The So-Called Series-Qualifier Canon

Crews, Adam G. | September 10, 2021

In Facebook, Inc. v. Duguid, a near-unanimous Supreme Court forcefully applied the so-called series-qualifier canon, which posits (among other things) how postpositive modifiers normally attach to certain antecedents. With this canon, the Court identified a presumptive natural reading of the statute at issue, and that presumption framed the rest of the Court’s analysis. Concurring only in the judgment, Justice Alito agreed with the Court’s interpretation but expressed concern over the majority’s heavy reliance on the canon. In Justice Alito’s view, the majority used the canon too much like a rule, despite intuitive reasons to doubt its force.

Justice Alito’s intuitions were exactly right. The so-called series-qualifier canon is an unjustified revision to a principle from a single case in the 1920s—a case that itself materially distorted the real series-qualifier principle that America borrowed from England. This Essay tells that story. Drawing on formal linguistics and interpretive history, I explain that a series-qualifier principle initially served a much smaller role than the contemporary series-qualifier canon, a supposed “rule” that does not necessarily describe ordinary English usage or processing. By relying on this contemporary misstatement and not on the true series-qualifier principle, the Court in Facebook committed a serious process error and potentially set up lower courts to approach interpretation in a way that will undermine textualism’s core commitments and goals.


Appellate Counsel, Federal Communications Commission. Thanks to the Northwestern University Law Review Online staff for excellent work on this Essay, which I dedicate to the memory of Dr. Patricia S. Burton, Ph.D. All views are my own and do not necessarily represent the views of the United States, my agency employer, or any individual FCC commissioner.

Copyright 2021 by Adam G. Crews

Cite as: Adam G. Crews, The So-Called Series-Qualifier Canon, 116 Nw. U. L. Rev. Online 198 (2021),