Archive for Language and the law

Lawyers as linguists

Alison Frankel, "Lexicographer (and Scalia co-author) joins plaintiffs’ team in Facebook TCPA case at SCOTUS", Reuters 10/20/2020:

Can a lexicographer fend off the combined forces of Facebook, the Justice Department and the entire U.S. business lobby at the U.S. Supreme Court?

What if said lexicographer is also the co-author, with Justice Antonin Scalia, of a landmark book about textualism that is cited multiple times in the other side’s briefs?

Bryan Garner – the Black’s Law Dictionary editor, legal writing consultant and, with Justice Scalia, author of Reading Law – has joined the Supreme Court team of Noah Duguid, a Montana man who sued Facebook in 2015 for violating the Telephone Consumer Protection Act. And though he’s only been working with Duguid’s other lawyers for a matter of weeks, Garner’s influence on Duguid’s just-filed merits brief is unmistakable. Who else could so boldly assert that the TCPA’s meaning depends on whether the statute’s “adverbial modifier” applies to just one or both “disjunctive verbs” with a “common object”?

Without taking anything away from the well-deserved kudos for Bryan Garner, I want to underline how odd it is to suggest that without his help, lawyers couldn't be expected to understand simple grammatical concepts like "adverbial modifier", "disjunctive verb", and "common object".

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Pointing at a deer and calling it a horse

The following graphics reflect the disgust of Hong Kong protesters over the police rewriting of the notorious attack on subway passengers by CCP orchestrated goons at the Yuen Long MTR station on July 21, 2019 (hence "721").

All of the illustrations have as their theme the set phrase (chéngyǔ 成語, often misleadingly referred to as "idioms") zhǐlùwéimǎ 指鹿為馬 ("point at a deer as a horse", i.e., "point at a deer and call it a horse"), i.e., "deliberate misrepresentation for ulterior purposes".

The Records of the Grand Historian records that [the powerful eunuch] Zhao Gao [d. 207 BC], in an attempt to control the Qin [221-206 BC] government, devised a loyalty test for court officials using a deer and horse:

Zhao Gao was contemplating treason but was afraid the other officials would not heed his commands, so he decided to test them first. He brought a deer and presented it to the Second Emperor but called it a horse. The Second Emperor laughed and said, "Is the chancellor perhaps mistaken, calling a deer a horse?" Then the emperor questioned those around him. Some remained silent, while some, hoping to ingratiate themselves with Zhao Gao, said it was a horse, and others said it was a deer. Zhao Gao secretly arranged for all those who said it was a deer to be brought before the law and had them executed instantly. Thereafter the officials were all terrified of Zhao Gao. Zhao Gao gained military power as a result of that. (tr. Watson 1993:70)

(Source)

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Who's seeking damages from whom?

Ambiguous headline:

"Chinese Citizen Files New Lawsuit Against Authorities Seeking COVID-19 Damages", by Frank Fang (August 13, 2020 Updated: August 13, 2020)

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National Security Law eclipses Hong Kong

What the people of the former British colony dread:

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"Literally" legality

Ken Stone, "OAN to Appeal Judge’s Ruling to Toss Rachel Maddow Defamation Suit", Times of San Diego 5/22/2020:

A San Diego federal judge Friday dismissed a $10 million defamation lawsuit filed by the owners and operators of San Diego-based One America News Network against MSNBC and political commentator Rachel Maddow.

Last summer, the liberal host told her viewers that the Trump-friendly conservative network “really literally is paid Russian propaganda.”

U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit with prejudice, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement,” made during a July 22, 2019, segment of her show.

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Hong Kong: language, art, and resistance

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Obsession with civilized behavior

In Chinese media, we often encounter exhortations to wénmíng xíngwéi 文明行为 ("civilized behavior"), but in this article, they've really gone over the top in promoting it:

"Běijīng wénmíng cùjìn tiáolì tōngguò  tíchàng zhèxiē wénmíng xíngwéi 北京文明促进条例通过 提倡这些文明行为" ("Beijing passes regulations for the advancement of civilization; for the promotion of these [types of] civilized behavior"), people.com (4/24/20)

Just counting wénmíng xíngwéi 文明行为 ("civilized behavior"), this four syllable, two word phrase is mentioned 17 times in this article.  If we count only the two syllable word wénmíng 文明 ("civilized; civilization"), it occurs 30 times.  I won't mention all of the more than sixty types of civilized behavior that are encouraged or required, but will note only those that are likely related to the COVID-19 pandemic, the proximate cause for the passage of these regulations:

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Language for COVID-19: German and Finnish

A rare find of linguistic news in a blog concerning the Supreme Court:

"Relist Watch: Kalsarikännit edition", John Elwood, SCOTUSblog

SCOTUSblog is about the work of the Supreme Court of the United States.  The author must have a streak of the linguist in him, for he chose to  begin today's post with three paragraphs about language usage related to the coronavirus crisis.  Here they are:

As America begins its fourth week under quarantine with widespread working from home, we’ve begun noticing shifts in grooming, attire and behavior as many of us remain cooped up for weeks on end.

