Prescriptivist statutory interpretation?

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The title of this post combines two topics that are popular with the Language Log audience, and that are not usually discussed together. It is also the title of a LAWnLinguistics post from 2012, shortly after the publication of Reading Law, a book about legal interpretation that was co-authored by Justice Scalia and Bryan Garner. It was one of a series of posts that I did about the book—a series of which the last installment has not yet been written.

The post was about whether prescriptivism has any role to play in statutory interpretation (no inside jokes in this title, I'm afraid), and it occurs to me that since many people here will be interested in the topic, it might be a good idea to bring the post back for a return engagement in a larger venue. And because the topic is one that I recently returned to at LAWnLing, I'm going to include the relevant part of that post as well.


Prescriptivist statutory interpretation? (Part 2 of Scalia and Garner on Statutory Interpretation) [link]
[with some minor changes and updates]

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. [Update: That examination remains in a state of being saved for a later post.]

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:

  • Spelling: marshmallow, not *marshmellow; interpolate, not *interpellate. (The asterisks mark the example as being disapproved.)
  • Capitalization: Internet, not *internet.
  • Avoiding nonstandard usages (most of which Garner would categorize as mistakes rather than merely variants): Bryan and I went to the store, not *Bryan and me…; replace A with B, not *substitute A with B.
  • Avoiding standard usages that "sticklers" don't like: don't use hopefully as an evaluative adverb, as in *Hopefully it won't rain; don't start a sentence with however (in the sense of "but").
  • Word choice: affect versus effect; precipitous versus precipitate.
  • Writing style: prefer the active voice; "the punch word in a sentence should come at the end."

Once this irrelevant stuff is set aside, what's left is something of a grab-bag of issues, none of which are dealt with systematically or in detail. (Or at least, not as far as I can tell; I haven't tried to read all 876 pages of Garner's Modern American Usage.) This is to a large extent a result of where Garner's interests lie and what he is trying to do. He doesn't claim to have written a complete grammar of the English language.

More important, the perspective from which Garner comes at language issues is the opposite of the perspective from which statutes and other texts are interpreted. As an advice-giver, Garner deals with language from the writer's perspective, while interpretation proceeds from the reader's perspective. Garner deals with the process of converting the writer's intended meaning into a text, and the substance of that meaning—i.e., what the writer wants to say—is taken as a given. Interpretation, on the other hand, starts with the text as a given and is concerned with extracting meaning from it.

So advice about how to write doesn't necessarily give insight into how to interpret. This is in a sense the converse of David Hume's argument that it's inappropriate to derive an "ought" from an "is"—i.e., that a normative claim (meaning a claim about what ought to be) cannot be derived from a purely descriptive statement about what B  is. In other words, you shouldn't rely on statements about what writers ought to do, if you're trying to figure out what they actually did.

Interestingly, Garner seems to recognize this, at least to some extent. Despite his position on the that-versus-which controversy (use that, not which, in restrictive relative clauses) he says that this "grammatical convention" is "unfortunately a weak basis for deciding statutory meaning." Why? Because "while grammarians have sought heroically to establish this as a firm rule, they have been unsuccessful." (p. 142.) Therefore, one cannot assume that a which-relative is intended to be restrictive.

But that's only part of the problem. Relying on usage advice as a guide to interpretation can lead to disastrously wrong conclusions. Arnold Zwicky discussed an example of this on Language Log:

In my mail on 27 May, from Neal Goldfarb…, a pointer to a most remarkable (and disturbing) claim in a 2003 Supreme Court Review article (Of "This" and "That" in Lawrence v Texas, 55 Sup. Ct. Rev. 75) by Mary Ann Case. Examining the following sentence from the Court's October 2002 decision invalidating Texas's anti-sodomy law—

(1) The Texas statute furthers no legitimate state interest which can justify its intrusions into the personal and private life of the individual.

Case maintains that it is ambiguous as to whether the relative clause in which is restrictive or non-restrictive. That is, she maintains that (1) has an interpretation as in

(2) The Texas statute furthers no legitimate state interest, which can justify its intrusions into the personal and private life of the individual.

which, according to her, entails

(3) The Texas statute furthers no legitimate state interest.

She appeals to the authority of "strict grammarians" (citing, yes, Fowler), maintaining that "a classically trained grammarian" would in fact say that [sentence] (1) was interpreted as in (2). It's that pesky That Rule again, last discussed in Language Log here.

Case is "blinded by the rules", applying something she was presumably once taught, rather than using her own knowledge of the language. Sentence (1) is not ambiguous in the relevant respect; it has only a restrictive interpretation. Indeed, the purported paraphrase in (2) is ungrammatical, for reasons that are well understood. Case has been smokin' way too much Fowler.

