tag:blogger.com,1999:blog-7420543479422278886.post5866212728136168963..comments2023-09-30T06:44:56.203-07:00Comments on The Narrowest Grounds: Supreme Court 2016 Statutory Term in Review: Perry v. MSPB, Punctuating Adverbial and Adjectival Phrases, and the Beach BoysAsher Steinberghttp://www.blogger.com/profile/13081594205660019619noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-7420543479422278886.post-67343864284366023922017-10-14T17:19:18.412-07:002017-10-14T17:19:18.412-07:00Neal:
First of all, I can't tell you what a d...Neal:<br /><br />First of all, I can't tell you what a delight and comfort it is to have my intuitions confirmed by someone who actually knows something about grammar and syntax (even if that someone is a wicked CL advocate). I felt pretty confident from my noodling around with the sentence that he needed commas for his oral-argument reading to be correct, but you are one of the few lawyers in America who really *knows* such things with certainty. So thank you. Until now I thought there was a 5% chance that I had made some blunder.<br /><br />Second, I just want to clarify to you and the world if I hadn't made it clear already that there is *a* textual path to Gorsuch's interpretation; it's just not the one advanced at oral argument. It would involve distinguishing the "cases" in 7703(b)(2) from the "case" discussed in 7702. Now, you might say, how could one do that; doesn't 7703(b)(2) cross-refer to 7702? Yes, indeed; however, as a legal matter, query whether the "case" that shall be filed in district court to review an agency's decision in a "case" before it is the same case as the agency's "case." Normally we think of those things as different cases. So what arguably is being said here is, "file a discrimination case regarding an agency decision in a 7702 case in district court." That's a rather loose reading of "subject to," but if "subject to" means "cases governed by 7702 in the sense that 7702 governs the timing of their reviewability and agency exhaustion thereof," it can work. This is what the Federal Circuit dissenters argued, more or less, and I want to be clear that it is, in my view, a permissible reading -- just not one that Gorsuch argued for. Gorsuch, rather, just begs all the questions one could ask about this statute.<br /><br />Third, on X-Citement, isn't the structure rather more complicated by the presence of the first verb phrase, knowingly distributes? I guess I see what you mean; you're rolling that relative clause into the "[Noun phrase]." But the Court, of course, conceptualizes this in a very different way as a problem of what "knowingly," a part of that noun phrase, modifies. Your analysis may well ultimately be a clearer explanation of the problem, though; I'm pretty sure it is. Also, when you say it would be impossible for the if clause to be within the scope of knowingly, by which I take you to mean that there would be no way to write it so that it syntactically were, couldn't this have been accomplished rather easily by writing "that" instead of "if"? "Any person who knowingly sells a dog that has rabies shall be punished" requires scienter as to the rabies (though I'll again want you to confirm my intuition here). So I'm a little inclined to agree with Scalia that if Congress wanted to say what the Court read them to be saying, they could have done it. <br /><br />Fourth, just between us, I thought Solan's new article on CL stated some of my objections in a much less frisky/fiskingly way than I have, and responded to them in ways that I think are pretty sound, at least in part. Asher Steinberghttps://www.blogger.com/profile/13081594205660019619noreply@blogger.comtag:blogger.com,1999:blog-7420543479422278886.post-85624232893396576802017-10-14T15:11:39.940-07:002017-10-14T15:11:39.940-07:00Of all the people who have read this post, or will...Of all the people who have read this post, or will do so in the future, I'm perhaps the only one read the post because the title included the phrase "punctuating adverbial and adjectival phrases." Before seeing that title, I'd only glanced at Perry, for the same reason to which you attribute the lack of commentary about the dissent: too difficult, and insignificant, and dull. <br /><br />So before I read your post, I downloaded the decision and read through it quickly (skipping the obviously irrelevant parts). As I read the dissent, I kept waiting for Gorsuch to start acting like a textualist. As far as I could tell, he never did. However, I couldn't force myself to go back and read it again, carefully. See reasons, supra. I now see from your post that I made the right decision.<br /><br />Turning, finally, to adverbial and adjectival phrases, I agree with what you say, and would like to make a few additional points.<br /><br />First, if the statute had been intended to mean what Gorsuch thinks it does, it would have made sense, not only to put commas around “subject to the provisions of section 7702,” but also to move “shall” up to the spot immediately after “cases of discrimination”:<br /><br />“Cases of discrimination shall, subject to the provisions of section 7702, be filed…”<br /><br />That would have put “subject to…” unambiguously into the verb phrase, and blocked any possible reading in which it modified “cases of discrimination.” Therefore, although the adverbial reading can result from merely putting commas around “subject to…”, that is a less clear way of conveying that reading. <br /><br />By the way, the structural issue here is similar in some ways (but different in others) to the one in U.S. v. X-Citement Video, which involved the following nightmare of a statute (it’s much worse without the elisions): <br /><br />“Any person who knowingly... distributes... any visual depiction... if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct ... shall be punished.” <br /><br />Like the provision in Perry, the structure here is [Noun phrase][phrase acting as modifier][shall ne VERBed]. All the justices except Stevens agreed that the most natural reading of the statute was that it permitted conviction even if the defendant didn’t know that the visual depiction of sexually explicit conduct involved a minor. (But note that that reading would have been even clearer if “shall” had been moved to just before the “if…” phrase.)<br /><br />However, there’s an important difference between the two statute. In X-Citement Video, it is almost impossible for the “if...” clause to be within the scope of knowingly. But in Perry, the “subject to” phrase, without commas, is easily read as modifying “cases of discrimination”. <br /><br />Thus, although the cases reached different conclusions about the most natural reading of provisions that are structurally similar to one another, the difference in the conclusions is justified.<br />Neal Goldfarbhttps://www.blogger.com/profile/06930328556076238227noreply@blogger.com