Archive for Language and the law

Annals of unintended judicial irony

From Grice v. City of St. Robert (Mo. Ct. Ap. 1992) (citations omitted):

This court should not create an exception where none is present. Where a statute has no exception courts should not engraft one by judicial legislation. Words used in the statute must be accorded their plain and ordinary meaning. When language is plain and admits to but one meaning, there is no room for construction.

On Paul Grice:

A quick summary at/by The Information Philosopher

Dictionary of Philosophy of Mind

Stanford Encyclopedia of Philosophy

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Prescriptivist statutory interpretation?

The title of this post combines two topics that are popular with the Language Log audience, and that are not usually discussed together. It is also the title of a LAWnLinguistics post from 2012, shortly after the publication of Reading Law, a book about legal interpretation that was co-authored by Justice Scalia and Bryan Garner. It was one of a series of posts that I did about the book—a series of which the last installment has not yet been written.

The post was about whether prescriptivism has any role to play in statutory interpretation (no inside jokes in this title, I'm afraid), and it occurs to me that since many people here will be interested in the topic, it might be a good idea to bring the post back for a return engagement in a larger venue. And because the topic is one that I recently returned to at LAWnLing, I'm going to include the relevant part of that post as well.

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An introduction

If you've seen my previous post, SCOTUS cites CGEL (etc.), you may have been surprised to see an unfamiliar name in the byline beneath the title—unfamiliar because you've never heard or me, or because you didn't associate me with Language Log other than as an occasional commenter and a long-time-ago guest poster. Either way, you're probably wondering how I hacked my way into the Language Log server, and whether purloined Language Log emails are going to start being posted on Wikileaks. Or maybe it's fsociety that you're worried about. So let me assure you that no violations of the Computer Fraud and Abuse Act were committed in the making of that post, or of this one.

The explanation for my presence here is that I've accepted an invitation from Mark to be a regular contributor to Language Log. And the purpose of this post is to briefly introduce myself.

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SCOTUS cites CGEL (Props to Justice Gorsuch and the Supreme Court library)

(Cross-posted from LAWnLinguistics.)

When grammatical questions come up in legal cases, the lawyers and judges will want to support their arguments and analyses with citations to books about grammar. Most of the time, they cite books intended for a general audience, such as the McGraw-Hill Handbook of English Grammar and Usage, The Elements of Grammar, Strunk & White, and various books by Bryan Garner; and books intended for lawyers, such as The Grammar and Writing Handbook for Lawyers and (again) various books by Bryan Garner.

Unfortunately, none of those books gives an adequate description of English grammar, which is a subject that is much more complex than most people realize. If you're looking for a book that can speak about the subject reliably and with authority, the leading candidates are two books that are both known by the initials CGEL.

One is the Cambridge Grammar of the English Language (2002), whose main co-authors are Rodney Huddleston and Geoffrey Pullum. The other is the Comprehensive Grammar of the English Language (1985), by Randolph Quirk, Sidney Greenbaum, Geoffrey Leech, and Jan Svartvik. If you're dubious about my statement regarding the complexity of English grammar, you should note that both of these books are enormous: the text of Huddleston & Pullum exceeds 1,700 pages, and Quirk et al.'s exceeds 1,600 pages. If you ever have occasion to hold a copy of either book in your hands, be careful not to drop it on your toes.

Up until today, Huddleston & Pullum had been cited by U.S. courts 24 times, and Quirk et al., 12 times. The courts in question included the federal courts of appeals for the Fifth and Sixth Circuits and the supreme courts of Colorado, Minnesota, Oregon, Utah, and Washington. But not the U.S. Supreme Court.

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Flip Donkey Doodleplunk?

Barton Beebe & Jeanne Fromer, "Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion", Harvard Law Review, February 2018:

Abstract: American trademark law has long operated on the assumption that there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed.  This core empirical assumption underpins nearly every aspect of trademark law and policy.  This Article presents empirical evidence showing that this conventional wisdom is wrong. The supply of competitively effective trademarks is, in fact, exhaustible and has already reached severe levels of what we term trademark depletion and trademark congestion. We systematically study all 6.7 million trademark applications filed at the U.S. Patent and Trademark Office (PTO) from 1985 through 2016 together with the 300,000 trademarks already registered at the PTO as of 1985.  We analyze these data in light of the most frequently used words and syllables in American English, the most frequently occurring surnames in the United States, and an original dataset consisting of phonetic representations of each applied-for or registered word mark included in the PTO’s Trademark Case Files Dataset. We further incorporate data consisting of all 128 million domain names registered in the .com top-level domain and an original dataset of all 2.1 million trademark office actions issued by the PTO from 2003 through 2016. These data show that rates of word-mark depletion and congestion are increasing and have reached chronic levels, particularly in certain important economic sectors.  The data further show that new trademark applicants are increasingly being forced to resort to second-best, less competitively effective marks.  Yet registration refusal rates continue to rise.  The result is that the ecology of the trademark system is breaking down, with mounting barriers to entry, increasing consumer search costs, and an eroding public domain. In light of our empirical findings, we propose a mix of reforms to trademark law that will help to preserve the proper functioning of the trademark system and further its core purposes of promoting competition and enhancing consumer welfare.

