On not writing anything

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As anyone who blogs knows or soon learns, doing so makes you a whole lot more transparent than you might otherwise wish to be. In fact, writing anything like books, articles, or blogs makes you an attractive target for people who may not appreciate what you say. No clearer example can be found than the vetting process the government inflicts on nominees for high-level appointments, such as the US Supreme Court. It’s unfortunate that the persons who finally survive these processes are often are the ones who have written little or nothing about which they can be criticized.

The problem with putting anything in print is made very clear by Paul Barrett in his Harvard Magazine review of a new book by Lawrence Tribe, The Invisible Constitution. Barrett feels that Tribe’s candid views about the US Constitution automatically eliminate him as a possible nominee to the highest court in the land—primarily because he clearly elaborates his own positions (reasonable, to me anyway) about the hot topic of the originalist theory of interpretation. 

What’s so bad about writing your legal theories? Nothing, except it opens the door for opponents to grill Tribe mercilessly about them if he actually is ever nominated. All we need to do is recall other such hearings, starting about the time of Robert Bork’s unsuccessful experiences. These days it’s apparently safer to avoid explaining anything your own legal theories and analyses.

Closer home to linguistics, I’ve been puzzled by why many linguists who work in law cases don’t write much about their experiences of using linguistics to help resolve civil and criminal courtroom battles. But now I’m beginning to understand. One of the first experiences expert witness linguists face when they’re cross-examined by opposing lawyers is a barrage of challenges about anything they have ever committed to print. The idea is to impeach their testimony or prevent them from even taking the witness stand. If the linguists have written anything that comes close to being controversial, wrong, or inconsistent, they can expect to have to defend it.

Other than being annoying, what’s so bad about that? Several things. For one, the field of linguistics is not static. What was acceptable and standard in one decade soon can become passé. What we have said earlier can come back to haunt us, making us look inconsistent or whimsical rather than a sign of our ability to grow with the developing science.

Secondly, any competent expert learns new things. For example, it would be unlikely for linguistic expert witnesses to have made use of pragmatics or speech act theory in the early 70’s,when nothing much was known about them. But this fact of history doesn’t discourage a lawyer from asking why they didn’t use it in their earlier analyses.

Finally, most of us are prone to make mistakes once in a while. Our earlier analysis might contain errors, even small ones, of some kind. Humans tend to be like that. In one of my earlier books, for example, I accidentally (stupidly?) reversed the definitions of slander and libel. I knew better, but somehow this gaff made it through several layers of editing and into print.

The stakes can be just as important for expert witnesses as they are for Supreme Court nominees. It will be sad indeed if the grilling and vetting process prevents brilliant lawyers like Lawrence Tribe from becoming a Justice, and it will be equally sad if the fear of having our writings come back to haunt us prevents linguists from sharing important learning experiences with others in the field.

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