Archive for Language and the law

Disparaging trademarks

"Supreme Court rules government can't refuse disparaging trademarks", ESPN:

The Supreme Court on Monday struck down part of a law that bans offensive trademarks in a ruling that is expected to help the Redskins in their legal fight over the team name.

The justices ruled that the 71-year-old trademark law barring disparaging terms infringes free speech rights.

The ruling is a victory for the Asian-American rock band called the Slants, but the case was closely watched for the impact it would have on the separate dispute involving the Washington football team.

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Investigations, hypothetical and otherwise

In an interview yesterday with Chris Wallace, did Donald Trump's lawyer Jay Sekulow state that the president is being investigated by Robert Mueller ("Jay Sekulow on reports Bob Mueller has widened investigation", Fox News 6/18/2017)? It certainly sounds like he did:

But Chris Wallace is frustrated to find that a few seconds later, Sekulow nevertheless asserts that he didn't say any such thing.


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Defense counsel for the victim?

A truly Freudian slip in a story in the UK conservative newspaper the Daily Telegraph, speaking volumes about what goes wrong with so many rape and sexual assault prosecutions:

Camille Cosby, wife of the entertainer, issued a statement, read out by an associate on the court steps in a dramatically-delivered speech.

She attacked the judge as biased, and said the defence were "totally unethical."

The defense? Andrea Constand and the other brave women who have accused Bill Cosby (they say he drugged them so he could enjoy sexual gratification without their consent) were not in the dock, and the lawyers arguing their case were not the defense team, but the prosecutors. The Telegraph journalist, Harriet Alexander, has apparently reversed the roles of the accused's defense and the district attorney.

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The hot potato of interpretive responsibility

Below is a guest post by Elisabeth Camp.


Mark posted part of a particularly linguistically juicy exchange from James Comey’s recent Senate testimony, in which Senator Risch “drilled down” on the “exact words” attributed by Comey to Trump, noting that Trump merely expressed his “hope” that Comey could “can see [his] way clear to letting this go, to letting Flynn go.” Risch then went on to suggest, without saying, that speakers can only be held legally accountable for what they explicitly threaten or claim, and not for mere expressions of hope:

Risch: He said, ‘I hope’. Now, like me, you probably did hundreds of cases, maybe thousands of cases, charging people with criminal offenses and, of course, you have knowledge of the thousands of cases out there where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where they said or thought they hoped for an outcome?

Comey: I don’t know well enough to answer. And the reason I keep saying ‘his words’ is I took it as a direction.

In a follow-up post, Mark linked to a discussion of a 1995 ruling by the National Labor Relations Board, which though not a criminal statute, held that the mere statement of an employer’s “hopes” can indeed have a “chilling effect” and “interfere with [an employee’s] exercise of rights.” But there are further grounds for challenge as well, including workplace law on sexual harassment.

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Coercive hopes

Andrew Strom, "Workers Understand a Boss's 'Hopes'", On Labor 6/9/2017:

According to the sworn testimony of former FBI Director James Comey, President Trump pulled him into a private meeting in the oval office and said, about the FBI’s ongoing investigation of former national security advisor Michael Flynn, “I hope you can let this go.”  One question raised by the testimony is whether it was reasonable for Comey to interpret President Trump’s statement as a directive.  While labor law does not have a direct answer, the National Labor Relations Board has held that when a company president expresses his “hope” to a worker, it can be coercive.

In a 1995 case, KNTV, Inc., the company president had a private meeting with a reporter where the president told the reporter, “I hope you won’t continue to be an agitator or antagonize the people in the newsroom.”  The NLRB found that the statement was coercive in large part because it was made by the company’s highest ranking official and it was made in a meeting that the reporter was required to attend alone.  Sound familiar?

In other words, the expert agency that regularly adjudicates disputes about whether particular statements by an employer rise to the level of coercion has held that when the president of an organization expresses his “hopes” in a private conversation with a worker, those comments will likely have a “chilling effect” on the employee.

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Coral reef, dead or alive

June Teufel Dreyer noticed that the People's Daily and other official outlets refer to Okinotori as a jiāo 礁, reef, which fits her understanding of the geology involved.  The Japanese, hoping for a larger Exclusive Economic Zone (EEZ), say it is an island. The United Nations Convention on the Law of the Sea (UNCLOS) definition is that a rock incapable of sustaining life (“life” is not defined; could be human life, animals, plants, bacteria?) is not an island. The government of Japan position is that Okinotori isn’t a rock, since it is composed of coral.  Yet the character, which she assumes the Japanese use as well, clearly contains the rock element.   So, June asked, can coral be considered a rock?  In this case, there are substantial implications.

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PR push for "Voice Stress Analysis" products?

