Language Log

Eugene Volokh writes:

A recent COVID-related decision reasons thus,

The [Kentucky Governor’s] order states: “All indoor social gatherings are limited to a maximum of (2) households and a maximum of eight (8) people.” [Exec. Order 2020-969.] What the language requires is that indoor social gatherings can only include a maximum of two households and up to eight people. The conjunctive “and” implies that the order requires both factors to be met to trigger enforcement. Thus, the rational reading of the executive order is that single families, no matter how large, are not prevented from living or dining together by this executive order.

As a purely linguistic matter, does this seem correct to you? Or would you say that “and” implies that the order requires both factors to be met to make the behavior fit within the limitation?

Lin Wood has gotten some social-media ridicule for various aspects of a brief that he filed in support of Texas's failed attempt to get the U.S. Supreme Court to throw out four other states' votes in the 2020 presidential election ("Supreme Court Rejects Texas Suit Seeking to Subvert Election", NYT 12/11/2020). The linguistically relevant issues have to do with (grammatical) number:

I'M SERIOUS HE MISSPELLED HIS OWN DAMN NAME.

Also, he apparently thinks he's plural. Either that or Latin is another item on his lengthy list of incompetencies. pic.twitter.com/awvQ1Cv0Ct

— Mike Dunford (@questauthority) December 11, 2020

Previously: Robocalls, legal interpretation, and Bryan Garner

All three canons that are in play in Facebook v. Duguid (the Last Antecedent, Series Qualifier, and Nearest Reasonable Referent Canons) have precursors in U.S. and English caselaw. That’s no surprise, given that all 57 canons in Reading Law are presented as being  well established in the law. But as my last post noted, each canon departs from the previous caselaw in one respect or another. And in the case of the Series Qualifier Canon, the departure is quite substantial.

To lay the groundwork necessary in order to describe those departures, this post will summarize the prior law from which the three canons deviate.

A few weeks ago, Mark’s post “Lawyers as linguists” alerted me to Facebook v. Duguid, a case now pending before the Supreme Court, which grabbed my attention for several reasons. First, the case presents an interesting linguistic issue. Second, the parties on both sides have framed their linguistic arguments in terms of three of the canons of interpretation in Reading Law: The Interpretation of Legal Texts (2012) the book coauthored Bryan Garner and the late Justice Antonin Scalia, and I’ve previously criticized the canons at issue (e.g., here). Finally, Garner himself is on the legal team representing the plaintiff, Noah Duguid.

An unusual confluence of circumstances.

Yesterday, I learned a new bit of legal jargon: "upon information and belief". A three-judge panel of the U.S. Court of Appeals for the Third Circuit "roundly rejected the Trump campaign's appeal in its effort to challenge the election results in Pennsylvania". The opinion was written by my former colleague Stephanos Bibas, and includes this passage:

Though it alleges many conclusions, the Second Amended Complaint is light on facts. Take the nearly identical paragraphs introducing Counts One, Two, Four, and Six: “Democrats who controlled the Defendant County Election Boards engaged in a deliberate scheme of intentional and purposeful discrimination . . . by excluding Republican and Trump Campaign observers from the canvassing of the mail ballots in order to conceal their decision not to enforce [certain ballot] requirements.” Second Am. Compl. ¶¶ 167, 193, 222, 252. That is conclusory. So is the claim that, “[u]pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in Defendant Counties should not have been counted.” Id. ¶¶ 168, 194, 223, 253. “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.

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".

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)

Ambiguous headline:

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

What the people of the former British colony dread:

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.

Sign from Hong Kong:

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:

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.