February 27th, 2021


Whereas the Supreme Court rules for stuffy language

Noah Feldman

By Noah Feldman Bloomberg View

Published March 2, 2016

 Whereas the Supreme Court rules for stuffy language

Should laws be understood based on the way people speak? Or should they be interpreted according to technical rules of statutory construction, so that law becomes a specialized language game all its own? In a decision issued Monday, the U.S. Supreme Court voted, 6-2, for the second option. The case, Lockhart v. U.S., promises to be a classic. The court's breakdown was about jurisprudence, not partisan ideology. And the issue was, remarkably enough, dangling modifiers.

Rather than reminding you what a dangling modifier is and why you should despise it, let me give you an example from the dissent, by Justice Elena Kagan. "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new "Star Wars" movie,' " Kagan wrote. The dangling modifier is the phrase "involved with the new 'Star Wars' movie."

Kagan explained that, listening to your friend, "you would know immediately that she wanted to meet an actor from the 'Star Wars' cast -- not an actor in, for example, the latest 'Zoolander.' " As a matter of ordinary language, Kagan is obviously right. But if the friend's request is parsed with analytical precision, it might've meant instead that she wanted to meet just any old actor or director -- or a producer involved with "Star Wars."

At issue in the case was a federal statute that establishes a 10-year mandatory minimum sentence for someone with three prior convictions for crimes "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor." The dangling modifier here is the phrase "involving a minor."

The law is about as poorly drafted as a law can be. The meaning of the dangling modifier decides the criminal sentence. For those looking for an English-teacher takeaway, it's this: Don't dangle modifiers, because people's lives depend on it.

One of the prior convictions of defendant, Avondale Lockhart, involved the sexual abuse of an adult, not a minor. Arguing for the ordinary meaning of the dangling modifier, Lockhart maintained that the statute didn't apply to him. In his view, the aggravated sexual abuse and the sexual abuse mentioned in the statute were meant to be counted only if they involved a minor. In other words, the dangling phrase modified the whole list.

In an opinion written by Justice Sonia Sotomayor, generally speaking the most liberal justice, and joined by Justice Ruth Bader Ginsburg as well as the four conservatives, the court rejected Lockhart's argument. It relied on a technical rule of statutory construction known as "the rule of the last antecedent," which Sotomayor called "a timeworn textual canon." The idea is that "a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Hence, the phrase "involving a minor" only refers to "abusive sexual conduct." Prior convictions not involving minors are included within the law, not excluded.

Sotomayor dismissed the idea, pressed by Kagan in her dissent joined by Justice Stephen Breyer, that laws should be interpreted like ordinary speech. In this statute, "No one would mistake its odd repetition and inelegant phrasing for a reflection of the accumulated wisdom of everyday speech patterns," Sotomayor wrote. She subtly disparaged Kagan's as "a suggestion rooted in its impressions about how people ordinarily speak and write." The statute, she concluded, was a piece of technical legal language, albeit a poorly drafted one, and should be interpreted according to rules used by lawyers.

In response, Kagan upped the cleverness ante. In a footnote that must've been fun to compile, she cited no fewer than five examples from this Supreme Court term alone of the court using dangling modifiers. Her point was that the ordinary language use of the dangling modifier applies in "formal writing" as well as colloquial speech.

But what's especially fascinating about Kagan's opinion is its relentlessly colloquial style, something that has emerged as a specialty in her dissents, most notably her Town of Greece dissent from 2014. Kagan's writing intentionally breaks down the boundary between ordinary speech and legal writing. She regularly addresses the reader in the second person singular as "you," something I was taught never to do in formal writing and have learned only since I started writing this column. In this case, Kagan's medium is her message.

This explains the unusual vote breakdown in the Lockhart case. Kagan and Breyer are the court's resident pragmatists. And in the grand tradition of American pragmatism going back at least to John Dewey, they like to avoid jargon or technical language wherever possible. Their pragmatism is connected to a project of demystifying the law -- which in turn requires demystifying legal language.

The other six justices are more formalistic. Although two are liberal, three conservative and one (Anthony Kennedy) a distinctive liberty-oriented amalgam, they all are attracted to the idea of law as a formal system with its own rules.

Most lawyers would agree. After all, the reason you need to go to law school to become a lawyer in the U.S. is precisely that law isn't exactly like common sense. That's why the great English jurist Edward Coke said that law was "artificial reason." He meant that you can't understand it intuitively, without training.

For now, statutory interpretation remains its own little language world. Someday, pragmatic reformers like Kagan and Breyer might succeed in changing that. But first they'll have to break down the insularity of legal institutions.

Good luck with that.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."