Archive for Language and the law

"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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I am much encouraged

At last, an animal communication story involving healthy skepticism rather than vacant-eyed credulity, and human sagacity rather than wondrous communicative brilliance by our furry, finned, or feathered friends. Read on to be reassured about the intelligence of your species.

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The Second Amendment people

The controversial words about the Second Amendment that Donald Trump uttered at a rally in North Carolina yesterday are as follows:

Hillary wants to abolish
— essentially abolish —
the Second Amendment.
By the way,
if she gets to pick her judges… [long pause]
Nothing you can do, folks. [long pause]
Although the Second Amendment people, maybe there is, I don't know.

Trump defenders are denying that this was an oblique encouragement to gun-possessing supporters to shoot Mrs Clinton. His own defense is that he was suggesting people should go to the polls and vote. Utter bullshit. This is perhaps Trump's most outrageous remark yet. He couldn't have blown the dog whistle much louder without being in danger of arrest for encouraging violence.

The three key linguistic points are (1) the reference of the noun phrase "the Second Amendment people", (2) the meaning of the modal adjunct "maybe", and (3) the function of the "I don't know" on the end.

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Clamp down on English

In media reporting on current events in China, two of the most conspicuous terms one encounters are "clamp down" (qǔdì 取缔, qiābā 掐巴, qiánzhì 钳制, etc.) and "crack down" (yánlì dǎjí 严厉打击 / 嚴厲打擊 [to show how different simplified and traditional forms of the characters can be]).  There are also numerous other similar terms with related meanings in common use, such as those for "ban; forbid; outlaw; suppress; repress".  These clamp/crack downs and bans can be directed toward Islam, Christianity, feminism, human rights advocates / lawyers, any form of dissent, and so forth.  Yet no other clamp down has occasioned so much spontaneous and widespread opposition from those representing a broad spectrum of a large segment of the general population as the recent announcement of the new rules governing online video games.

"Mobile game devs are very pissed about China’s new censorship rules", by C. Custer, Tech in Asia (7/6/16)

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Corpus-based judicial opinions

Gordon Smith, "Michigan Supreme Court Embraces Corpus Linguistics", The Conglomerate 6/28/2016:

In the case of People v. Harris, the Michigan Supreme Court became the first state supreme court in the United States to embrace corpus linguistics. (I have written here about Justice Thomas Lee's concurrence in the Utah Supreme Court's Rasabout case, which is cited in this Michigan opinion.) The consolidated cases relate to the "Disclosures by Law Enforcement Officers Act" (DLEOA), which bars the use in a subsequent criminal proceeding of all "information" provided by a law enforcement officer under threat of any employment sanction. While the act does not distinguish between true and false statements, the court used corpus analysis to investigate whether "information" must be true. The majority concludes, "false or inaccurate information cannot be used against a law enforcement officer in subsequent criminal proceedings. To hold otherwise would defeat the Legislature's stated intent…."

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Parrot as witness?

Peter Holley, "Foul-mouthed parrot may be used as evidence in murder trial, prosecutor says", WaPo 6/26/2016:

Family members believe Bud, an African gray parrot, may have witnessed the shooting that left Martin Duram dead and his wife severely injured.  

They believe this because the bird’s latest phrase — the one he won’t stop shouting at the top of his lungs mimicking his owner’s voice — is a chilling one: “Don’t f—ing shoot!”  

Duram’s body was found near his wife, who suffered a gunshot wound to her head but is alive. Although police initially assumed she was a victim of the shooting, police reports obtained by WOOD-TV revealed that she eventually became a suspect in the slaying. […]

Relatives told the station that they think Martin Duram’s final moments were imprinted in the bird’s memory and that he continues to relive the slaying. They noted that Bud mimicked both the victim and his wife.

 

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"Dangerous love"

In China, you may be breaking the law if you date a foreigner for the purpose of learning their language.

On April 15, China observed its first annual National Security Education Day with the distribution of propaganda materials, delivery of speeches, and other activities designed to raise awareness of security issues.  A centerpiece of the campaign is a comic book-like poster in 16 panels titled "Wéixiǎn de àiqíng 危险的爱情" (“Dangerous Love”).

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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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