Sherley v. Sebelius: Interpreting the statute’s use of the present tense

This, belatedly, is the third installment of my discussion of the court-of-appeals decision in Sherley v. Sebelius, which reversed the lower court’s conclusion that the federal government is forbidden from funding research on human embryonic stem cells. The first two installments are here (part 1) and here (part 2); you should read them first if you haven’t done so already or if they’ve faded from your memory. (As before, I’ll note that I represent the Genetics Policy Institute as an amicus curiae in the case, supporting the government.)

One of the points of disagreement between the majority opinion and the dissent was over how to interpret the Dickey-Wicker Amendment’s use of the present tense (“research in which a human embryo or embryos are destroyed…”). The dispute arises because a line of stem cells derived from a particular embryo can be kept in existence indefinitely and as a result can provide stem cells for research that is performed many years later. For example, under the Bush-administration guidelines, federal funding was available only for research projects that used stem cells that had been derived before August 9, 2001, when the Bush policy was announced. And NIH maintains a registry of stem-cell lines that qualify for use in federally-funded research. There is therefore a good chance that an applicant seeking NIH funds will use stem cells from a preexisting cell line.

The majority rejected the plaintiff’s argument that the government may not fund research using such a preexisting line of stem cells, and in doing so the  Dickey-Wicker Amendment’s use of the present tense played a big part:

Whoa

I’m late in learning about this; it apparently went public  back in May, but doesn’t seem to have attracted much blogospheric notice.

Mark Davis, the proprietor of the Corpus of Contemporary American English (COCA) and the Corpus of Historical American English (COHA), has made another corpus available via the same interface as COCA and COHA. This one’s a little bit bigger though.

155 billion words, 62 billion of them the 1980s-2000s.

Billion with a b.  Bill-yun.

Watch this space

We seem to be getting higher-than-usual traffic today, which I assume is do the mention in Language Log today of my brief in FCC v. AT&T. So this seems like a good time to say that although I’ve been shamefully delinquent in carrying out my duty as blogger to post new material here (a process technically known as “feeding the motherfucker”), I repent of my slothful ways and hope to start posting again more frequently.

Sherley v. Sebelius: What does “research” mean?

This is the second installment of my look at the recent court of appeals decision in Sherley v. Sebelius, the litigation over federal funding of research on human embryonic stem cells (hESCs). The first installment, which sets the stage, is here. And before I begin, let me repeat that I represent the Genetics Policy Institute as an amicus curiae in support of the government in the case, and that some of what I say here will be adapted from my brief.

I ended my last post by noting that one of the points of disagreement between the majority and the dissent was about whether the word research could be understood to denote a “discrete project.” The majority concluded that the word as used in the Dickey-Wicker Amendment could in fact be understood in that way—an understanding under which the focus is on the specific work for which funding is sought:

NIH funding decisions are forward-looking, requiring the NIH to “determine  whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected….The definition of research is flexible enough to describe either a discrete project or an extended process, but this flexibility only reinforces our conclusion that the text is ambiguous. [paragraph break deleted]

A closer look at Sherley v. Sebelius: Introduction

The recent decision in Sherley v. Sebelius—the stem-cell case—turns to a great extent on questions of textual interpretation. And the dissent in particular discusses those questions at length, and gets just about everything wrong. This is the first in what will be a series of posts discussing the textual issues and pointing out some of what I consider to be the dissent’s errors.

Two things before we begin. First, a disclosure: I represent the Genetics Policy Institute as one of the amici on the government’s side in this case, and portions of these posts will be adapted from my amicus brief. Second, a point about terminology. Although the Sherley case is often referred to as dealing simply with “stem-cell research,” it actually deals with research involving human embryonic stem-cells. (hESCs). There are other types of stem cells for which research funding is not restricted. (For general background on stem cells, you can start here or here.)

Let’s start, naturally, with the statute. The Dickey-Wicker Amendment has appeared as a rider to annual appropriations bills for the Department of Health and Human Services every year since 1995. It provides:

Stem-cell appeal decided: government (and science) wins

In Sherley v. Sebelius, the stem-cell case in which I filed a brief, the court of appeals has overturned the injunction against federal funding of research on human embryonic stem cells. The decision is available here.

The decision was 2-1, and both the majority opinion and the dissent deal with a variety of language-related issues.

More later.

A linguist walks into an app store… (part 1)

You’re no doubt aware by now that Apple and Microsoft have hired linguists as expert witnesses in their battle before the Patent and Trademark Office about whether Apple can trademark the expression App Store. Robert Leonard is testifying (actually, report-ifying) for Apple and Ron Butters is doing the same for Microsoft. Their reports are available here (Leonard) and here (Butters), and the electronic docket for the case, with links to the other filings, is here. (Warning: a few of the links seem to be broken.)

The issue that Leonard and Butters are opining about is whether the expression App Store is a proper name that distinctively identifies the particular location in cyberspace where one goes to get apps for one’s iPhone, as Apple contends, or whether it is a generic term for stores where one gets apps of any kind, as Microsoft argues.

I’m not going to comment here on who I think should win this fight, but I do want to make a few observation about some broader (and narrower) issues, starting with a look at how genericness (a/k/a genericity) is regarded in trademark law on the one hand and in linguistics on the other.