Archive for Language and the law

Grice and beer in Federal Court

The philosopher Herbert Paul Grice was cited in an opinion issued on 5/24/2019 by Judge William M. Conley in the United States District Court for the Western District of Wisconsin.

The case is MillerCoors, LLC v. Anheuser-Busch Companies, LLC (3:19-cv-00218-wmc, and as the judge's opinion explains,

During Super Bowl LIII, defendant Anheuser-Busch Companies, LLC, launched an advertising campaign highlighting plaintiff MillerCoors, LLC's use of corn syrup in brewing Miller Lite and Coors Light, as compared to Anheuser-Busch's use of rice in its flagship light beer, Bud Light. This lawsuit followed, with MillerCoors asserting a claim of false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).

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Illegal dog names

This odd headline caught my eye:

"Man in China detained after giving dogs 'illegal' names," by Travis Fedschun | Fox News (5/15/19)

And what were the offending names?  Not what you might have thought:

Chéngguǎn 城管 ("Urban Management")

Xiéguǎn 协管 ("Assistant Management")

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Corpora and the Second Amendment: "bear arms" (part 2)

Part 1 is here. An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

In this post and the next one, I will discuss the corpus data for bear arms.

This post will focus on the data that I think is consistent (or at least arguably consistent) with the Supreme Court's interpretation of bear arms in District of Columbia v. Heller, and the next one will deal with the data that I think is inconsistent with the Heller interpretation.

As I discussed in my last post, the court in Heller held that the "natural meaning" of bear arms in the late 18th century (i.e., its "ordinary meaning" (i.e., what it ordinarily meant)) was "wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person." As I read the data, very little of it is consistent with that interpretation.

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Corpora and the Second Amendment: "bear arms" (part 1), plus a look at "the people"

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

This is the first of what will be three posts on bear arms; it will be devoted to critiquing the Supreme Court's discussion of bear arms in District of Columbia v. Heller. My examination of the corpus data on bear arms will appear in my next two posts. In the meantime, if you're interested, you can read discussions of the data by Dennis Baron ("Corpus Evidence Illuminates the Meaning of Bear Arms," in the Hastings Constitutional Law Quarterly) and by Josh Blackman & James C. Phillips ("Corpus Linguistics and the Second Amendment," in the Harvard Law Review Blog), both of which reach conclusions consistent with mine. (The piece by Blackman & Phillips is especially noteworthy, given that they are both gun-rights advocates.)

My focus in this post will be on the Supreme Court's conclusion that at the time the Second Amendment was proposed and ratified, bear arms unambiguously meant 'carry weapons, for purposes of being prepared for a confrontation,' without regard to whether the carrying was in connection with military service. What I conclude is that even without taking account of how bear arms was actually used, the court's arguments don't hold up. Assuming for the sake of argument that bear arms could reasonably have been understood to mean what the court said it meant, the court didn't show that it unambiguously meant that.

That's not to say that I think bear arms was ambiguous. As I'll discuss in the next two posts, the corpus evidence points toward the conclusion that bear arms unambiguously conveyed the military meaning that the Supreme Court rejected: "to serve as a soldier, do military service, fight" or "to wage war." But even if the evidence were equivocal, the absence of evidence unambiguously supporting the court's interpretation would still be important.

That's because the court's analysis in Heller depends crucially on its conclusion that bear arms was unambiguous. It was that conclusion that enabled the court to interpret the Second Amendment's operative clause ("the right of the people to keep and bear Arms, shall not be infringed") without taking into consideration its prefatory clause ("A well regulated Militia, being necessary to the security of a free State"). In the court's view, if the operative clause was unambiguous, the prefatory clause "does not limit or expand [its] scope." So if court was wrong in thinking that the operative clause was unambiguous, it was wrong in refusing to consider whether the prefatory clause affected its meaning. And if the prefatory clause plays a role in interpreting the operative clause, the argument against the court's interpretation is strengthened.

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A huge-ass trademark case

Literally. Kate Bernot, "Please let New Orleans' "Huge Ass Beer" lawsuit reach the Supreme Court", The Takeout 3/1/2019:

Per The New Orleans Advocate, the trademark for Huge Ass Beers belongs to one Nicholas S. Karno #1 Inc., which operates multiple Bourbon Street bars. Said bars—the Steak Pit, Prohibition, and Cornet—offer oversized and novelty pours of beer in branded Huge Ass Beer mugs. […]

But Huge Ass Beer bars' operator Billie Karno this week filed a lawsuit alleging that other Bourbon Street bars have violated his Huge Ass Beer trademark by selling to-go cups advertising "Giant Ass Beer." Those bars—Beerfest, Voodoo Vibe, and Sing Sing—plus a strip club called Stiletto's, are operated by Pamela Olano and Guy Olano Jr. Karno seeks an end to marketing materials bearing the name Giant Ass Beers as well as damages.

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Corpora and the Second Amendment: "arms"

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

This post on what arms means will follow the pattern of my post on bear. I'll start by reviewing what the Supreme Court said about the topic in District of Columbia v. Heller. I'll then turn to the Oxford English Dictionary for a look at how arms was used over the history of English up through the end of the 18th century, when the Second Amendment was proposed and ratified.. And finally, I'll discuss the corpus data.