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Corpora and the Second Amendment: “keep and bear arms” (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.

COFEA and COEME: lawcorpus.byu.edu.

This post will complete my analysis of the Second Amendment—for now. So far, I’ve focused almost entirely on the Second Amendment’s specification of the right that it protected—the right of the people, to keep and bear Arms—and have said little or nothing about well regulated or militia. That doesn’t mean I have nothing to say about those expressions, it just means that I’ll defer that discussion until sometime in the future.

Meanwhile, here in the present, this post will try to answer the question that I raised in the last post: whether the Supreme Court was right in saying that the fact that bear arms appears in the phrase keep and bear arms means that bear arms couldn’t have been used in its idiomatic military sense:

[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

It’s true that interpreting bear arms as having been used idiomatically would mean that arms conveys two different meanings (a phenomenon known as copredication). But as explained in my last post, that doesn’t rule out such an interpretation. Now, in this post, I’ll argue that interpreting bear arms in that way is more than just a theoretical possibility. I’ll discuss evidence that makes it reasonable to think keep and bear arms was intended to convey such a meaning, and that such an interpretation would have been more likely than the alternative.

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Reductio ad THE absurdum

Cindy Boren, "The Ohio State University wants to trademark its favorite word: ‘The’", WaPo 8/14/2019:

Ohio State is serious about calling itself “The” Ohio State University. The grammatical article is right there on many of the school’s seal, logos and signs. Now the university has gotten so serious about that three-letter word that it has sought to trademark it. […]

“Like other institutions, Ohio State works to vigorously protect the university’s brand and trademarks,” Chris Davey, a spokesman for the university, said in a statement to the Columbus Dispatch. “These assets hold significant value, which benefits our students and faculty and the broader community by supporting our core academic mission of teaching and research.”

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A surprising mistake

The "Federal Demonstration Partnership" is "is association of federal agencies, academic research institutions with administrative, faculty and technical representation, and research policy organizations that work to streamline the administration of federally sponsored research." There are 155 participating universities, and a larger number of "participating organizations" since e.g. the University of California is counted as one "university" but 8 "institutions".

So this is a seriously heavyweight organization, with massive bureaucratic inertia behind its policy decisions. And it's therefore really unfortunate that the contracts it mandates for scientific, technological and scholarly data sharing are deeply problematic.

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Spiritually Japanese

A cartoonist and her collaborator have been arrested in China for being "spiritually Japanese" (jīng Rì 精日).  They have also been accused of "insulting China" (rǔ Huá 辱华).  The latter term is transparent, and I've been hearing it a lot for the last couple of decades, whereas the former term is morphologically more difficult to understand (lit., "spirit Ja[pan]") and is new to me.

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Corpora and the Second Amendment: “keep and bear arms” (part 1) (updated)

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.

COFEA and COEME: lawcorpus.byu.edu.

This was supposed to be the final entry in my series of posts on the Second Amendment, but I’ve decided to split the discussion into two parts.

In my last post, I concluded that as used in the Second Amendment, bear arms was most likely understood to mean ‘serve in the militia.’ The question that I’ll address here and in my next post is whether that conclusion is changed by the fact that the Second Amendment protects not simply “the right of the people to bear arms” but “the right of the people to keep and bear arms.”

The corpus data on keep and bear arms is of no help in answering that question, because all the uses of the phrase in the data are either from the Second Amendment or from drafts of proposals for what became the Second Amendment. Therefore, I won’t deal with the corpus data at all in this post, and I’ll deal with only a relative handful of concordance lines in the next one (though those lines will play an important role in the analysis).

Taken together, these two posts will provide an extended rebuttal of the portion of Heller (consisting of only four sentences) that raised the question that these posts will address. Those four sentences were part of the court’s argument that bear arms as used in the Second Amendment couldn’t possibly have been understood in its idiomatic military sense:

[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

When I first read Heller, this struck me as a pretty strong argument. But I’ve rethought the issue since then, and have come to think that the argument is seriously flawed. At this point, although I don’t dismiss the argument altogether, I don’t think it rules out interpreting bear arms in the Second Amendment to mean ‘serve in the militia.’

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