[This post has been revised; see my note at the bottom.]

The post before this one, dealing with the dueling canons in Lockhart v. United States, was my first after a gap of more than two years. In my last post before that gap, I wrote about an amicus brief I had just filed in the Supreme Court in Nassar v. University of Texas Southwestern Medical Center. The brief dealt with the meaning of the construction because of X. Specifically, it dealt with whether that construction incorporates the notion of but-for causation as part of its meaning. My brief argued that it does not.

The Supreme Court had previously reached the opposite conclusion, in a case involving the Age Discrimination in Employment Act: Gross v. FBL Financial Services. In Nassar, the question was whether the holding in Gross should be extended to a different statute that similarly used the formulation because of X. I argued that the Court should not follow Gross because Gross had been wrong about what because means. Some might regard such an argument as quixotic; I preferred to think of it as audacious.

The core of my argument was based on real-world sentences like Example (1) (emphasis added):

(1) The Constitution abhors clas­sifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the gov­ernment places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.

The sentence gives two reasons for the Constitution’s abhorrence of classifications based on race, and it expresses the causal relationships between the reasons and the abhorrence by using the word because: “not only because…but also because….” Yet each of the reasons by itself would presumably have been sufficient to explain the Constitution’s antipathy to racial classifications; as a result, neither reason was itself the but-for cause of that antipathy. If it were true that the use of the word because entails but-for causation, the sentence would be anomalous. If the idea of but-for causation is inherent in what because means, it wouldn’t make sense to say that something happened not only because of but-for Cause 1, but also because of but-for Cause 2. After all, part of what it means to say that because entails but-for causation is that the word would not be used in regard to situations where such cause does not exist. But the sentence in (1) uses because in exactly such a situation. Which indicates that contrary to what the Supreme Court held in Gross and later in Nassar, because does necessarily express but-for causation.

Further evidence for that conclusion is provided by (2)-(5) below (emphasis added), each of which is similar to (1) in using the word because in situations in which but-for causation was absent (because each of the two causes referred to was itself a sufficient cause):

(2) This Court rejected that proposition, not only because it did not regard Francis as a new rule, but also because the state court did not “plac[e] any limit on the issues that it will entertain in collateral pro­ceedings.”

(3) As a means of protecting chil­dren from por­tray­als of violence, the legislation is seriously un­der­inclusive, not only because it excludes por­trayals other than video games, but also because it per­mits a parental or avuncular veto.

(4) We do not know anything about [Juror Z’s] demeanor, in part because a transcript cannot fully reflect that information but also because the defense did not object to Juror Z’s removal.

(5) Fitzgerald repeatedly empha­sized in her briefs and at argument that she was entitled to [final] benefits not just because of the extensive delay, but also because of her in­digency and the merits of her case.

Now, examples (1)-(5) were not made up for purposes of illustrating my point. Rather, each sentence represents an actual use of the word because in a real-world document. In fact, you have heard of the people who wrote these sentences. They are as follows, with numbering that corresponds to the numbering of the sentences:

(1) Supreme Court Justice Thomas, who wrote the majority opinion in Gross, stating that because necessarily expresses but-for causation. (Link, p *353.)

(2) Chief Justice Roberts, who joined in the decisions in Gross. (Link, p. *298.)

(3) Justice Scalia, who joined in the decision in Gross. (Link, p. *2742.)

(4) Justice Kennedy, who joined in the decision in Gross. (Link, pp. *1229.)

(5) Justice Alito, who joined in the decision in Gross. (Link, p. * 235.)

So, you see, every member of the majority in Gross—every single one of them—had used the word because in a way that proved the holding in Gross to be wrong. And those weren’t the only time they had done so. Nor are they the only people who have used because to express non-but-for causation. In my brief I provided dozens of additional real-world examples of such uses.

Given this evidence, the argument that Gross was wrong seemed to me (and still seems) to be a slam-dunk. And while I’m obviously biased, I’m usually pretty good at seeing any weaknesses lurking in the arguments I make. (If you think I’m wrong, please submit a comment that explains why you think that.) But despite my confidence in the brief, it went over like a lead balloon.

By a 5-4 vote, the Court followed Gross, once again declaring that using because expresses but-for causation. That in itself wasn’t all that surprising—I always knew that in asking the Court to reject Gross I was swimming upstream—but I thought that the brief would, like the linguistics-based briefs I’d previously filed, attract the attention of at least some of the justices. But no. At oral argument nobody asked any questions about the meaning of because. The majority opinion didn’t deal with the issue. Nor was it addressed in the dissent.

I was obviously disappointed at having my arguments go unnoticed, but that’s very much a First World Problem. What’s more consequential is the fact that the Gross/Nassar interpretation of because will almost certainly become the prevailing interpretation of the word in U.S. law.

