Recasting Canons of Interpretation and Construction into "Canonical" Queries

In a new Article I advocate recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction. This Article can be opened or downloaded by clicking here.

How To Do Things With Signs: An Overview of Semiotics for Lawyers and Others

Click HERE for a link to my current draft of "How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education."

Abstract

Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

Keywords: semiotics, intentionality, signifier, sense, reference, meaning, index, icon, symbol, rhetoric, speech act, interpretation, construction, speaker meaning, reader meaning, originalism, first amendment, intent, contracts, legislation, Peirce, Shakespeare, directive, commissive, verdictive

Addition to "Strings of Thought" (2/7/18)

2/7/18 A legislative bill or other proposal isn’t simply a string of words on a page. Instead, a legislative bill or other proposal involves concepts (the signified) to which words (the signifiers) refer with varying degrees of precision.  Legislators debate the concepts signified and the signifiers as signifying such concepts.  Justice Scalia therefore oversimplifies how language works when he claims that “the only thing one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute.”  (Reading Law, p. 376) Justice Scalia oversimplifies here because any such text was adopted as part of a greater whole, as signifiers of concepts involved in the bill.  For example, a statute reading “All cars must drive on the write side of interstate roads” adopted by both houses of Congress and signed by the President no doubt likely means “All cars must drive on the right side of interstate roads.” It’s hard to believe that both houses and the President agreed on “write side” instead of “right side” of the road. I at least cannot “say for sure” that they did. Justice Scalia concedes the same by acknowledging what he considers “the rare case of an obvious scrivener’s error.” (Reading Law, p. 57)  In the real world, of course, obvious scrivener’s errors are hardly rare.

The entire text of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/30/18)

Legislative Intent

1/30/18  Legislative “intent” lies in legislatures’ speech acts and not legislators’ speech acts.  That is, legislative “intent” is the speaker meaning of legislatures not legislators—confusing the two is a category mistake. For example, when the legislature adopts a rule requiring drivers to drive on the right side of the road, the legislature has performed a directive speech act adopting a rule to some end or purpose (such as changing driving patterns to enhance road safety).  When the legislature censures someone, it has performed an expressive speech act condemning someone for some end or purpose (such as discouraging future bad behavior on the part of public officials).  The different purposes (and the plans involved in such purposes) distinguish the different types of speech acts. Recognizing this distinction between legislature and legislator speech acts avoids pseudo-quandaries such as “How can we ever aggregate the subjective intent of countless legislators to determine legislative intent?” or “How do we include the intent of a legislator who votes for a bill for unrelated reasons?” Instead, we ask: “What is the objective bill or proposal (and the concomitant purpose or plan or both) properly adopted by the legislature?”  We also ask: “What are the objective concepts involved?” while acknowledging such concepts can have yet-to-be explored threads and extensions.

1/30/18 A legislature typically speaks best when it adopts a bill or other proposal (and any concomitant purpose or plan) after reasonable debate by legislators.   Although individual legislators’ speaker meaning in such debates can be highly relevant evidence of the legislature’s speaker meaning, legislators’ speech acts are not legislatures’ speech acts. 

The entire post of "Strings of Thought" can be found here.

Speaker Meaning and the Interpretation and Construction of Executive Orders

Here is an abstract of my latest article posted on SSRN:

ABSTRACT:

This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”).

President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!”