Yesterday's oral argument in Facebook, Inc. v. Duguid featured the Supreme Court debut of celebrity textualist and Scalia co-author Bryan Garner. Elura Nanos at Law & Crime has details: Supreme Court Justices Appeared Dazzled by Legal Celebrity at Oral Arguments in Robocall Case Against Facebook. From the introduction:
[Duguid's] legal team, knowing that SCOTUS will face difficult questions of statutory interpretation in the case, offered up some legal celebrity firepower. Arguing on their behalf was renowned scholar Bryan Garner.
Garner, the editor of Black’s Law Dictionary and author of numerous well-known treatises on legal writing, is the kind of legal star whose rookie card would be worth thousands if jurists did that sort of thing. While well-known within legal circles, Garner is not experienced as a Supreme Court litigator; Tuesday’s arguments constituted Garner’s SCOTUS debut.
As a result of Garner’s participation, Tuesday oral arguments amounted to 90 minutes of mind-numbing debate over grammar and syntax rules. The event was a feat of legal geekery heretofore unseen—and some of the justices were happy to bask in Garner’s academic glow.
In his authoritative baritone, which came through even in telephonic oral arguments, Garner walked the justices through his arguments on what statutory wording really meant and how it should be applied to Facebook’s wrongdoing. As Garner nimbly led the justices through a discussion of adverbial modifiers, “viperine” interpretation of statutes, and conjunctive versus disjunctive distinctions, the justices appeared content to assume the position as students in Garner’s classroom.
Here is SCOTUSblog's summary of the case: Case preview: Justices again take on anti-robocall law.
At LAWnLinguistics, Neal Goldfarb has two long posts (with more to come) (via How Appealing):
Robocalls, legal interpretation, and Bryan Garner (the first in a series)
The precursors of the Scalia/Garner canons
From the introduction to the first post, here's his summary of the case:
The case began when Noah Duguid filed a class-action suit against Facebook for violating the Telephone Consumer Protection Act, a 1991 statute that regulates telemarketing. He accused Facebook of having violated the statute’s restrictions on sending texts by means of what the statute referred to as an “automatic telephone dialing system”—an “ATDS,” for short. Facebook argues that the texts about which Duguid is complaining were not sent using such a system, and at issue is how to interpret the statute’s definition of an ATDS.
That definition reads as follows:
The term “automatic telephone dialing system” means equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.
The dispute concerns the phrase using a random or sequential number generator. The specific question is whether the phrase should be understood as modifying both store…telephone numbers and produce telephone numbers (Facebook’s position) or as only produce telephone numbers (Duguid’s).
And he does not think much of the canons of interpretation Garner uses in support of Duguid's side:
The canons in question are the Last Antecedent Canon, the Series-Qualifier Canon, and the Nearest Reasonable Referent Canon (although only the first two are cited or discussed in the briefs by name). They are set out below, as they appear in the [Scalia and Garner's book Reading Law], but without the accompanying commentary:
Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
Series-Qualifier Canon. 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.
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.
I’ve previously written about these canons at LAWnLinguistics, and in those posts (collected here), I criticize the canons for several reasons. In addition to pointing out their departure from preexisting law, I said in my first post that “they don’t hang together as a coherent set of principles.” In a later post, I said that I’d come to believe “that the framework established by Reading Law is not merely problematic but deeply flawed.” That remains my conclusion, but at this point I’ll be more blunt.
The Last Antecedent Canon, the Series Qualifier Canon, and the Nearest Reasonable Referent Canon collectively add up to a confused and confusing mess. The distinctions they draw are arbitrary, and Series Qualifier and Nearest Reasonable Referent Canons are in conflict with one another: they overlap in their coverage, and within the area of overlap their interpretive prescriptions point in opposite directions.
Posted at 6:11 AM