It has already been followed in cases decided under different statutes, and it will undoubtedly continue to be applied to other statutes. That is a near certainty in the federal courts, where Gross and Nassar will probably be regarded as binding precedent on what because means. And although state courts will be free to interpret the word differently when applying state law, most of them will probably follow the federal-law precedent. At some point a case will come up where the but-for interpretation makes no sense, or leads to a terrible result, and it will be interesting to see what happens then.

In any event, the question whether the interpretation should be given precedential effect is an interesting one. On the one hand, decisions by the Supreme Court on questions of federal law are binding on all U.S. courts, and since the Supreme Court’s interpretation of because arose in the course of interpreting federal statutes, it is easy to treat it as a legal question and therefore within the scope of the Court’s law-declaring authority.

On the other hand, even if the issue is treated as a question of law, it is also—unavoidably and inherently—a question of fact. The potential meanings of a word are determined by how the word is used by speakers of the language. That is a bottom-up process that is not especially susceptible to control by social/political institutions such as the courts. The Supreme Court’s declaration of what because means will have no effect how the word is used by the hundreds of millions of people who speak English as their native language. Those people are the real adjudicators of what the word means, and they will go on using it just as they have before, subject only to the ordinary forces of language change. The word because will probably be used billions of times every day, and in untold millions of those instances, the word will be used in ways providing further evidence that the Supreme Court got it wrong.

Given those circumstances, it is odd to think that courts in the United States would have to forever disregard reality.

Note: I realized after this was posted that a sentence in the first paragraph after the jump contained two non-s that shouldn’t have been there. I’ve therefore edited the sentence as follows: “If the idea of but-for causation is inherent in what because means, it wouldn’t make sense to say that something happened not only because of non-but-for Cause 1, but also because of non-but-for Cause 2.” I’ve also made some nonsubstantive edits elsewhere in the post.

Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if  the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”

The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.

My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.

And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.

A few points to note before I explain why the use of because of and by reason of doesn’t necessarily require but-for causation. First, for those of you who’ve noticed that the statute in Husted says “solely by reason of” while the statute in Nassar didn’t say “solely because of”—yes, you’re right, that might make a difference. But since this is LAWnLinguistics, not LAWnLiability, I can safely assume the solely away. (Don’t you wish you could do that in real life?) Second, even with that assumption, I don’t know how much it matters in Husted that under the existing law, the statute requires but-for causation. But again, what I’m talking about here is primarily semantics, and only secondarily law.

SO, ON TO THE SEMANTICS. I’ll start by recapping what I argued in my brief in Nassar. (If the discussion looks familiar, that’s because it’s adapted from a previous post.)

My analysis of what because means is based on real-world sentences like this one (emphasis added):

(1) The Constitution abhors clas­sifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the gov­ernment places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.

This sentence gives two reasons for the abhorrence of racial classifications, and it expresses the causal relationships between the reasons and the abhorrence by using the word because: “not only because…but also because….” Yet each of the reasons by itself would presumably have been sufficient to explain the constitution’s antipathy to racial classifications. As a result, neither reason was itself the but-for cause of that antipathy. If it were true that the use of the word because entails but-for causation, the sentence would be anomalous. If the idea of but-for causation is inherent in what because means, it wouldn’t make sense to say that something happened not only because of but-for Cause 1, but also because of but-for Cause 2. After all, part of what it means to say that because entails but-for causation is that the word would not be used in regard to situations where such cause does not exist. But the sentence in (1) uses because in exactly such a situation, and it does so without making the sentence seem weird. Which indicates that contrary to what the Supreme Court has held, because does necessarily express but-for causation.

Further evidence for that conclusion is provided by (2)-(5) below (emphasis added), each of which is similar to (1) in using the word because in situations in which but-for causation was absent (because each of the two causes referred to was itself a sufficient cause):

(2) This Court rejected that proposition, not only because it did not regard Francis as a new rule, but also because the state court did not “plac[e] any limit on the issues that it will entertain in collateral pro­ceedings.”

(3) As a means of protecting chil­dren from por­tray­als of violence, the legislation is seriously un­der­inclusive, not only because it excludes por­trayals other than video games, but also because it per­mits a parental or avuncular veto.

(4) We do not know anything about [Juror Z’s] demeanor, in part because a transcript cannot fully reflect that information but also because the defense did not object to Juror Z’s removal.

(5) Fitzgerald repeatedly empha­sized in her briefs and at argument that she was entitled to [final] benefits not just because of the extensive delay, but also because of her in­digency and the merits of her case.

Now, examples (1)-(5) were not made up for purposes of illustrating my point. Rather, each sentence represents an actual use of the word because in a real-world document. In fact, you have heard of the people who wrote these sentences. They are as follows, with numbering that corresponds to the numbering of the sentences:

(1) Supreme Court Justice Thomas, who wrote the majority opinion in Gross, stating that because necessarily expresses but-for causation. (Link, p *353.)

(2) Chief Justice Roberts, who joined in the decisions in Gross. (Link, p. *298.)

