Archive for Language and the law

In the European Union or out?

Over the past week there has been a change in the officially ordained wording of the referendum question about European Union membership that will be put before the people of the United Kingdom some time over the coming two years. On the face of it, the change seems trivial or even pointless, because it does not allow for any new decision to be made by the voters. They will vote either to continue the UK's membership in the EU or to discontinue it. But the change provides a very clear and useful example showing the real-life importance of a linguistic distinction.

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Fun with commas

For your reading pleasure this morning: Kenneth Adams, "Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.", 16 Scribes J. Legal Writing 45 (2014–15):

In its opinion in American International Group, Inc. v. Bank of America Corp., the United States Court of Appeals for the Second Circuit invoked the principle of construction that this article refers to as “the comma test under the rule of the last antecedent”: if in a sentence a series of nouns, noun phrases, or clauses is followed by a modifier and the modifier is preceded by a comma, the modifier applies to the entire series, not just the final element in the series.

But as the opinion inadvertently demonstrates, that principle of construction is inconsistent with English usage and should be rejected. The opinion also serves as a reminder that judges cannot always be counted on to understand how ambiguity operates; courts should permit expert-witness testimony on ambiguity.

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"Linguists have a name for this kind of analysis"

Gordon Smith is enthusiastic about a recent opinion of the Utah Supreme Court, as he explains in "Corpus Linguistics in the Courts (Again)", The Conglomerate 8/14/2015:

Yes, yes, yes!

The point at issue is important and ubiquitous in legal argumentation, and his blog post explains the reasons for his (well justified) enthusiasm at least as well as I could. So go read it!

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We'll just have to pass it…

In the majority opinion of King v. Burwell, Chief Justice Roberts had some harsh words for the "inartful drafting" of the Affordable Care Act, which led to the difficulty in interpreting the phrase "an Exchange established by the State." Roberts wrote:

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act's passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through "the traditional legislative process." Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as "reconciliation," which limited opportunities for debate and amendment, and bypassed the Senate's normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means.'"). 

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Misleading headline

When you read this Radio Free Asia headline, what do you think?

"China Holds Two Activists Linked to Heilongjiang Shooting Death" (5/20/15)

Here's the photograph that accompanies the article:

Activist Wu Gan stages protest outside Jiangxi High Court, May 19, 2015.
Photo courtesy of Boxun.

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Language of law, Chinese and English

Bill Hennessey is a retired professor of law, including international law and the law of the sea, at the University of New Hampshire School of Law.  He wondered whether I have been following the Law of the Sea issues surrounding the building of Chinese bases on shoals in the South China Sea (SCS).  (I call it the Southeast Asian Sea [SEAS].)  I certainly have been following China's building of artificial islands on coral shoals in contested waters far from its own shores, but much closer to the shores of other countries.  I have not, until now, thought about the linguistic aspects of the legal issues.

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Anaphoric definiteness in the ACA

The following is a guest post by Graham Katz. It makes an interesting point (which I haven't seen elsewhere) about the phrase that's at the center of King v. Burwell: "an Exchange established by the State".

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SCOTUS: A fish is not a "tangible object"

At least, a fish is not a "tangible object" in the context of 18 U. S. C. §1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

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Legal lexicography

Eugene Volokh ("What does 'exposes' in '[a]ny person who abuses, exposes, tortures, torments, or cruelly punishes a minor' mean to you?", Washington Post 1/2/2015) considers the case of Douglas James Myers, who was clocked driving at 112 mph, "weaving all over the road and going into the ditch or median with all four tires", with a blood alcohol level of 0.131 and four small children in the car:

Myers pleaded guilty to driving under the influence (his third offense); but he was also charged for violating S.D. Codified Laws 26-10-1, which provides that “[a]ny person who abuses, exposes, tortures, torments, or cruelly punishes a minor” is guilty of a felony. He argued that the term “expose” in the law was unconstitutionally vague, but the trial court rejected the argument and found him guilty, sentencing him to five years in prison on the “expose” charge.  

