Disclosure: The author worked at Jones Day with the attorneys representing petitioner, prior to the firm being involved in this case.
On Tuesday, the U.S. Supreme Court managed to enliven an argument about statutory interpretation—one hour about one word—with dares, nature imagery, and barbs, albeit directed at a dictionary.
If the justices' questions and tone are accurate indicators, the petitioner in Taniguchi v. Kan Pacific Saipan, Ltd. is headed for a win. The case comes from the Northern Mariana Islands via the U.S. Court of Appeals for the Ninth Circuit.
The word at issue in the case is interpreter. Michael Fried, a Jones Day partner representing petitioner Taniguchi, argued that an interpreter deciphers the spoken word. Dan Himmelfarb, a Mayer Brown partner representing respondent Kan Pacific, would also put written translation under the interpreter's umbrella.
This dispute matters because the winning party in federal litigation can seek costs listed in 28 U.S.C. § 1920, including costs for interpreters. The winner wants to maximize recovery through more covered items, while the loser wants the opposite.
Several justices, in different ways, expressed skepticism about written translation by interpreters. Justice Scalia pointed out that the fly page of a foreign-language book translated into English will say "John Smith, Trans.," not "John Smith, Int."
Justice Alito asked Himmelfarb, of 1,000 references to the word interpreter in news articles, how many would be about written translation? After Himmelfarb guessed that more than fifty percent may refer to the spoken word only (a variation on Alito's question), Justice Kagan quipped, "You are like daring Justice Alito to go do this now." (The current transcript, subject to final review, attributes this remark to Justice Sotomayor, but this is an error.)
In her own questioning, Kagan used imagery, acknowledging that there may be some hard cases, but "the fact that there are some few minutes in every 24-hour period where it's hard to say that something is night or day does not mean that there is no night and that there is not day. And that seems to me what the question is here."
On the other hand, Justice Sotomayor highlighted precedent for awarding written translation costs. "[T]hat's what the courts have been doing," she explained, "and the world hasn't crashed." Or, as Justice Breyer put it, a court may decide to "let sleeping dogs lie."
When Himmelfarb indicated that Black's Law Dictionary defines interpreter to include both written and spoken translation, Justice Scalia jumped in, suggesting that Black's simply incorporated the prior case law. Noting that its editor, Bryan Garner, has been his co-author, "I feel obliged to spring to his defense," Scalia said. Scalia also scoffed at another dictionary relied on by Kan Pacific as "not...very good," observing that it equates "imply" and "infer."
Although justices, at times, play devil's advocate, the strong overall sense of the Taniguchi argument was that the Court will construe interpreter narrowly, as a night and day issue.
Circuit Split Watch: Lost in Translation (prior coverage, linked here)