[T]he grammatical point is perfectly clear: which is entirely acceptable in restrictive relatives, so that (1), punctuated as above, is understood as having a restrictive relative. In fact, a non-restrictive interpretation isn't possible at all; (2) is simply ungrammatical, because the NP no legitimate state interest isn't referential. The point is an old one. It's explicit in The Cambridge Grammar of the English Language (p. 1060):

Expressions consisting of no, any or every morphologically compounded with -one, -body or -thing, or syntactically combined with a head noun, have non-referential interpretations and cannot serve as antecedent of a [non-restrictive] relative, but they can be followed by [restrictive] relatives.

CGEL gives this rule (contrasting *No candidate, who scored 40% or more, was ever failed with the grammatical No candidate who scored 40% or more was ever failed), but not, of course the That Rule, since the That Rule "is not descriptive of actual usage" and so "had no place in a descriptive grammar" (as [Rodney] Huddleston [the principal author of CGEL] put it in e-mail on 28 May).

Having said all this, I'm sad to have to tell you that usage-advice books are cited by courts fairly routinely as guides to interpreting statutes, patents, and other texts. Garner's work has been cited, as has Strunk & White. (That noise you hear is Geoff Pullum's head exploding.)


From #GorsuchDictionaries: Into the lexicographic weeds [link]
[Background: #GorsuchDictionaries is about a recent Supreme Court decision, Artis v. District of Columbia (pdf), and it deals in particular with the dissenting opinion by Justice Gorsuch. Although the statute at issue was enacted in 1990, the dissent cited the second edition of Webster's New International Dictionary (W2), which had been published almost 60 years earlier, in 1934.   ¶   The excerpt that follows is from the end of the post, and reflects some minor changes.]

And that brings us, finally, to Justice Gorsuch's decision to cite W2, from 1934, rather than W3, from 1961. What's up with that?

It has nothing to do with how the case was briefed; the only citation to either dictionary was in the respondent's brief, which cited W3. And the two definitions are quite similar: "[t]o take away; to vacate; to annul" versus "to take away : make null : REMOVE ‹⁓ the statute of limitations›." If anything, W3's definition would provide more support than W2's for the argument that the statute was ambiguous, because it specifically mentioned statutes of limitations. So why would he cite the older dictionary?

The only explanation I can think of is that Justice Gorsuch shares Justice Scalia's irrational aversion to W3.

If you know about the controversy over W3, you can probably figure out what led Scalia to have such an aversion, and Gorsuch (I assume) to share it. But for those who are unfamiliar with the controversy, here is Geoff Nunberg to start filling you in:

At 2,700 pages and almost 14 pounds, Webster's Third was a literally weighty work, the product of over 700 editor-years of effort, the publisher boasted. But it was widely denounced for what critics viewed as a lax admissions policy: it opened its columns to parvenus like "litterbug" and "wise up," declined to condemn "ain't," and illustrated its definitions with quotations from down-market sources like Ethel Merman and Betty Grable. That was reason enough for The Times to charge that Merriam had "surrendered to the permissive school" and that the dictionary's "say as you go" approach would surely accelerate the deterioration already apparent in the language. In The New Yorker, Dwight Macdonald wrote that the editors had "made a sop of the solid structure of English," and in an Atlantic article called "Sabotage in Springfield," Wilson Follett called the Third a "fighting document" that was "out to destroy . . . every obstinate vestige of linguistic punctilio, every surviving influence that makes for the upholding of standards." (The dereliction that most appalled Follett was the Third's refusal to reject "that darling of the advanced libertarians," the use of "like" as a conjunction.)

(More information is available here, and, in much more detail, here.)

Scalia was very much on the side of the condemnors. He expressed his disapproval in his opinion for the Court in MCI v. AT&T (more information available here and here), and  during oral argument in Taniguchi v. Kan Pacific Saipan, Ltd.:

JUSTICE SCALIA:  Webster's Third, as I recall, is the dictionary that defines "imply" to mean "infer"—

MR. FRIED: It does, Your Honor.

JUSTICE SCALIA:  —and "infer" to mean "imply."

It's not a very good dictionary.

(Laughter.)

Even if one shares the view that of W3's entries were sometimes wildly permissive (which I think is at best an oversimplification) it is hard to justify preferring W2 even in cases, such as Artis,  where the definition in question is unobjectionable and the statute in question was enacted after W3. In such situations, the more recent edition is always preferable, all else  being equal. The only possible explanation I can think of for citing W2 rather than W3 is that doing so is a way of signaling that one holds a attitude toward usage that is seen by some as virtuous—that one is a linguistic "stalwart," a stickler, a snoot. And while engaging in that kind of signaling may be fine in some contexts, it seems unwise to do so if the result is to weaken the legal analysis you are trying to advance.

