The precursors of the Scalia/Garner canons (updated)

« previous post | next post »

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.

I WILL DEAL first with the Last Antecedent Canon and Nearest Reasonable Referent Canon:

Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.

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.

Both of these are derived from a common-law principle generally known as the Rule of the Last Antecedent.

The Rule of the Last Antecedent has no definitive formulation. But here is a fairly representative sample, from sources that predate Reading Law:

“Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.” [Sutherland, Statutes and Statutory Construction (1891)]

“An interpretative principle by which a court determines that qualifying words or phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless the extension is necessary from the context or the spirit of the entire writing.” [Black’s Law Dictionary (7th ed. 1999, 8th ed. 2004, 9th ed. 2009; Bryan A. Garner, editor in chief)]

“A limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows[.]” [Barnhart v. Thomas (U.S. Supreme Court 2003) (from the majority opinion by Justice Scalia)]

Under all three of these statements of the Rule of the Last Antecedent, the rule covers cases in which a word or phrase modifies one or more preceding words or phrases. All three describe the rule as covering “qualifying” or “limiting” words of phrases, and the latter two specifically refer to such words as “modify[ing]” words or phrases that they follow. But only the first statement (which is also the oldest, dating from 1891) extends the rule to “relative … words and phrases” as well.

I bring this up because the distinction between modifiers and relative words will be relevant when I turn to the Scalia/Garner Last Antecedent Canon (in the next post). For now, I merely want to flag that point and to say that having read many 20th- and 21st-century cases involving the Rule of the Last Antecedent, my impression is that few if any of those cases dealt with relative words.

TO SHOW what I mean when I refer to syntactic ambiguity, and to provide an introduction to linguistic “tree diagrams” (actually upside-down trees) for those who are unfamiliar with them, I’m going to use as an example the phrase I used as an illustration in my last post: infringement of copyright or unlawful use of slogans in your advertising. (The phrase is adapted from an insurance-policy provision that was at issue in a 1990 Arizona case; the case is discussed  in Reading Law, and I’ll come back to it two posts from now).

The phrase as a whole is a noun phrase (NP), because it can serve many of the syntactic functions that traditional grammar associates with nouns. These, for example (which are grammatical despite being awkward):

Subject of sentence: Infringement of copyright or unlawful use of slogans in your advertising should be avoided.

Direct object of verb: Don’t commit infringement of copyright or unlawful use of slogans in your advertising.

The overall NP consists of two smaller noun phrases and a prepositional phrase. Let’s walk through those subparts and how they are syntactically combined.

The first NP in the overall phrase is infringement of copyright, which consisting of the noun (N) infringement and the prepositional phrase (PP) of copyright. The structure of this phrase can be represented by the following tree diagram:

If we want to streamline the diagram, we can hide the internal structure of the prepositional phrase by replacing its individual branches with a triangle:

We can do the same thing for the NP as a whole:

The other NP in the overall phrase (unlawful use of slogan) adds the adjective (Adj) unlawful before the NP use of slogans, which in turn has the same structure as infringement of copyright, thereby forming a larger NP:

And as with infringement of copyright, we can hide this larger NP’s internal structure,  either partially or completely, using triangles:

The NPs infringement of copyright and unlawful use of slogan, together with the conjunction or, can be combined into the even larger NP infringement of copyright or unlawful use of slogans:

So far, there has been no ambiguity: at each step in the process there has been only one possible interpretation and therefore only one possible syntactic structure. But once we get to the prepositional phrase at the end (which functions as a modifier), there are two possible interpretations, each of which can represented by a different syntactic structure.

One interpretation would be to understand in your advertising to modify only unlawful use of slogans, which immediately precedes it and which we can refer to as a “lower-level” NP because it appears in the bottom half of the diagram. This interpretation would be represented in the diagram by “attaching” in your advertising to the lower-level NP unlawful use of slogans:

(I’m assuming here that the PP I is understood as modifying unlawful use of slogans rather than just slogans, which would also be grammatically permissible but seems to me to be less likely.)

Under the other possible interpretation, in your advertising would be understood to modify the overall noun phrase as a whole, which would result in interpreting in your advertising to modify both of the lower-level NPs: infringement of copyright and unlawful use of slogans. That interpretation can be represented by a diagram in which in your advertising is “attached” to the top NP node:

We can therefore refer to the two interpretations as, respectively, the low-attachment and high-attachment interpretations.

Of those alternatives, the default interpretation prescribed by the Rule of the Last Antecedent amounts to a preference for low-attachment interpretations. That turns out to be important, because it means that the rule is generally congruent with what research in psycholinguistics has shown about the mental processes involved in language comprehension.