Myers appealed to the South Dakota Supreme Court, which rejected his argument […]

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Bavarian Rhapsody

"La Bavière veut imposer aux étrangers de parler allemand, même « en famille »" Le Monde

L'Union chrétienne-sociale (CSU) qui dirige la Bavière depuis des décennies veut empêcher les étrangers de parler une autre langue que l'allemand, même en famille….  C'est d'autant plus risible que les Bavarois eux-mêmes utilisent un allemand bien éloigné des standards officiels et parfois même peu compréhensible dans le reste de l'Allemagne.

The CSU, which has governed Bavaria for decades, wants to prevent immigrants from speaking a language other than German, even at home…. It's even more ridiculous that the Bavarians themselves use a variety of German quite far from the official standard, and often nearly incomprehensible in the rest of Germany.

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Plebgate judgment

I spent Monday, November 24, in courtroom 13 of the Royal Courts of Justice in London. For a small part of that time, I testified as an expert witness; for the rest of the day, I was an interested spectator.

What was the occasion? Peter Walker explains ("Andrew Mitchell and the Plebgate affair explained for non-Brits", The Guardian 11/27/2014):

It all began on the evening of 19 September 2012 when Mitchell, then chief whip of the government – effectively the enforcer for the ruling party, the person who keeps discipline and makes sure ministers vote as they are ordered – tried to cycle out of Downing Street. He was in a rush, en route to an engagement, and wanted to ride directly out of the main vehicle gates.  

But to Mitchell’s displeasure, he was told to dismount and walk his bike through a pedestrian entrance. He argued with the officer on duty, PC Toby Rowland and, according to the officer’s account of the exchange, told him:  

Best you learn your fucking place – you don’t run this fucking government – you’re fucking plebs.  

All this was gleefully recounted in the next day’s Sun newspaper, and even though Mitchell denied using the word “plebs”, the continued bad publicity led him to resign just over a month later.

The row has rumbled on ever since, including minute examination of CCTV footage from the evening in question, and culminating in a legal case which finished on Thursday that saw Mitchell sue the Sun for libel over its story, while at the same time Mitchell was sued by PC Rowland for calling the policeman a liar.

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Rule of / by law

Because it has been very much in the news in recent days, the question of how to translate the Chinese term fǎzhì 法治 (lit., "law-rule / govern") has come up.  Should it be "rule of law" or "rule by law"?

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Patchwriting by Rick Perlstein (and Craig Shirley)

Alexandra Alter, "Reagan Book Sets Off Debate", NYT 8/4/2014:

Mr. Perlstein’s new 856-page book, “The Invisible Bridge: The Fall of Nixon and the Rise of Reagan,” which comes out Tuesday, is proving to be almost as divisive as Reagan himself. It has drawn both strong reviews from prominent book critics, and sharp criticism from some scholars and commentators who accuse Mr. Perlstein of sloppy scholarship, improper attribution and plagiarism.

The most serious accusations come from a fellow Reagan historian, Craig Shirley, who said that Mr. Perlstein plagiarized several passages from Mr. Shirley’s 2004 book, “Reagan’s Revolution,” and used Mr. Shirley’s research numerous times without proper attribution.

In two letters to Mr. Perlstein’s publisher, Simon & Schuster, Mr. Shirley’s lawyer, Chris Ashby, cited 19 instances of duplicated language and inadequate attribution, and demanded $25 million in damages, a public apology, revised digital editions and the destruction of all physical copies of the book. Mr. Shirley said he has since tallied close to 50 instances where his work was used without credit.

The controversy has three different parts: Perlstein's use of online notes instead of notes within the published book; the ethical status of Perlstein's use of material from Shirley's book, with or without attribution; and the legal status of that usage.  The most problematic of the accusations seem to be instances of what has been called "patchwriting", and that's the aspect of the controversy that I want to focus on.

My conclusion will be that Perlstein did indeed take idea-combinations and associated word-choices and word-sequences from Shirley; and he sometimes did this without specific attribution; but what he did seems to be within the normal boundaries of research methods for narrative histories, as indicated by the fact that Shirley did quite similar things with his own sources.

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