Archive for Language and the law

Annals of conjunction

The Supreme Court released its opinion in Lockhart v. United States, where

Petitioner Avondale Lockhart pleaded guilty to possessing child pornography in violation of 18 U. S. C. §2252(a)(4). Because Lockhart had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence enhancement provided in §2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the District Court applied the mandatory minimum. The Second Circuit affirmed.

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And or ou

As we've discussed more than once (e.g. "The billion-dollar conjunction", 12/30/2015), sometimes it's not clear how to interpret the choice between and and or, even when a lot depends on the answer. Adding to the list of such examples, R.A. sends in an example where English and has been translated as French ou.

This seems to be a matter of random stylistic preference rather than a difference between the languages, in that the English version might have chosen orand (or?) the French version might have chosen et, without changing the intended interpretation in either case. But at the same time, either choice in either language might perversely be given an unintended interpretation. Lawyers beware…

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This World War II American propaganda poster speaks for itself:

A poster of WWII era discouraging the
use of Italian, German, and Japanese.

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The billion-dollar conjunction

Josh Kosman, "Caesars may sink because of allege $3B typo", New York Post 12/14/2015:

Leon Black’s Apollo Global Management is now defending itself against an alleged typo that could cost up to $3 billion. […]

Caesars in its 2008 debt agreement set conditions that would need to be met so it could strip the guarantee between the parent company and the gaming-operating subsidiary.

In the debt agreement, it says it can strip the gaming subsidiary’s guarantees if: A) it stopped being a subsidiary of the parent, B) the company transferred substantially all of its assets out of subsidiary, “AND” C) it essentially prepaid the bonds.

“There’s no way they satisfied all three conditions,” a source close to the case said, referring to when Caesars stripped the guarantee transferring some of its best assets to newly created divisions and put the subsidiary in bankruptcy.

Caesars claims it meant to say “OR.”

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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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