The relevant research is summed up in The Handbook of Psycholinguistics (Elsevier 2d ed. 2006): “One structural factor about which there is striking agreement among researchers is recency: People prefer to attach a new phrase to a more recent than a less recent attachment site.”

N.B.: Don’t take the idea of people “preferring” particular syntactic structures literally. The mental processes involved occur below the level of awareness, and it would probably be more accurate to describe the preference for low attachment as a statistical tendency. Nevertheless, I’ll continue to follow the convention in psycholinguistics to use speak of such tendencies as “preferences”

The recency preference (also referred to sometimes as a “locality” preference) results at least in part from the fact that cognitive processing resources such as short-term working memory are finite, so that more recent input will be more easily accessible than input that is less recent. And in dealing with written texts, recency with respect to a backward-looking modifier translates into linear proximity. Therefore, a preference for attachment sites closer to the modifier will correspond generally to a preference for low attachment.

(For further discussion, see two of my previous posts on LAWnLinguistics: “Coming to SCOTUS: Battle of the dueling interpretive canons” [2015] and Last antecedents, series qualifiers, and psycholinguistics [2012].)

A few additional points before I move on to the precursor of the Series Qualifier Canon:

First, just as default interpretation prescribed by the Rule of the Last Antecedent can be overridden in a given case due to various factors, so can the psycholinguistic recency preference. That suggests that in law and psycholinguistics alike, there are no easy answers.

And an additional complication exists in legal interpretation. The results of a study presented at last year’s Law and Corpus Linguistics Conference can be understood to raise the question whether statutes are overstocked with provisions for which a high-attachment interpretation makes more sense then a low-attachment interpretation  (Andy Hoffman, Margaret Wood, Thomas R. Lee, Jesse Egbert, and Brett Hashimoto, Linguistics and the Canons: Series Qualifier v. Rule of the Last Antecedent). If that turns out to be the case, the Rule of the Last Antecedent’s preference for low-attachment interpretations would be less defensible than it would be otherwise.

Second, although the Rule of the Last Antecedent is often described as a rule of grammar, that description is wrong. It is not a rule of grammar. So please don’t make that mistake.

I WILL TURN NOW to the Series Qualifier Canon, which I repeat here for your convenience:

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.

This canon’s precursor is the following sentence from Porto Rico Railway, Light & Power Co. v. Mor, an obscure Supreme Court decision from 1920:

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.

If you’re having trouble seeing how that statement might be a foreshadowing of the Series Qualifier Canon, don’t worry; that reaction is appropriate.

There is nothing in Reading Law suggesting that this sentence has anything to do with the Series Qualifier Canon, and all that they have in common is that both prescribe that if a  chunk of text appearing at the end of a bigger chunk of text is equally applicable to all the words in the big chunk, then the little chunk should be interpreted as applying to the  whole of the bigger chunk.

So this seems like a good time to say that when I describe the sentence from Porto Rico Railway, Light & Power. as the Series Qualifier Canon’s precursor, what I mean is that the sentence seems to have been the canon’s inspiration, not that it was the canon’s source.

The reason it occurred to me that a connection might exist is that I vaguely recalled having read the Porto Rico Railway, language in Larry Solan’s book The Language of Judges, which had discussed it as something of a counterpoint to the Rule of he Last Antecedent. When I first suggested that there was a connection, shortly after Reading Law was published, I did so tentatively. But that suggestion has now been largely confirmed by the discussion of the Series Qualifier Canon in Duguid’s brief in the Supreme Court—a discussion that was presumably written by Garner or at least with his input and approval.

According to the brief, the Series Qualifier Canon “requires not only that nouns or verbs in a series have a parallel construction, but also that the modifier be ‘applicable as much to the first and other words as to the last.’” The phrase “applicable as much to the first and other words as to the last” comes from the sentence I’ve quoted from Porto Rico Railway, and while the brief doesn’t cite that case, it does cite Paroline v. United States (2014 ), which quotes the same language and credits it to the Porto Rico Railway case.

It therefore seems reasonable to infer that Garner regards the language from Porto Rico Railway as somehow being inherent in the Series Qualifier Canon, and I take that inference as confirming my surmise about the Series Qualifier Canon’s precursor. However, I should mention that neither the Series Qualifier Canon nor Reading Law is so much as mentioned in the Paroline decision, which was rendered two years after Reading Law was published and 96 years after Porto Rico Railway was decided).

