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Testing The 'Strength And Validity' Of The Canons

Justice Alito gives a shoutout to corpus linguistics!

By James Heilpern  
on

Ed. note: This article first appeared on The Juris Lab, a forum where “data analytics meets the law.”

The Supreme Court recently handed down its verdict in Facebook, Inc. v. Deguid, a statutory interpretation case about section 227(a)(1) of the Telephone Consumer Protection Act of 1991. The Act prohibits the use of “automatic telephone dialing system[s]” to make calls “to any telephone number assigned to a . . . cellular telephone service” without the “prior consent of the called party.” At issue was the statutory definition of an autodialer:

Equipment which has the capacity–

  1. To store or produce telephone numbers to be called, using a random or sequential number generator; and
  2. To dial such numbers.

No one disputed that Facebook had a system in place that automatically sent text messages to phone numbers associated with Facebook accounts in certain contexts, but Facebook argued that this system did not qualify as an autodialer under the statutory definition. Justice Sotomayor, writing for the majority, agreed.

Congress defined an autodialer in terms of what it must do (“store or produce telephone numbers to be called”) and how it must do it (“using a random or sequential number generator”). The definition uses a familiar structure: a list of verbs followed by a modifying clause. Under conventional rules of grammar, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (Scalia & Garner) (quotation modified). The Court often applies this interpretative rule, usually referred to as the “series-qualifier canon.” 

Justice Alito concurred in the judgment only, taking issue with the majority’s characterization of the series-qualifier canon — and indeed the canons of construction generally — as “conventional rules of grammar.” 

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To the extent that interpretive canons accurately describe how the English language is generally used, they are useful tools. But they are not inflexible rules. Appellate judges spend virtually every working hour speaking, listening to, reading, or writing English prose. Statutes are written in English prose, and interpretation is not a technical exercise to be carried out by mechanically applying a set of arcane rules. Canons of interpretation can help in figuring out the meaning of troublesome statutory language, but if they are treated like rigid rules, they can lead us astray. When this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way.

Justice Alito then reframed the applicability of the canons as an “empirical question” and called on corpus linguistic scholars to test the canons’ “strength and validity” using databases of English prose. 

As it turns out, this research is already underway. Two and a half years ago, I submitted an amicus brief to the Court in Rimini Street v. Oracle that used corpus linguistics to cast doubt on the rule against surplusage, at least in the context of the costs provision of the Copyright Act. In addition, BYU Law hosts a Law & Corpus Linguistics conference every year, and a major theme of the last two conferences has been testing the canons (see 2020 and 2021 conference schedules). A team consisting of Utah Supreme Court Justice Thomas Lee, Northern Arizona University linguistics professor Jesse Egbert, and Justice Lee’s law clerk Zak Lutz is currently working on an article that uses corpus linguistics to test the reliability of the canon against surplusage in general. Larry Solan and Jeffrey Stempel have a similar project in the works.  Perhaps more interesting to Justice Alito would be the work of Williams & Connelly attorney Andy Hoffman, NAU doctoral student Margaret Wood, Lee, Egbert, and BYU linguistics professor Brett Hashimoto, who are collectively working on a project that uses a corpus of the U.S. Code to test the series-qualifier canon and last antecedent rule. Though none of these papers has been published yet, preliminary findings and research methods have been presented at past BYU conferences.

I predict that this will be one of corpus linguistics’ most significant contributions to the practice of law: testing (and perhaps disproving) certain canons and developing others that more accurately reflect the way we speak, write, and read English, especially in the context of legal language. Time will tell.

Read more at The Juris Lab … 

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James Heilpern is a pioneer at the forefront of the Law & Corpus Linguistics movement, an emerging legal discipline that seeks to harness the power of big data to produce empirical evidence about meaning of words and phrases in legal instruments. He currently serves as President and Managing Partner of Corpus Legal Services, a litigation consulting boutique that provides corpus linguistic training, consulting, and expert witness services to law firms nationwide. 

James also works as Counsel for Schaerr|Jaffe, LLP, a complex-litigation boutique, where he has represented clients before the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Corte Suprema de Puerto Rico, and district courts around the country. In this capacity, he has authored some of the first briefs in the country to employ corpus-linguistic techniques. James is also a Senior Fellow at the BYU Law School where he teaches Law & Corpus Linguistics and Education Law and has authored law review articles in some of the nation’s leading law reviews.

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