Archive for Language and the law

The plebgate plot thickens

It is only fair to Andrew Mitchell M.P., formerly holder of the important political office known as government chief whip, that I should return briefly to the plebgate incident. When I last wrote about it (here) I said it was "morphing from one about a bad-tempered upper-class put-down into a case of a cabinet member telling lies about a law-enforcement matter, and slandering armed police officers who work for his government and may have to put their lives on the line protecting it from terrorist attack". Well, it has morphed more since then. It turns out that some police officers lied about the incident. Three have actually been arrested, and seven more are being investigated. And this morning Mitchell is reported as having filed a libel suit against the newspaper that broke the story.

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More on what "the" means

Neal Goldfarb, "The Recess Appointments Clause (Part 1)", LAWnLINGUISTICS 2/19/2013:

The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.

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What "the" means

According to Article 2, Section 2, Clause 3 of the U.S. Constitution,

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

According to a recent decision of the U.S. Court of Appeals for the D.C. Circuit, "the term 'the Recess' in the Recess Appointments Clause refers to the intersession recess of the Senate", so that this option is not available "during intrasession 'recesses,' or breaks in the Senate’s business when it is otherwise in a continuing session". The court's argument is a linguistic one:

When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. [...] Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.


It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

The result is of some political consequence, since it invalidates decisions made by the National Labor Relations Board during 2012, on the grounds that several of its members in this period were intra-session recess appointments. (These were recess appointments because some members of the Senate, opposed to the NLRB on principle, have made it clear that they will use Senatorial privilege and/or filibuster techniques to block any in-session appointments to that board.)

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The New Yorker finds the U.S. Constitution ungrammatical

Jeffrey Toobin, "So you think you know the second amendment?", The New Yorker 12/18/2012:

The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Coming from The New Yorker's house legal analyst, this is shocking.

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Plebgate: morphing into mendacity

As always, the cover-up is worse than the crime. In the Andrew Mitchell story, the protagonist is still refusing to admit that he said plebs (the fucking stuff seems to have been conceded days ago: foul-mouthedness is not the issue, apparently; plebs and morons are the issue). He asserts, vaguely, that he did not use the words attributed to him. [Added September 25: As Polly Toynbee notes, his refusal to actually claim that he did not say plebs leads us to believe that he did say it: he daren't risk a perjury charge, which is why his apologies and denials are phrased with such extreme generality.] But that means the story is morphing from one about a bad-tempered upper-class put-down into a case of a cabinet member telling lies about a law-enforcement matter, and slandering armed police officers who work for his government and may have to put their lives on the line protecting it from terrorist attack (for that is why the police outside number 10 Downing Street, unusually for Britain, carry firearms).

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"I splork for infinite splorks"

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New light from Toobin on the oath flub story

A new book by Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court, is published today. It opens with a prologue telling the story of the Obama inaugural oath flub, first told on Language Log in Ben Zimmer's piece "Adverbial placement in the oath flub" and the follow-up a day later in "Rectifying the oath flub." Toobin reveals two bits of information that I was not aware of. First, a complete script of the oath, showing exactly where the breaks would come so that Obama would know when to do his repetitions, was sent to Obama's staff as a PDF but never reached the president or anyone close to him, so when Chief Justice Roberts stood facing him to administer the oath, there was a script that Obama had not seen, but neither of the two men knew that. Second, although Roberts had worked over that script, he chose to rely on his famously prodigious memory: he waved away the card that was offered to him with the script on it, and the chance to do a rehearsal: "That's OK, I know the oath," he said. And thus it was that when two men met to perform their extraordinarily important ritual, they were both without scripts and had never rehearsed together. The rest is history.

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RIchard Pérez-Peña, "Student Paper Editors Quit at University of Georgia", NYT 8/16/2012:

Much of the staff of the University of Georgia’s student newspaper, including the top editors, resigned Wednesday, claiming interference, even censorship, by the nonstudent managers hired to oversee it.

Polina Marinova, the editor in chief of the newspaper, The Red and Black, said in a statement that “recently, editors have felt pressure to assign stories they didn’t agree with” and “take ‘grip and grin’ photos.” [...]

The walkout came after Ms. Marinova obtained a draft memo written by a board member that contained proposed guidelines for the newspaper. The memo listed, among “bad” news that was to be played down, “content that catches people or organizations doing bad things.”

The author, who was not identified, added, “I guess this is ‘journalism’ ”

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Jonah Lehrer, Bob Dylan, and journalistic unquotations

I was shocked to read that Jonah Lehrer had quit his job at the New Yorker, after admitting that he fabricated some quotations from Bob Dylan in his recent book Imagine: How Creativity Works. I was shocked because what Lehrer did is consistent with the standard behavior of journalists, though perhaps not with the official story of what this behavior is supposed to be like. But the actual practice, in which journalists often put between quotation marks whatever representation of a source's opinions they feel that their narrative needs, was validated by judicial decision in a famous case involving another New Yorker writer 25 years ago — someone who is still on the magazine's staff.

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Not true that they cannot say they aren't?

Levi Montgomery writes to me:

I have read the question in this report (TSA Let 25 Illegal Aliens Attend Flight School Owned by Illegal Alien, CNS News, 18 July 2012) at least a dozen times now, and I'm not sure which answer means what (although I freely admit the intent is clear, both from the questioner and from the answerer). I thought you'd like to see it.

