Conjunctivitis
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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?
There are two constraints:
- "A maximum of two households"
- "A maximum of eight people"
The order imposes both constraints, which would literally forbid a household of more than eight people from engaging in "social gathering", whatever that exactly that means.
As the decision suggests, that would be irrational — or at least extreme and unlikely to be obeyed.
But the proposed interpretation, under which a gathering is forbidden only if it violates both conjuncts, would allow two households of any total size to social-gather. This is probably not what the decision had in mind.
A more reasonable version of the original order would forbid gatherings of more than two households, and more than 8 people in a gathering of two households.
What do you think?
Batchman said,
December 13, 2020 @ 1:35 pm
It depends on what the meaning of "social gathering" is. If it means a coming together of multiple groups of people from different households, then a single household cannot "socially gather" by definition. Thus the prohibition would not apply if only one household was "gathering."
That leaves open the question of whether a meeting of a single household at some other location than the household's home would be considered a "social gathering."
Craig said,
December 13, 2020 @ 1:37 pm
It seems like a strange interpretation to me. I would have said that "and" implies that both requirements apply and therefore a violation of EITHER of them can "trigger enforcement." That's how logical conjunctions work. If the rule said "or" instead of "and", then a gathering would be legal as long as one or the other of the two conditions were met (either a meeting of one or two households with any number of people, or a meeting of more than two households with no more than eight people). Perhaps a good question for the author of that decision would be, what would the difference between "and" and "or" be in this case? There should be a difference, right?
The original rule seems poorly thought out to begin with, though. What if a single household consists of more than eight people? They live together in the same house, but they're not allowed to gather? Does that make any sense in terms of safety during the pandemic?
MattF said,
December 13, 2020 @ 2:13 pm
I think it’s an error to make up a meaning for the order on the grounds that the apparent meaning doesn’t make sense. The right response is “Please clarify”.
Vicki said,
December 13, 2020 @ 2:39 pm
I would interpret that as "no more than two households, and no more than eight people unless they all live together and are gathering at home." [So, ten people who all live together wouldn't be able to rent a room in a restaurant and have a fancy meal there-the order doesn't require proprietors of gathering places to check where the attendees live.] But as Matt said, I also think it may be time for the governor to clarify, and say either "yes, that's what we meant" or "That's not what I meant, so here is executive order number 60, to clarify this."
Philip Taylor said,
December 13, 2020 @ 3:23 pm
If we assume that there are only two options — union and intersection — then one way to start would be to consider the alternative wording : "a maximum of [two] (2) households OR a maximum of eight (8) people". Such a ruling would, IMHO, allow one or two households totalling any number of persons, or three or more households totalling not more than eight persons. Since the original has AND rather than OR, I infer that as drafted the legislation is intended to limit social gatherings to at most two households AND to at most eight persons, and thus no gathering may legally comprise more than two households or eight persons.
Keith said,
December 13, 2020 @ 3:31 pm
Good people do not need a law to tell them how to behave, and bad people will not obey the law, anyway.
Jake Wildstrom said,
December 13, 2020 @ 4:55 pm
I live in Kentucky, and this order applied to my circumstances (my household, my sister-in-law's household, and my parents-in-law collectively total seven people, but we assumed that as a three-household group we were forbidden from getting together for Thanksgiving by the governor's order). My read is that gatherings of more than eight people not from a single household* are disallowed, and that gatherings of members from three or more households are disallowed.
* This particular exemption isn't in the order itself, of course, but there has to be some rational way to rule on a single household of more than eight people. Inasmuch as they're already of necessity in close interaction with each other, forbidding a "gathering" of the members of a household among themselves doesn't make a lot of sense.
Ken said,
December 13, 2020 @ 9:00 pm
What if it were phrased "All indoor social gatherings are limited to a maximum of (2) households and to a maximum of eight (8) people"? To me, that strengthens the reading that both restrictions apply, although I can't articulate just why.
D.O. said,
December 13, 2020 @ 9:49 pm
I respectfully submit that a single household, however numerous, cannot engage in "social gathering". They live together! As for the correct reading (union or intersection of sets vs. intersection or union of conditions) there is no way to tell.
