Justice Alito Pokes Justice Sotomayor Over Canons of Construction in Facebook v. Duguid
Today the Supreme Court decided Facebook v. Duguid. This case presents a question of statutory interpretation. Section 227(a)(1) of the Telephone Consumer Protection Act of 1991 (TCPA) provides this definition of an autodialer:
equipment which has the capacity–
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.
Justice Sotomayor wrote the majority opinion for the Court. She framed the issue this way:
Facebook argues the clause “using a random or sequential number generator” modifies both verbs that precede it(“store” and “produce”), while Duguid contends it modifies only the closest one (“produce”). We conclude that the clause modifies both, specifying how the equipment must either “store” or “produce” telephone numbers. Because Facebook’s notification system neither stores nor produces numbers “using a random or sequential number generator,” it is not an autodialer.
Justice Sotomayor begins by citing Justice Scalia’s book with Bryan Garner. She discusses the series-qualifier canon:
Congress defined an autodialer in terms of what it must do (“store or produce telephonenumbers to be called”) and how it must do it (“using a random or sequential number generator”). The definition uses a familiar structure: a list of verbs followed by a modifying clause. Under conventional rules of grammar, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (Scalia & Garner) (quotation modified).The Court often applies this interpretative rule, usually referred to as the “series-qualifier canon.”
And the Court applies the “series-qualifier” canon to the Section 227(a)(1) of the TCPA:
Here, the series-qualifier canon recommends qualifying both antecedent verbs, “store” and “produce,” with the phrase “using a random or sequential number generator.” That recommendation produces the most natural construction, as conf
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