Have you wondered why you’re getting so many unsolicited texts and robocalls these days? I may be partly to blame.

But let’s stick a pin in that for a moment and go back to a U.S. Supreme Court argument in 1823. Henry Wheaton, then the court’s official Reporter of Decisions, was up at counsel table in a case that turned on the meaning of a single pronoun: them. When he took the lectern, he dropped a bit of Latin on the justices: “Fiat relatio proximus antecedenti”—“Let the reference be made to the nearest antecedent.” Without bothering to translate it, he was pressing what we now call the last-antecedent canon.

Pronouns like he, she, it, and they (and their inflected forms) need antecedents. So do pointing words such as this and that. This simple fact creates syntactic ambiguity in both everyday speech and legislative drafting.

Who are she and her in this sentence?

Jane told Ellen that she needed to submit her essay within three days.

Here are the four options:

• Jane told Ellen that Ellen needed to submit Ellen’s essay within three days.

• Jane told Ellen that Jane needed to submit Jane’s essay within three days.

• Jane told Ellen that Jane (acting as Ellen’s agent, say) needed to submit Ellen’s essay within three days.

• Jane told Ellen that Ellen (acting as Jane’s agent, say) needed to submit Jane’s essay within three days.

If you apply the last-antecedent canon in its original, narrow domain, you’d pick the first reading: she and her refer to the nearest plausible antecedent, Ellen.

Over time, though, lawyers and judges started stretching the canon beyond words that actually have antecedents. Soon, all sorts of modifiers were being treated as if they had “last antecedents.” The result was a growing tendency to read trailing phrases as modifying only the final item in a series, even when ordinary English suggested otherwise.

That one conceptual slip—calling things antecedents that weren’t antecedents at all—combined with the canon’s hardening into a stock rule, started to distort interpretation. Courts began misreading sentences like this:

Please bring me any toy, doll or board game in the closet over there.

What does in the closet over there modify? Just board game? Is the idea that any toy or doll will do, wherever located, but a board game must be in the closet?

Most competent speakers would hear the sentence as requiring that all three types of items be in that closet. They’d be strongly inclined to hear it as modifying the whole series of nouns—toy, doll or board game—not just board game. To insist that it attaches only to the last noun simply because we’ve baptized a convenience rule as the “rule of the last antecedent” is to override ordinary English in the name of a slogan. Fluent speakers would rightly resist that move.

When Justice Antonin Scalia and I were cataloging the canons for Reading Law about 15 years ago, we concluded that the last-antecedent canon should be confined to words that actually have antecedents. To avoid the toy-in-the-closet problem, we enshrined the grammatical principle of the carryover modifier and dubbed it the series-qualifier canon.

We cited both grammatical authority and caselaw supporting the idea that with “a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” The idea was to counteract the misapplication of the last-antecedent canon.

And of all the things we put into the book, the series-qualifier canon seemed to attract the most attention. Bloggers said we’d made it up. An article in Columbia Law Review called it a “novel” canon, and one in Harvard Law Review asked: “What sense does it make for a justice to propose a previously nonexistent canon in a book in 2012, and then for the court to discuss it in 2016, in the course of interpreting a statute from 1998?” It’s a fair question. But Scalia and I didn’t think we were “proposing” a “previously nonexistent” canon. We thought it had always been true. It was just a horse with no name.

At this point, the story became unexpectedly personal. In 2021, I found myself arguing before the Supreme Court in a case that turned on the very canon Justice Scalia and I had described years earlier. But I was against the series-qualifier canon. My friend and adversary Paul Clement was arguing for it.

The Telephone Consumer Protection Act of 1991 penalizes calls made using an autodialer. The case boiled down to a surprisingly consequential question: Did the statute regulate only machines that generated numbers randomly, or did it also cover machines that dialed numbers from stored lists?

Under the Act, a piece of equipment qualifies as an “automatic telephone dialing system” if it

“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.”

Does the adverbial using clause modify both produce and store (Clement’s argument), or just produce (my argument)?

The practical consequence was enormous. Under my reading, the statute prohibited many modern dialing systems that call numbers from stored lists. Under Clement’s reading, the statute reached only systems that use a random or sequential number generator. The difference determined the fate of countless robocall lawsuits.

I opposed the series-qualifier canon as forcefully as I could, hoping I might persuade the court that the sentence was something like an optical illusion: If I could get the justices to see the sleeping old man in the picture in addition to the young woman’s face, I might prevail with what seemed to me the more sensible reading.

But I couldn’t. Despite my “valiant effort” (the court’s words), the series-qualifier canon carried the day. My own grammatical work was cited against me six times, counting both the majority and the concurrence. The decision eliminated about 70% of liability claims for autodialed calls, I’m told by specialists in the field.

And so if you’re curious why your robocalls have increased since 2021, I may be partly to blame. Yes, I lost my only appearance thus far before the Supreme Court. But what a pleasure it was to engage in such close linguistic analysis with the justices. Oh, and by the way, Henry Wheaton lost his case in 1823—the one in which he argued for the last-antecedent canon. These things happen. But Wheaton then had to officially report his own loss!

As for the charge that Justice Scalia and I “invented” the series-qualifier canon in 2012, it’s simply not so. We just gave it a name. The canon was applied by the Supreme Court for just such a trailing modifier in 1904 (Crawford v. Burke), in 1920 (Porto Rico Railway, Light & Power Co. v. Mor), and again in 1947 (Trailmobile Co. v. Whirls). So if you’re keeping score at home, the series-qualifier canon was here long before we were—and, as my 0–1 record at One First Street confirms, it’s doing just fine without my help.

Bryan A. Garner. (Photo by Karolyne H.C. Garner)

Bryan A. Garner is the author of The Winning Brief, Garner’s Modern English Usage and Legal Writing in Plain English.