More on what "the" means

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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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7 Comments »

  1. Keith M Ellis said,

    February 19, 2013 @ 3:04 pm

    I'd really love to see jurists and legal scholars look to linguistics to answer these sorts of questions for exactly the same reasons that I'd love to see academics and journalists and such look to psychologists who specialize in memory to answer questions about plagiarism (which are almost without exception strongly inflected by issues of intent). That is to say, there's actual scientific scholarship that can be brought to bear on these issues, as opposed to ad hoc intuitive judgments supported by ex post rationalizations.

    Law seems especially egregious, though, in both these particular areas. There's intensive interpretation of text and presumed intended meaning outside the context of linguistic analysis and there's intensive examination of and reliance upon recalled events outside the context of the psychology of memory. In both cases, because (almost) everyone has language and (almost) everyone has memory, it's presumed that (almost) everyone has sufficient comprehension in what language and memory are and how they work. Which, sadly, is far from the case.

  2. Jeff Carney said,

    February 19, 2013 @ 3:49 pm

    Assuming it's accurate, I find the discussion of the word "adjourn" and its fellows to be especially persuasive.

  3. David Eddyshaw said,

    February 19, 2013 @ 3:59 pm

    Bizarre idea to look in a dictionary to find out the meaning of "the"; you want a grammar for something like that, surely.

  4. Boudica said,

    February 19, 2013 @ 7:42 pm

    You can tell I have little legal experience. I read the first sentence about the Heller-like textualism and thought it meant Joseph Heller's Catch-22 and its absurdity.

  5. Ray Girvan said,

    February 19, 2013 @ 8:56 pm

    @Keith M Ellis: there's intensive examination of and reliance upon recalled events

    And further on this point – although this is considerably off-topic – it would be nice to see law look to what's known about cognitive psychology, in connection with its absurd historically-based tradition of trust in witness accounts, when we now know that memory is so unreliable and affected by cognitive bias.

  6. Jerry Friedman said,

    February 20, 2013 @ 11:03 am

    Ray Girvan: It's been said that juries are becoming reluctant to convict on eyewitness testimony alone and that they want forensic evidence.

    http://www.legalzoom.com/everyday-law/courtroom/csi-effect-juries-demand

    (from 2008, so I don't know how well that's held up)

  7. Bill W said,

    February 20, 2013 @ 11:31 am

    It looks like the DC Circuit has incorporated Samuel Johnson's dictionary into the US Constitution. The court went dictionary-shopping until they found one that gave them the result they were looking for.

    But it should be easy to refute the court's simplistic analysis, which seems to be based on Johnson's narrow definition of "the", out of the ample corpus of Johnson's own writings–to show how his own usage is far more varied than his definition, and doesen't fit neatly into the definition.

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