Stephen Lord, who is the GAO's director of Homeland Security and Justice Issues, testified about the matter Wednesday in Rogers' subcommittee. Rogers asked him: "Isn't it true that, based on your report, the Transportation Security Administration cannot assure the American people that foreign terrorists are not in this country learning how to fly airplanes, yes or no?"

Mr Lord responded: "At this time, no."

Ye gods, that sort of crazy multiple negation makes me afraid, very afraid, of having to take the witness stand.

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Scalia and Garner on legal interpretation

Antonin Scalia and Bryan Garner have recently (June 19) published Reading Law: The Interpretation of Legal Texts, a 608-page work in which, according to the publisher's blurb, "all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained".

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The broccoli horrible

I was first struck by the expression "parade of horribles" back in April 2008, when then-Senator Barack Obama used it to describe testimony by General David Petraeus and Ambassador Ryan Crocker about what might happen if U.S. forces withdrew from Iraq too hastily. I wrote a Language Log post about it, tying it to another expression that was in the news at the time: "false terribles," used by Rob Lowe to describe things that his nanny accused him of doing. "False terribles" turned out to be pretty much a one-off, but "horribles," usually of the parading variety, have shown up again and again in legal discussions, most recently in the Supreme Court's health care decision on Thursday — which featured, in Justice Ginsberg's pungent opinion, a "broccoli horrible" (referring to the slippery-slope argument that if government can make you buy health insurance, they might someday make you buy broccoli, too).

For a full explanation of how the legal putdown took shape, read my latest Boston Globe column (online now, in print on Sunday). I trace how "the parade of horribles" emerged as a satirical Independence Day tradition in mid-19th century New England, then made the metaphorical jump into discussions of judicial argumentation c. 1921, thanks to the legal scholar Thomas Reed Powell. Since then, the expression has lived a double life: with various shore towns in Massachusetts and Rhode Island keeping the actual "parades of horribles" going, and lawyers and judges debating over figurative ones. Fortunately, I was able to get The Broccoli Horrible into the column under the wire, noting that it would make a pretty awesome band name.

[Update, 7/4: For further documentation, see my followup Word Routes column.]

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Annals of privacy

Daniel Cressey, "Fisheries science falls foul of privacy rules", Nature 6/6/2012:

A little-noticed tweak to one of the European Union’s many rules and regulations is leaving fisheries scientists struggling to access vital data. [...]

At the heart of the problem is information from devices called Vessel Monitoring Systems, which are attached to many European fishing boats to record their position, direction and speed. From these data, the boats' fishing patterns can be reconstructed, allowing researchers to assess fishing activity and, for example, examine the environmental impact on specific areas.

In 2009 a new European Commission rule was brought in, restricting who could access what data within the EU. This rule took some time to filter through, says Hinz, but it is now becoming apparent that the very detailed fisheries data needed by some academics are no longer available. The bodies in charge of the data will only release information that has been aggregated over areas measuring about 5.5 kilometres to some academics, which is not detailed enough for many studies, Hinz says. [...]

The commission adds that the body charged with overseeing the use of data and privacy within the EU, the European Data Protection Supervisor (EDPS), recently ruled that information from vessel monitoring systems is classed as personal data in some circumstances. This means that the information may be subject to data protection rules, making it more difficult to release it to scientists in a format in which individual boats may be identifiable.

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Big Inaccessible Data

John Markoff, "Troves of Personal Data, Forbidden to Researchers", NYT 5/21/2012:

When scientists publish their research, they also make the underlying data available so the results can be verified by other scientists.

(I wish this were generally true…)

At least that is how the system is supposed to work. But lately social scientists have come up against an exception that is, true to its name, huge.

It is “big data,” the vast sets of information gathered by researchers at companies like Facebook, Google and Microsoft from patterns of cellphone calls, text messages and Internet clicks by millions of users around the world. Companies often refuse to make such information public, sometimes for competitive reasons and sometimes to protect customers’ privacy. But to many scientists, the practice is an invitation to bad science, secrecy and even potential fraud.

For those who don't care much about science, and oppose data publication on the basis of some combination of beliefs in corporate secrecy, personal privacy, and researchers' "sweat equity", here's a stronger argument: lack of broad access to representative data is also a recipe for bad engineering.  Or rather, it's a recipe for slow to non-existent development of workable solutions to the the technical problems of turning recorded data into useful information.

At the recent DataEDGE workwhop in Berkeley, as well as at the recent LREC 2012 conference in Istanbul, I was unpleasantly surprised by the widespread lack of awareness of this (in my opinion evident) fact.

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It depends on what "the" means …

Semantics in the John Edwards trial (James Hill and Beth Lloyd, "John Edwards Defense Relies on Definition of 'The'", Good Morning America 5/13/2012):

Not since Bill Clinton challenged the definition of "is" has so much hinged on a very short word.

John Edwards appears to basing much of his defense, which begins today in a North Carolina courtroom, on the legal interpretation of the word "the." [...]

The statute governing illegal receipt of campaign contributions "means any gift, subscription, loan, advance, or deposit of money… for the purpose of influencing any election for federal office."

The words "the purpose" suggests that in order for a conviction, the sole reason for the money would have to be to finance a presidential campaign.

Edwards' legal team has argued … that his main reason for hiding Hunter was to keep her secret from his wife, Elizabeth.

Prosecutors, however, are arguing the law should be interpreted to mean "a purpose," meaning use of the donations does not have to be solely for a political campaign.

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