Scalia's (and apparently Gorsuch's) objection to citing W3 is also misguided as a matter of interpretive theory. Statutory interpretation requires judges to determine how the statutory language is likely to be understood by ordinary speakers of English, and that in turn requires judges to be sensitive to how the words in the statute are actually used by such speakers. Even Bryan Garner acknowledges that word meanings arise from the way words are actually used (and that W3 is a good dictionary, albeit one that he thinks should be used cautiously because its usage notes are, he believes, inadequate). It is an undeniable fact that there is variation in how some words are used. Some people use infer to mean essentially the same thing as imply; for them, that is an appropriate use of the word, even though many other people see it as an error. Successful communication requires that interpreters take the speaker's (or text's) usage as they find it—even if they regard that usage as incorrect.



9 Comments

  1. Philip Taylor said,

    March 3, 2018 @ 8:01 pm

    The link to ETfinalProof appears dysfunctional, but checking back in the Way Back Machine and comparing the results with Prof. Pullum's publications list suggests that it (or something very similar) may now be found at http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf

    [NG: Thanks. It's fixed now.]

    [GKP: Thanks for the research, Philip. The link as now given goes not to the proofs but to a reformatted version with one or two small typos corrected (8-pages, A4-paper). There's also a browsable HTML version now.]

    [NG: I'm glad to see that your head didn't explode after all. Or that if it did, you were able to get it fixed.]

    [NG again: Geoff, sorry for deleting the font color from your comment. I tried to fix it—without success, unfortunately, but at least I didn't fuck it up even worse.]

  2. Jerry Friedman said,

    March 3, 2018 @ 8:06 pm

    There might be another reason Gorsuch used Webster's Second: the "zombie reason", namely, he might think that others will disapprove of Webster's Third.

    By the way, I trust Garner points out that "interpellate" is an English word, though a rare one, used in both politics and philosophy.

  3. tangent said,

    March 3, 2018 @ 9:57 pm

    Ostentatiously using W2 is virtue signaling.

  4. Geoffrey K. Pullum said,

    March 4, 2018 @ 11:30 am

    I think Mary Ann Case's wildly false claim that The Texas statute furthers no legitimate state interest which can justify its intrusions into the personal and private life of the individual entails The Texas statute furthers no legitimate state interest is perhaps the single most frightening instance of potential real-world consequences of prescriptive poppycock that I have ever seen.

    [NG: In fairness to her, she wasn't asserting that claim, she was stating what she understood Justice Kennedy to be saying, with that understanding being distorted by her mindless acceptance of said poppycock.]

  5. Jonathan D said,

    March 4, 2018 @ 5:35 pm

    In the High Court of Australia, we had:

    CALLINAN J: Do we have any from a prescriptive dictionary, as opposed to a descriptive dictionary like Macquarie?

    MRS BENNETT: These are the only ones we have brought with us, your Honour.

    CALLINAN J: I would like to see what the Oxford said myself.

  6. Richard Hershberger said,

    March 4, 2018 @ 6:11 pm

    "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."

    The irony is that his "guru" status was in part originally propped up by his experience editing Black's Law Dictionary. This was taken as giving him standing to comment on English usage. This sort of makes sense so long as you don't actually think about it. What does editing a dictionary of the specialized vocabulary used within a specific field have to do with English usage in general?

  7. Neal Goldfarb said,

    March 4, 2018 @ 9:51 pm

    @Richard Hershberger:

    The irony is that his "guru" status was in part originally propped up by his experience editing Black's Law Dictionary. This was taken as giving him standing to comment on English usage. This sort of makes sense so long as you don't actually think about it. What does editing a dictionary of the specialized vocabulary used within a specific field have to do with English usage in general?

    I'm afraid you're mistaken about the sequence. Garner's first book was his dictionary of legal usage (1987), which was very much of a piece with his later general usage guides in terms of its overall approach. In fact, some entries from the legal usage book were adapted and incorporated into the general book. And more significantly, it contained a lot of general usage & writing advice.

    So the Dictionary of Modern American Usage was very much an outgrowth of the Legal Usage book. The first edition of DMAU came out in 1998; which was the year before the publication of the first edition of Black's that he edited (the 7th). And Garner's status as a legal-writing guru was well established before either of these books was published.

    Given all of this, while Garner's reputation is obviously boosted by the fact that he edits Black's, I think that it's really based on his general usage advice.

  8. Evelyn U said,

    March 4, 2018 @ 11:04 pm

    Using W2 indicates that you think dictionaries are (or should be) like the Bible—revealed and unchanging Truth. And that the law (the Constitution ) should also work this way

  9. Richard Hershberger said,

    March 5, 2018 @ 5:55 am

    @Neal Goldfarb: Thanks for the correction. I first became aware of Garner at about the time the first edition of DMAU came out. He was blurbed as the editor of Black's, and I took that as having been his previous gig. Clearly I jumped to that conclusion incorrectly.

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