Update regarding Porto Rico Railway as the precursor of the Series Qualifier Canon: When I wrote this post, I had forgotten about another indicator of the Series Qualifier Canon's link to the Porto Rico Railway case—an indicator even stronger than the quote from Duguid's Supreme Court brief.

In 2016, Bryan Garner sent me a draft revision of three chapters of Reading Law, and asked for my comments. The draft was intended for a second edition of the book (which never came to fruition), and the revisions Garner sent me were of the chapters on the Last Antecedent Canon, the Series Qualifier Canon, and the Scope-of-the-Subparts Canon. Although there was no separate revision of the chapter for the Nearest Reasonable Referent Canon, that canon had been folded, with revisions, into the revised Last Antecedent Canon.

The purpose of the revisions to the chapters on the Last Antecedent and Series Qualifer canons was to deal with my earlier criticisms (in 2012 and 2015) of the canons I've been discussing here. The plan to make such revisions is referred to (though without mention of my name) in Garner's memoir of his relationship with Scalia, Nino and Me (see pp. 250-251 & 255).

While I hadn't forgotten about any of that when I wrote this post, I had forgotten about the epigraph that had been added to the chapter on the Series Qualifier Canon:

(The highlighting is by Garner, who had highlighted all the text that hadn't been part of the book as originally published.)

Coming up next: The Scalia/Garner Canons: Departures from the existing law

Cross-posted on LAWnLinguistics.

 



11 Comments

  1. Loren said,

    December 3, 2020 @ 3:11 am

    You say there is no ambiguity in the combined NP "infringement of copyright or unlawful use of slogans". But there is another, IMO plausible, parsing:

    ((infringement of copyright) or (unlawful use)) of slogans

    i.e. infringement of copyright of slogans, or their unlawful use

    Arguably the "Porto Rico" rule favors such a reading. Semantically it's relevant, because it excludes copyright infringement of images etc.

  2. Bloix said,

    December 4, 2020 @ 1:54 pm

    It is trivially easy to gives examples of absurd results arising from the application of the Last Antecedent Canon:

    No skateboarding, ball-playing, or cycling in the park.
    We will be outside for most of the tour. Please wear a rain coat or bring an umbrella if rain is forecast.
    I'll need my glasses or my contacts in order to read the instructions.

    If you have a rule of construction that produces unreliable results in ordinary situations, it's useless. It's just a mechanical device that will produce "meaning" unrelated to the intent of the person who created the phrase or to real-world results.

  3. Sean said,

    December 4, 2020 @ 7:43 pm

    @Bloix: I don't see any absurd results arising there. In your first two examples, the Last Antecedent Canon can't even be applied, since they contain no "pronoun, relative pronoun, or demonstrative adjective". And in the third example, there is no ambiguity in the last antecedent, since "my" could only have "I" as its antecedent.

    If you meant the Nearest Reasonable Referent Canon, that also does not produce absurd results, since your examples do contain a parallel series of nouns or verbs. The wording of the Nearest Reasonable Referent Canon outright requires that we defer to the Series Qualifier Canon, which produces the correct and expected result.

  4. Bloix said,

    December 5, 2020 @ 9:13 am

    Sean – I meant the Rule of the Last Antecedent, which is what Goldfarb spends 90 percent of the original post discussing. The examples he uses are:

    Infringement of copyright or unlawful use of slogans in your advertising should be avoided.
    Don’t commit infringement of copyright or unlawful use of slogans in your advertising.

    And then spends considerable time discussing and diagramming whether "in your advertising" applies only to "unlawful use of slogans" or to both that phrase or to "infringement of copyright" as well. The possible ambiguity in these examples has nothing to do with the referent of a pronoun or of a demonstrative adjective.

    So perhaps the original post has nothing to do with the Last Antecedent Canon! But others, including the Supreme Court of the United States, don't see it that way.

    "The“rule of the last antecedent” [is] a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U. S. 20, 26 …"
    https://www.supremecourt.gov/opinions/15pdf/14-8358_o7jp.pdf

    See also,
    https://www.lawprose.org/lawprose-lesson-246-last-antecedent-canon-vs-series-qualifier-canon/

  5. ktschwarz said,

    December 5, 2020 @ 3:57 pm

    Loren: good catch, and there are still more potential parses, e.g. "infringement of [ copyright or unlawful use of slogans ] in your advertising". That one's impossible semantically, because use of slogans isn't something that can be infringed (as far as I know, IANAL). But if the phrase had read "infringement of copyright or patents…", you would have subconsciously conjoined "patents" to "copyright", not "infringement". It's worth spelling all these choices out to see just how *many* decisions the human brain is making, and how it's doing it.

