Archive for Language and the law

Legal scope again

According to 35 USC § 271 (a):

Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

A petition for a writ of certiorari, dealing in part with the semantic interpretation of this sentence, is now pending before the Supreme Court. The critical question is how to interpret the adverbial adjunct "within the United States" as applied to the phrase "offers to sell". Does it constrain the location of the offering, or the location of the selling, or perhaps both?

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The Slants v. the USPTO

Kat Chow, "Asian-American Band Fights To Trademark Name 'The Slants'", NPR codeswitch 10/20/2013:

The Slants, a six-member band from Portland, Ore., calls their sound "Chinatown Dance Rock" — a little bit New Order, a little bit Depeche Mode. They describe themselves as one of the first Asian-American rock bands. Their music caters to an Asian-American crowd, they've spoken at various Asian-American events, and they're proud of all of it.

But the Slants have been duking it out with the United States Patent and Trademark Office (PTO) over the past four years because of their name. The PTO refused the band's two trademark applications, saying that "slants" is a disparaging term for people of Asian descent. Now the band plans to take their case to a federal circuit court.

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Stupid police investigation of racist language

As I have frequently pointed out here on Language Log before, the contrast between the constitutionally protected free speech of the USA and the many legal restraints on speech in the UK is really striking. In the latest incident, a British lord posted a tweet with a photo of three Chinese toddlers dressed in watermelon-rind costumes. Two of the kids look delighted, but the one in the center is crying. To accompany the picture the noble lord tweeted a remark that I will position below the jump, because I don't want those of a nervous disposition to see it. His remark was the subject of a police investigation. The question was whether it was so racist that it should be regarded as violating the criminal law. If you think you can bear it, take a deep breath and read on.

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What did Justice Scalia mean?

Jennifer Senior, "In Conversation: Antonin Scalia", New York, 10/6/2013:

Q: Had you already arrived at originalism as a philosophy?

A: I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

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Misreading like a lawyer

Jill Anderson, "Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation", Harvard Law Review, Vol. 127, 2014, Forthcoming:

Statutory interpretation dilemmas arise in all areas of law, where we often script them as scenes of conflict between a statute’s literal text and its animating purpose. This article argues that, for an important class of disputes, this supposed discord between text and purpose is an illusion. In fact, lawyers are overlooking ambiguities of literal meaning that align well with statutory purpose. The form of ambiguity in question inheres not in individual words, but at the level of the sentence. What triggers a split in readings are verbs that linguists classify as "opaque," which are perfectly common in legal texts: intend, impersonate, endeavor, and regard are among them. In ordinary speech we resolve their dual readings unconsciously and without difficulty. In law, however, our failure to notice multiple readings of ambiguous language has left a trail of erroneous judicial determinations and doctrinal incoherence across a broad swath of law, from disability rights to white collar crime to identity fraud to genocide. Drawing on examples from these areas, this Article uses the tools of formal semantics to expose the ambiguity of opaque constructions and to make visible the family resemblance among the ways we misinterpret them. It then turns to the question of why lawyers misread and what we can do about it. The converging literatures of language development and the psychology of reasoning suggest an answer. When we analyze opaque sentences explicitly as statutory interpretation requires (as opposed to spontaneously in conversation), we may be particularly vulnerable to cognitive bias. Factors peculiar to law tend to amplify and propagate this bias instead of dampen and contain it, but they may also point the way toward more sophisticated legal reading.

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Secret love that sticks like glue

For the last week, the whole Chinese world was transfixed by the trial of Bo Xilai, the fallen star of the Chinese Communist Party.  Among the lurid details of crime and corruption that emerged, perhaps none has elicited greater excitement than Bo's revelation that his wife, Gu Kailai (already convicted of the murder of a British businessman named Neil Heywood), and his "top cop", Wang Lijun (already convicted of treachery and treason), carried out an illicit love affair.

The expressions Bo used to describe the romance between his wife and his chief of police have challenged the translation skills of China's journalists.

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Scalia's argle-bargle

Justice Antonin Scalia's dissent in the DOMA decision had some harsh words, to say the least, for the majority opinion. But the word everyone has been fixated on is rather light-hearted: argle-bargle.

As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by '"bare . . . desire to harm"' couples in same-sex marriages.

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But for …

From reader V.D.:

Justice Kennedy got himself tangled in a quasi-double negative in today's DOMA decision:

Windsor suffered a redressable injury when she was required to pay a tax from which, in her view, she was exempt but for the alleged invalidity of § 3 of DOMA.

Either "but for" or "invalidity" is wrong.  If DOMA is invalid, she is exempt from the tax.

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Innocent face

This is the allegedly libelous remark on Twitter that might cost Sally Bercow tens of thousands in damages:

Why is Lord McAlpine trending? *Innocent face*

How (you might ask) could it possibly be libelous simply to ask a question about why Lord McAlpine, after twenty years of living in retirement, was suddenly a hot topic on Twitter?

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Is Christmas next?

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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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