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"Voiceprint" springs eternal

John R. Quain, "Alexa, What Happened to My Car?", NYT 1/25/2018 [emphasis added]:

And even though voice bots like Alexa and Google’s Assistant can be taught to recognize different voices — well enough to cater to each family member’s favored Pandora stations, for example — they do not offer any sort of biometric security, such as voice print analysis. As a result, Alexa’s voice-recognition capabilities are not discerning enough for security purposes, according to Amazon.

There are two things about this passage that caught my attention.

First, a minor point: the NYT here chooses to write "voice print" as two separate words. This is a change from their previous practice — already in May of 1962 (and many times since),  the grey lady was writing "voiceprint" solid in stories like this one:

A researcher from Bell Telephone Laboratories described yesterday tests that he said, showed that "voiceprints" may prove to be almost as effective, for identification, as fingerprints.

And second, a more important point:  here's a journalist who still thinks that "voice print analysis", however spelled, offers "biometric security".

[Warning: what follows is a long post about lexicographic, technological,  journalistic, and literary history, guaranteeing that at least three quarters of the content will bore or mystify most readers.)

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Cyprus, Cypress, whatever…

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This is not a comedy sketch

At least, we're five months away from April Fool's Day…

Lydia Wheeler, "Court rules request for 'lawyer dog' too 'ambiguous'", The Hill 10/30/2017:

The Louisiana Supreme Court won't hear an appeal from a man who claimed he told police during an interview to "just give me a lawyer dog,” with a justice saying the request was "ambiguous." […]

[D]etectives reportedly advised the defendant of his Miranda rights, and the defendant stated he understood and waived those rights.

The defendant, however, claimed he invoked his right to counsel in a second police interview when he said “if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” […]

“In my view, the defendant’s ambiguous and equivocal reference to a 'lawyer dog' does not constitute an invocation of counsel that warrants termination of the interview,” [Louisiana Supreme Court Justice Scott Crichton] said.

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Semantics at the Supreme Court

“What is the difference between ‘reasonably necessary’ and ‘substantial need’?” asked Supreme Court Justice Samuel Alito (see this story in the New York Times). “I have been racking my brain trying to think of something that it is reasonably necessary for me to obtain but as to which I do not have the substantial need. And I can’t think of an example.”

Several of the court’s more liberal justices disagreed, saying that “reasonably necessary” connoted matters that a reasonable lawyer with finite resources would try to pursue.

On the outcome there hangs the issue of whether death row inmates like Carlos Manuel Ayestas in Texas will get legal aid. A federal appeals court in New Orleans, which oversees cases from Louisiana, Mississippi and Texas, says there must a “substantial need” for the money, and denied funds to Ayestas. He challenged the denial.

So don't ever say there is no practical importance to the work semanticists do as they try to identify truth-conditional differences between terms of broadly similar meaning.

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Terror of singular 'they'

Joining a crowd of other recent fraudsters, Paul Roberts and Deborah Briton returned from their Spanish vacation and subsequently turned in a completely fake claim against the Thomas Cook package-vacation company, alleging that their time in Spain had been ruined by stomach complaints for which the hotel and the company should be held liable. They sought more than $25,000 in damages for the fictional malady. The judge sentenced them to jail. And in this report of the case my colleague Bob Ladd noticed that Sam Brown, the prosecuting attorney, showed himself to be so terrified of blundering into a singular they that he would not even risk using they with plural reference, preferring to utter a totally ungrammatical sentence:

*Sam Brown, prosecuting, said: "Both defendants knew that in issuing this claim he or she would be lying in order to support it."

Beware of struggling to obey prescriptive injunctions that don't come naturally to you; they can warp your ability to use your native language sensibly.

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Cultural invasion

Article in South China Morning Post (9/19/17) by Jasmine Siu:

"Activist fined HK$3,000 for binning Hong Kong public library books in ‘fight against cultural invasion’ from mainland China:  Alvin Cheng Kam-mun, 29, convicted of theft over dumping of books printed in simplified Chinese characters"

A radical Hong Kong activist was on Tuesday fined HK$3,000 for dumping library books in a bin in what he said was an attempt to protect children from the “cultural invasion” of simplified Chinese characters.

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"100% grated parmesan cheese"

Glenn Lammi, "Food Court Follies: Judge Grates Parmesan-Cheese Multidistrict Litigation", Forbes 8/31/2017:

A recent court case asked the Reasonable Person to put on her "reasonable consumer" hat and determine the meaning of the term "100% Grated Parmesan Cheese" as it appears on containers of shelf-stable, processed shaky cheese.

In February 2016, inspired by overblown media stories, 15 lawsuits were filed in 6 different courts against 7 defendants (Kraft Heinz Co., Albertsons Cos., Target Corp., Wal-Mart Stores, ICCO-Cheese Co., and Publix Super Markets) alleging common-law and statutory violations for those companies' false or misleading use of that statement.

The term is fraudulent, the suits alleged, because the container of grated or shredded cheese included an additive, cellulose, which is included to prevent caking.

On June 2, 2016, the Judicial Panel on Multidistrict Litigation centralized all the actions in one multidistrict litigation (MDL) in the Northern District of Illinois before Judge Gary Feinerman.

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Uncle Martian knocks off Under Armour

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