    As computational linguists know, it's easy to find ordinary sentences with hundreds of potential parses. Why aren't laws routinely run through a computer parser to find ambiguities? Or even simple mechanical aids: Why aren't laws required to have a tree diagram attached? Why not forbid "and" and "or", and require bullet lists instead? for example:

    Prohibited in your advertising:
    * Infringement of copyright
    * Unlawful use of slogans

    The cost of additional paper to print that would be immediately offset by time-saving in proofreading and checking, and the savings in litigation afterward would be a net win for everybody. It would've solved the Oakhurst Dairy case immediately.

  6. Michael Watts said,

    December 6, 2020 @ 1:50 am

    The phrase as a whole is a noun phrase (NP), because it can serve many of the syntactic functions that traditional grammar associates with nouns. These, for example (which are grammatical despite being awkward):

    Subject of sentence: Infringement of copyright or unlawful use of slogans in your advertising should be avoided.

    Direct object of verb: Don’t commit infringement of copyright or unlawful use of slogans in your advertising.

    Hmm. But the second sentence is not grammatical; "use of slogans […]" cannot grammatically be the object of "commit". This is an example of a malformed sentence similar to the one in the second panel here: "How can you tell the difference between someone who 'has to be right' versus someone who is right and you need therapy?"

    Dilbert is contrasting the woman's proposed scenario, which has one feature ("Dilbert has a psychological need to be right") with a different scenario that has two features ("Dilbert is right, and you need therapy"). But the idea "you need therapy" has been attached to the sentence in an ungrammatical position. This isn't just a gapless relative; it's a "relative clause" in which the relative pronoun and its referent play no role at all.

  7. ktschwarz said,

    December 6, 2020 @ 10:42 am

    You can't commit plain old ordinary use of slogans, but stick "unlawful" in front of practically anything and then it becomes something you can commit, at least in legalese. I googled "commit unlawful use of …" and got: a weapon; a motor vehicle; public property; a food stamp identification card; a computer; a credit card; personal information; etc. Didn't get any examples of "unlawful use of slogans", but clearly if it's something whose use is regulated, then you can commit unlawful use of it.

  8. Michael Watts said,

    December 6, 2020 @ 11:15 am

    You can't commit plain old ordinary use of slogans, but stick "unlawful" in front of practically anything and then it becomes something you can commit, at least in legalese.

    I don't think this is right. Following your methodology, I found and looked at https://www.srhunterlaw.com/Criminal-Code-of-1961-Article-24-Unlawful-Use-of-Weapons , describing "unlawful use of weapons" under the law of Illinois. The summary at the top, meant for public consumption, includes the sentence "A person can commit unlawful use of a weapon in many ways."

    But this is not an example of the noun "use" (whether or not modified by "unlawful") acting as the object of "commit". Rather, it is an example of "unlawful use of weapons" being the name of a crime. Crimes can be the object of "commit". The legalese itself obeys the distinction:

    Sec. 24-1. Unlawful Use of Weapons.

    (a) A person commits the offense of unlawful use of weapons when he knowingly: […]

    Just as you'd expect, you can commit an offense, but not a use.

  9. ktschwarz said,

    December 6, 2020 @ 1:31 pm

    Right, the object of "commit" is not the isolated noun "use", it's the entire noun phrase "unlawful use of slogans". You can't drill into it and pull out "use"—as you could with "commit a heinous crime"—but the phrase as a whole is fine. (So I should've said that "unlawful use of slogans", as a whole, is something that can't be infringed.) And you can easily find examples in actual legal codes and charges:

    A person commits unlawful use of means of transportation if…
    charged with conspiracy to commit unlawful use of a computer
    criminal attempt to commit unlawful use of a credit card

  10. Michael Watts said,

    December 6, 2020 @ 2:45 pm

    Right, the object of "commit" is not the isolated noun "use", it's the entire noun phrase "unlawful use of slogans".

    But this analysis can't make the example grammatical, because there is no crime of "unlawful use of slogans" to which you might be referring. (I just ran a search; 100% of results are commentary on this case. Thus, the insurance contract cannot have been contemplating a named crime.)

  11. Batchman said,

    December 13, 2020 @ 3:01 pm

    So, if "infringement of copyright or unlawful use of slogans in your advertising should be avoided," however you parse it, are they saying that infringement of copyright is OK if it's done outside of your advertising? Are they saying that unlawful use of slogans is OK if it's done outside of your advertising?

    This reminds me of some of the sillier statements in drug commercials, like "Do not drink alcohol in excess while using this product." Does that mean it's OK to drink alcohol in excess if you're not using that product?

RSS feed for comments on this post