Viseguy said,
December 13, 2020 @ 10:15 pm
As a lawyer, I feel I have to make this decision several times a week: do I write "and" or "or"? Is language Boolean, or is it … human? My "take" (usually) is that language is human unless it's expressly or contextually Boolean, and so the wording most-likely-to-be-understood-as-intended carries the day. (But what was "intended"?) And I believe that, ceteris paribus, this is the yardstick that judges should use in interpreting statutes and contracts. (The principle is firmly established with respect to wills and trusts, the area in which I practice.)
In the case at bar — um, blog — a couple of minutes' extra thought on the governor's part would have shown that the order as written was deficient. As best I can tell, the intended meaning was, "… limited to a maximum of eight (8) people, unless all the people are from at most two households” — although, as a matter of policy, should a gathering of 15, or 25, people from two households be considered safe? It's the stress of wresting with questions like these that leads policy-makers to deploy language without fully thinking things through. Which is why the human condition so often entails full employment for lawyers.
Brian of Hull said,
December 14, 2020 @ 2:36 am
I agree with the other posters who say that the wording suggests that social gatherings may not occur if they contain either more than eight people or more than two households. So even if there are only five people gathered, they can still not be from more than two households and even if there is only one household gathered, they still can't have a social gathering of more than eight people.
However, as several other posters have suggested, members of a single household being present together does not constitute a social gathering. Therefore, what allows members of a single household of more than eight people to gather together without violating the order is not that "the conjunctive 'and' implies that the order requires both factors to be met to trigger enforcement" (it does no such thing). Rather, it is the definition of social gathering, which has never included the meaning of members of the same household interacting in their house.
bks said,
December 14, 2020 @ 8:49 am
Writing unambiguous policy is nearly impossible. The NFL writes policy for an artificial game over which they have near complete control, and for which they have the help of review by multiple cameras with ultraslow motion. Yet despite having a bevy of million-dollar lawyers available they cannot come up with a clear definition of what it means to catch the ball. They have proved incapable of even coming up with a consistent definition.
unekdoud said,
December 14, 2020 @ 9:41 am
Logical conjunction: "cartons are limited to a maximum height of 1m and width of 2m".
Set union: "priority tickets are limited to the elderly and pregnant women."
As a generalization of the first option, we have addition: "patrons are limited to one burger and one side."
If we follow that spirit and allow "households" and "people" to be counted separate, then two households could cohost eight strangers to cause some real havoc.
Ellen K. said,
December 14, 2020 @ 10:04 am
After reading the original post, and some of the comments, I think it's meant to say any gathering of multiple households is limited to 8 people, and limited to 2 households, and going beyond 8 people, or beyond 2 households, is prohibited. It doesn't need to be both. And although, taken literally, it would apply to a social gathering of a single household, limiting that to 8 people, I think as a practical matter, it only applies when there's 2 or more households.
J.W. Brewer said,
December 14, 2020 @ 3:29 pm
I agree with those who think this isn't actually too hard if one interprets "social gathering" (or probably just "social") to be definitionally inapplicable to a single household of any size, meaning that the decision got to the right result by the wrong pathway. And that strikes me as the most natural reading of "social" in context rather than a somewhat stretched interpretation that needs to be seized on in order to make sense of an otherwise badly-drafted rule.
FWIW a draft appeal brief I'm currently working on includes the word "disjunctive." There's a lot of grammatical (or logical) technical terminology I would be before cautious using because of lack of 100% confidence that the judicial reader would understand it correctly, but at least in context I don't have that concern here.
George said,
December 14, 2020 @ 5:35 pm
Are we agreed that the policy forbids a gathering of three people, if they are drawn from three one-person households? I think it does.
Philip Anderson said,
December 14, 2020 @ 6:47 pm
@unekdoud
Comparing your examples:
Burger and side are mutually exclusive, while the elderly and pregnant women have minimal overlap, but more importantly they are clearly sets; however, households and people are clearly not independent, just different properties of a group.
