Justice Alito Warns of Loose Canons of Interpretation

Today was decision day at the U.S. Supreme Court. No criminal cases were decided. Facebook v. Duguid is an exercise in statutory interpretation regarding a law on autodialers. Justice Alito has an interesting concurring opinion warning of loose canons of interpretation. (That’s my pun, not his.)

If a statute refers to “A, B, or C with X” does the modifier “with X” apply to all three or just C?

The majority invokes the “series-qualifier canon” to say that the modifier applies to the whole series, not just the last element in the list. Justice Alito cautions that we should not mechanically apply such canons but use some sense in interpretation. He offers some examples, including “When his owner comes home, the dog wags his tail and barks loudly.” Obviously the dog does not wag his tail loudly.

But what makes sense to one person might not make sense to another. If I tell a restaurant server, “I’ll have pizza and a salad with ranch dressing,” it’s obvious to me that I only want the ranch on the salad. Putting ranch on a pizza is revolting. But de gustibus non est disputandum. A lot of people like it that way.

So a word to wise statute drafters: Be careful with modifiers after lists and make sure the scope is unambiguous. Don’t rely on canons or common sense.

Two other cases were decided today. One was another State v. State case involving, yet again, a fight about water. Usually these fights are between arid or semi-arid western states, but this one was Florida v. Georgia. Florida doesn’t have enough water? Whoda thunk it?

The other case was about FCC rules on ownership of radio stations.