Last Antecedent, Series Qualifier, and Nearest Reasonable Referent Canons) have precursors in U.S. and English caselaw. That’s no surprise, given that all 57 canons in Reading Law are presented as being  well established in the law. But as my last post noted, each canon departs from the previous caselaw in one respect or another. And in the case of the Series Qualifier Canon, the departure is quite substantial.

To lay the groundwork necessary in order to describe those departures, this post will summarize the prior law from which the three canons deviate.

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Robocalls, legal interpretation, and Bryan Garner (the first in a series)

A few weeks ago, Mark’s post “Lawyers as linguists” alerted me to Facebook v. Duguid, a case now pending before the Supreme Court, which grabbed my attention for several reasons. First, the case presents an interesting linguistic issue. Second, the parties on both sides have framed their linguistic arguments in terms of three of the canons of interpretation in Reading Law: The Interpretation of Legal Texts (2012) the book coauthored Bryan Garner and the late Justice Antonin Scalia, and I’ve previously criticized the canons at issue (e.g., here). Finally, Garner himself is on the legal team representing the plaintiff, Noah Duguid.

An unusual confluence of circumstances.

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"Upon information and belief"

Yesterday, I learned a new bit of legal jargon: "upon information and belief". A three-judge panel of the U.S. Court of Appeals for the Third Circuit "roundly rejected the Trump campaign's appeal in its effort to challenge the election results in Pennsylvania". The opinion was written by my former colleague Stephanos Bibas, and includes this passage:

Though it alleges many conclusions, the Second Amended Complaint is light on facts. Take the nearly identical paragraphs introducing Counts One, Two, Four, and Six: “Democrats who controlled the Defendant County Election Boards engaged in a deliberate scheme of intentional and purposeful discrimination . . . by excluding Republican and Trump Campaign observers from the canvassing of the mail ballots in order to conceal their decision not to enforce [certain ballot] requirements.” Second Am. Compl. ¶¶ 167, 193, 222, 252. That is conclusory. So is the claim that, “[u]pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in Defendant Counties should not have been counted.” Id. ¶¶ 168, 194, 223, 253. “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.

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Lawyers as linguists

Alison Frankel, "Lexicographer (and Scalia co-author) joins plaintiffs’ team in Facebook TCPA case at SCOTUS", Reuters 10/20/2020:

Can a lexicographer fend off the combined forces of Facebook, the Justice Department and the entire U.S. business lobby at the U.S. Supreme Court?

What if said lexicographer is also the co-author, with Justice Antonin Scalia, of a landmark book about textualism that is cited multiple times in the other side’s briefs?

Bryan Garner – the Black’s Law Dictionary editor, legal writing consultant and, with Justice Scalia, author of Reading Law – has joined the Supreme Court team of Noah Duguid, a Montana man who sued Facebook in 2015 for violating the Telephone Consumer Protection Act. And though he’s only been working with Duguid’s other lawyers for a matter of weeks, Garner’s influence on Duguid’s just-filed merits brief is unmistakable. Who else could so boldly assert that the TCPA’s meaning depends on whether the statute’s “adverbial modifier” applies to just one or both “disjunctive verbs” with a “common object”?

Without taking anything away from the well-deserved kudos for Bryan Garner, I want to underline how odd it is to suggest that without his help, lawyers couldn't be expected to understand simple grammatical concepts like "adverbial modifier", "disjunctive verb", and "common object".

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Pointing at a deer and calling it a horse

The following graphics reflect the disgust of Hong Kong protesters over the police rewriting of the notorious attack on subway passengers by CCP orchestrated goons at the Yuen Long MTR station on July 21, 2019 (hence "721").

All of the illustrations have as their theme the set phrase (chéngyǔ 成語, often misleadingly referred to as "idioms") zhǐlùwéimǎ 指鹿為馬 ("point at a deer as a horse", i.e., "point at a deer and call it a horse"), i.e., "deliberate misrepresentation for ulterior purposes".

The Records of the Grand Historian records that [the powerful eunuch] Zhao Gao [d. 207 BC], in an attempt to control the Qin [221-206 BC] government, devised a loyalty test for court officials using a deer and horse:

Zhao Gao was contemplating treason but was afraid the other officials would not heed his commands, so he decided to test them first. He brought a deer and presented it to the Second Emperor but called it a horse. The Second Emperor laughed and said, "Is the chancellor perhaps mistaken, calling a deer a horse?" Then the emperor questioned those around him. Some remained silent, while some, hoping to ingratiate themselves with Zhao Gao, said it was a horse, and others said it was a deer. Zhao Gao secretly arranged for all those who said it was a deer to be brought before the law and had them executed instantly. Thereafter the officials were all terrified of Zhao Gao. Zhao Gao gained military power as a result of that. (tr. Watson 1993:70)

(Source)

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Who's seeking damages from whom?

Ambiguous headline:

"Chinese Citizen Files New Lawsuit Against Authorities Seeking COVID-19 Damages", by Frank Fang (August 13, 2020 Updated: August 13, 2020)

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National Security Law eclipses Hong Kong

What the people of the former British colony dread:

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"Literally" legality

Ken Stone, "OAN to Appeal Judge’s Ruling to Toss Rachel Maddow Defamation Suit", Times of San Diego 5/22/2020:

A San Diego federal judge Friday dismissed a $10 million defamation lawsuit filed by the owners and operators of San Diego-based One America News Network against MSNBC and political commentator Rachel Maddow.

Last summer, the liberal host told her viewers that the Trump-friendly conservative network “really literally is paid Russian propaganda.”

U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit with prejudice, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement,” made during a July 22, 2019, segment of her show.

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Hong Kong: language, art, and resistance

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