(3) Justice Scalia, who joined in the decision in Gross. (Link, p. *2742.)

(4) Justice Kennedy, who joined in the decision in Gross. (Link, pp. *1229.)

(5) Justice Alito, who joined in the decision in Gross. (Link, p. * 235.)

So every member of the majority in Gross—every single one of them—has used the word because in a way that proves their collective conclusion to be wrong. Moreover, those weren’t the only times they had done so, and they are by no means the only people who have used because to express non-but-for causation. In my brief I provided dozens of additional real-world examples of such uses.

THE ARGUMENT ABOUT by reason of is the same as the argument about because of, but with a different set of quotes. Here are some of them:

 “We start with the proposition that in a federal, criminal case the requirement of unanimity applies not only by reason of F. R. Crim. P., Rule 31(a), but also by reason of the Sixth Amendment.” United States v. Morris (10th Cir. 1979) (cleaned up).

“This item of evidence possesses significance not only by reason of the manner in which it was signed, but also by reason of the nature of its subject matter.” Farmers & Merchs. Bank v. Kirk (Cal. Dist. Ct. App. 1958).

“An issue can be beyond the scope of arbitration not only by reason of language in the arbitration agreement but also by reason of a prior adjudication.” Peregrine Fin. Group v. Ambuehl  (Ill. App. Ct. 1999) (cleaned up).

“The judge charged the jury in general terms (among other things) that each defendant could be found guilty on each indictment against him not only by reason of his own individual acts but also by reason of his participation with one or more of the other defen­dants in a joint venture.” Massachusetts v. Savoy (Mass. App. Ct. 1986).

In addition to by reason of and because of, several other expressions also fall into the category of having been erroneously held to require but-for causation (as shown in my brief): based on, on the basis of, and on account of.

Someday a case will come along in which applying the prevailing interpretation of these expressions leads to a result that the court really doesn’t like. It will be interesting to see whether that will lead to a second look being taken at these erroneous interpretations.

I’ve posted the paper that I presented at this year’s Law & Corpus Linguistics Conference at the BYU Law School. It’s titled “Corpus Linguistics in Legal Interpretation: When Is It (In)appropriate.” The abstract is below.

Corpus linguistics can be a powerful tool in legal interpretation, but like all tools, it is suited for some uses but not for others. At a minimum, that means that there are likely to be cases in which corpus data doesn’t yield any useful insights. More seriously, in some cases where the data seems useful, that appearance might prove on closer examination to be misleading. So it is important for people to be able to distinguish issues as to which corpus results are genuinely useful from those in which they are not. A big part of the motivation behind introducing corpus linguistics into legal interpretation is to increase the sophistication and quality of interpretive analysis. That purpose will be disserved corpus data is cited in support of conclusions that the data doesn’t really support.

This paper is an initial attempt to deal with problem of distinguishing uses of corpus linguistics that can yield useful data from those that cannot. In particular, the paper addresses a criticism that has been made of the use of corpus linguistics in legal interpretation — namely, that that the hypothesis underlying the legal-interpretive use of frequency data is flawed. That hypothesis, ac-cording to one of the critics, is that “where an ambiguous term retains two plausible meanings, the ordinary meaning of the term… is the more frequently used meaning[.]” (Although that description is not fully accurate, it will suffice for present purposes.)

The asserted flaw in this hypothesis is that differences in the frequencies of different senses of a word might be due to “reasons that have little to do with the ordinary meaning of that word.” Such differences, rather than reflecting the “sense of a word or phrase that is most likely implicated in a given linguistic context,” might instead reflect at least in part “the prevalence or newsworthiness of the underlying phenomenon that the term denotes.” That argument is referred to in this paper as the Purple-Car Argument, based on a skeptical comment about the use of corpus linguistics in legal interpretation: “If the word ‘car’ is ten times more likely to co-occur with the word ‘red’ than with the word ‘purple,’ it would be ludicrous to conclude from this data that a purple car is not a ‘car.’”

This paper deals with the Purple-Car Argument in two ways. First, it attempts to clarify the argument’s by showing that there are ways of using corpus linguistics that do not involve frequency analysis and that are therefore not even arguably subject to the Purple-Car Argument. The paper offers several case studies illustrating such uses.

Second, the acknowledges that when frequency analysis is in fact used, there will be cases that do implicate the flaw that the Purple-Car Argument identifies. The problem, therefore, is to figure out how to distinguish these Purple-Car cases from cases in which the Purple-Car Argument does not apply. The paper discusses some possible methodologies that might be helpful in making that determination. It then presents three case studies, focusing on cases that are well known to those familiar with the law-and-corpus-linguistics literature: Muscarello v. United States, State v. Rasabout, and People v. Harris. The paper concludes that the Purple-Car Argument does not apply to Muscarello, that it does apply to Rasabout, and that a variant of the argument applies to the dissenting opinion in Harris.