A Craigslist ad posted 20 days ago — "Seeking a Blog Writer for Voice Stress Analysis Technology":

We are looking for someone to ghostwrite blog posts and articles for a large company that specializes in computer-aided voice stress analysis technology or CVSA. We want you to primarily discuss the scientific research backing it up and the psychophysiological processes involved in implementing the technology. Basically, we want you to describe how it works, why it works, and why it is an effective technology, with everything backed up by scientific research and facts. […]

We are seeking a motivated, passionate, enthusiastic ghostwriter to craft blog articles ranging loosely from 750-900 words, that are valuable and informative to our target audience. Our audience for this client is law enforcement agencies, military, intelligence, immigration, and any other section of our government or private law practices that will be using investigative interviewing methods to screen subjects.

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"Watch the predicate"

From Jonathan Lundell:

Can't think of anyone to ask but LL… what on earth does this mean?

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Originalism 2.0

An email from Jonathan Weinberg:

I’m passing along, for whatever interest it holds, Jonathan Gienapp’s new (to my mind very good) essay on originalism in constitutional law, which I thought you might appreciate.  [(myl) Jonathan Gienapp, "Constitutional Originalism and History", Process 3/20/2017.] His focus is on originalists’ shift from their initial position that the Constitution should be interpreted in accordance with its drafters’ intentions, to their more recent position that it should be interpreted in accordance with its “original public meaning” — that is, in accordance with what a well-educated person, at the time the document was promulgated, would have understood its text to mean.  Gienapp makes the point, which I had not before thought to put that way, that while “Originalism 1.0” called for the use of historians’ tools, Originalism 2.0 — the search for original public meaning — calls instead for linguists’ tools.  As a historian, he decries this; he urges that historians’ tools are essential to determine the meaning of a document in its original historical context.

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Court fight over Oxford commas and asyndetic lists

Language Log often weighs in when courts try to nail down the meaning of a statute. Laws are written in natural language—though one might long, by formalization, to end the thousand natural ambiguities that text is heir to—and thus judges are forced to play linguist.

Happily, this week's "case in the news" is one where the lawyers managed to identify several relevant considerations and bring them to the judges for weighing.

Most news outlets reported the case as being about the Oxford comma (or serial comma)—the optional comma just before the end of a list. Here, for example, is the New York Times:

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Gorsuch v. Prepositional Phrases

In the Wall Street Journal article "Supreme Court Nominee Takes Legal Writing to Next Level," Joe Palazzolo writes that Judge Neil Gorsuch, Donald Trump's nominee for the Supreme Court, has elevated legal opinions to "a form of wry nonfiction." Not only that, "his affinity for language reveals itself in other ways. Poorly drafted laws tend to summon his inner grammarian."

"We're all guilty of venial syntactical sins. And our federal government can claim no exception," Judge Gorsuch wrote in a 2012 dissent, which went on to critique a provision of federal sentencing guidelines "only a grammar teacher could love," with its "jumble of prepositional phrases."

In a 2015 opinion, Judge Gorsuch hacked through another "bramble of prepositional phrases" to figure out how to apply a criminal law that heightens penalties for using a gun in the commission of a crime. In what might have been a first, he diagramed the sentence containing the provision in question and illustrated his opinion with it.

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Lawyers should learn linguistics, part infinity

Ken Adams, "Courtesy of the High Court of England and Wales, A Reminder that Ambiguity Is Best Left to Experts", Adams on Contract Drafting 12/11/2016:

Here’s the language at issue (emphasis added):  

Without prejudice to the provisions of paragraph 3 if all of the Conditions have not been discharged in accordance with this Schedule by the Longstop Date, then either Asda or Dooba may rescind this Agreement by giving to the other not less than ten working days written notice to that effect.

So can the Agreement be rescinded if "all of the Conditions have not been discharged" with broad scope of negation, meaning that "it's not the case that all of the Conditions have been discharged", i.e. at least one Condition has not been discharged? Or should we construe the clause with narrow scope of negation, requiring that every one of the Conditions must have failed? The deputy judge reasoned as follows:

The subject of the clause is “all of the Conditions”; the characteristic which the subject is required to have is “have not been discharged”. As a matter of strict Boolean logic, the relevant characteristic is a negative one, which must affect all of the Conditions in order to fall within the clause. […]

I agree with Asda that the formula “if all … have not …” is sometimes used to mean “if not all … have”, but I do not accept that this has become its primary meaning.

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Jordan / Qiaodan / 乔丹

There was quite a stir this week surrounding a high profile court case in China over Michael Jordan's suit to control the branding rights to his name.  The controversy is described in this NYT article by Sui-wee Lee:

"Michael Jordan Owns Right to His Name in Chinese Characters, Too, Court Rules" (12/7/16)

After reading the article, Ethan Merritt sent in some pertinent observations and questions:

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