Justice Scalia's majority opinion had this to say about what arms meant:

The 18th-century meaning [of arms] is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined ''arms'' as ''[w]eapons of offence, or armour of defence.'' Timothy Cunningham's important 1771 legal dictionary defined ''arms'' as ''any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.'' [citations omitted]

As was true of what Scalia said about the meaning of bear, this summary was basically correct as far as it went, but was also a major oversimplification.

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Penn motto

Is there a mistake here?

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A corpus-linguistic take on "emolument(s)" (updated)

From the Washington Post:

The study is a corpus analysis performed by Jesse Egbert, a corpus linguist at Northern Arizona University and Clark Cunningham, a law professor who did work in law and linguistics from the late 1980s through the mid-1990s (link, link, link, link), including co-authoring an article with Chuck Fillmore that was what really opened my eyes to the power of linguistics in analyzing issues of word meaning.

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Corpora and the Second Amendment: "bear"

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

Starting with this post, I'm (finally) getting to the meat of what I've called "the coming corpus-based reexamination of the Second Amendment." The plan, as I've said before, is to more or less mirror the structure of the Supreme Court's analysis of keep and bear arms. This post will focus on bear, and subsequent posts will focus separately on arms, bear arms, and keep and bear arms; I won't be separately discussing keep arms because I have nothing to say about it. [Update: If you're confused about why I'm following this approach, as one of the commenters was, I've offered an explanation at the end of the post.]

In discussing the meaning of the verb bear, Justice Scalia's majority opinion in District of Columbia v. Heller said, "At the time of the founding, as now, to 'bear' meant to 'carry.''' That statement was backed up by citations to distinguished lexicographic authority—Samuel Johnson, Noah Webster, Thomas Sheridan, and the OED—but evidence that was not readily available when Heller was decided shows that Scalia's statement was very much an oversimplification. Although bear was sometimes used in the way that Scalia described, it was not synonymous with carry and its overall pattern of use was quite different.

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Parmesan cheese redux

From Jonathan Weinberg:

An update to "'100% grated parmesan cheese'" (9/5/2017):

In which the court explains that it can blow off the affidavit of Anne Curzan and Ezra Keshet of the University of Michigan that only one interpretation of the phrase "100% grated Parmesan cheese" is plausible in context, and the affidavit of Kyle Johnson of UM-Amherst that the phrase has only one semantically and pragmatically salient interpretation, because "a reasonable consumer -— the touchstone for analysis under the consumer fraud statutes -— does not approach or interpret language in the manner of a linguistics professor." Aargh.

The new decision has been covered by Rebecca Tushnet at the 43(B) blog ("Post-parmesan: 100% grated parmesan still doesn't have to be 100% grated parmesan, court reiterates", 11/2/2018). (The affidavits — indeed, the names of the experts — don't appear in the decision or in Rebecca's writeup, but I pulled them off Pacer.)

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Corpora and the Second Amendment: "keep" (part 2)

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

In  my last post (longer ago than I care to admit), I offered a very brief introduction to corpus analysis and used corpus data on the word keep as the raw material for a demonstration of corpus analysis in action. One of my reasons for doing that was to talk about the approach to word meaning that I think is appropriate when using corpus linguistics in legal interpretation.

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Corpora and the Second Amendment: 'keep' (part 1)

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

With this post, I begin my examination of the corpus data regarding the phrase keep and bear arms. My plan is to start at the level of the individual words, keep, bear, and arms, then proceed to the simple verb phrases keep arms and bear arms, and finally deal with the whole phrase keep and bear arms. I start in this post and the next one with keep.

As you may recall from my last post about the Second Amendment, Justice Scalia's majority opinion in D.C. v. Heller had this to say about the meaning of keep: "[Samuel] Johnson defined 'keep' as, most relevantly, '[t]o retain; not to lose,' and '[t]o have in custody.' Webster defined it as '[t]o hold; to retain in one's power or possession.'" While those definitions could be improved on, I think that for purposes of this discussion, they adequately explain what keep means when it's used in the phrase keep arms. So I'm not going to discuss that data with an eye to criticizing this portion of the Heller opinion.

Instead, I'm going to use the data for keep as the raw material for an introduction to the nuts and bolts of corpus analysis. I suspect that many people reading this won't have had any first-hand experience working with corpus data, or even any exposure to it. Hopefully this quick introduction will enable those people to better understand what I'm talking about when I start to deal with the data that does raise questions about the Supreme Court's analysis.

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Citizenship and syntax (updated, and updated again)

Last week the Washington Post published an op-ed by Michael Anton arguing that the United States should do away with birthright citizenship—the principle that anyone born in the United States is a U.S. citizen, even if their parents are foreign-born noncitizens. The op-ed has attracted a lot of attention from people on both the left and the right, and by "attention" I mean "condemnation". (E.g., Garrett Epps at The Atlantic, Mark Joseph Stern at Slate, Dan Drezner at the Washington Post, Robert Tracinski at The Federalist, Alex Nowraseth at The American Conservative, and Jonathan Adler at Volokh Conspiracy. See also this Vox explainer.)

The criticism both on on Anton's nativism, but also on his interpretation of the 14th Amendment, on which birthright citizenship is based. One of the interpretive moves for which Anton has been criticized is his handling of a statement made on the floor of the Senate while the proposed text of the 14th Amendment was being debated. And that dispute turns on the resolution of a syntactic ambiguity.

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