I agree with others that the limitation as stated means that a social gathering must not have more than 8 members, and those members can be drawn from one or two households. That does rule out single-household social gatherings, which might not have been intended, but is far from nonsensical (and is arguably sensible); however, it is not necessarily the case that all internal household interactions are social gatherings. At one extreme, oing out for dinner en famille surely is; at the other, some households don’t have communal means, but people do their own meals at different times, so they may rarely all be together at the same time.
In fact, saying that a social gathering can include a MAXIMUM of two households has to allow the possibility of it including only one (zero is OK since any gathering with 0 households must have 0 people.
Jim said,
December 14, 2020 @ 6:53 pm
I would use "with" rather than "and".
"a maximum of two households, with up to eight people total"
Can't do three households totaling 6 people. Can't do two households totaling 9 people. One household of 10, well, you already live together anyway…
Gregory Kusnick said,
December 14, 2020 @ 8:32 pm
I'm with Philip Anderson in thinking that it may indeed be sensible for large households to limit the size of their communal meals and other in-house gatherings, especially if one or more members are at elevated risk of infection due to their work, age, etc.
However, "any gathering with 0 households must have 0 people" neglects the fact that homeless people too have social gatherings, often more than eight of them at a time.
F said,
December 15, 2020 @ 8:18 am
And what's wrong with "… limited to (i) a single household, or (ii) not more than eight people drawn from not more than two households"? Other than not being lawyerese, that is.
Trogluddite said,
December 15, 2020 @ 9:35 am
The following sentence seems very odd to me (BrE speaker): 'The conjunctive “and” implies that the order *requires both factors to be met* to trigger enforcement.' (my emphasis)
Is the concept of "meeting factors" a legal term? I'm not familiar with "factors" being things which are "met". The obvious (to me) reading of "both factors to be met" would be "both numbers to be kept at or below the maxima" (i.e. it is the constraints which are "to be met"), since the the constraints (the two maxima) seem to be the only available referents for "both factors" and all of the previous sentences ostensibly define *permitted* behaviours, not *offenses* which might "trigger enforcement" ("…gatherings are limited to [allowed things]", "…gatherings can include only [allowed things]").
It wasn't until I reached "trigger enforcement" that I realised the sudden switch from a "permitted behaviour" framing to a "prohibited behaviour" framing. Given what LL has taught me about negations and "monkey brains", it seemed that this switch of focus likely contributes to the ambiguity of the "and".
In fact, Eugene illustrates this ambiguity in the original question, where the phrase "requires both factors to be met" is copied, but this time implying that the "factors" are permitted behaviours rather than prohibited ones.
Daniel Barkalow said,
December 15, 2020 @ 3:03 pm
The decision doesn't make any sense for a completely different reason: if something is limited to a maximum of 2, then 1 and 2 are equivalently okay, while 3, 4, 5, and so forth are prohibited. But then the decision seems to conclude that a single household of 12 is fine but two households that combine to 12 would not be, when there's nothing in the order to distinguish gatherings of 1 household from gatherings of 2 households.
I think that the author of the decision had a correct gut feeling that a single 12-person household would be considered okay, but went wrong trying to explain that conclusion logically.
J.W. Brewer said,
December 15, 2020 @ 3:28 pm
For people who find the excerpt puzzling, it may be useful to read the broader context around pages 17-18 of the decision. The government defendants told the court that the rule would not be interpreted in practice to forbid anything done by a single household with more than eight members, so it wasn't merely a "gut feeling" by the judge that that interpretation would lead to practical problems. Perhaps the government lawyers fed the judge an explanation of why the wording shouldn't be read that way that the judge then adopted even though it was not the best possible explanation; this all got briefed and decided on an emergency basis.
The decision does set up the "conjunctive" discussion by saying "[a]lthough the Executive Order may have been inartfully written" and the government's lawyers may not have done the best job of convincing the court that it was artfully written. But they didn't need to, because when in this sort of context the people that will be enforcing the rule basically promise the court that they will not interpret it to apply to situation X, courts will generally say that okay well someone who claims be worried about the rule being enforced against them in situation X doesn't actually need a court order protecting them from a non-existent threat, with it being understood that the court will be extremely unhappy if whoever promised the court they wouldn't enforce it in situation X then goes ahead and does so. A plausible linguistic argument that a regulation or statute could be read more broadly than the enforcing agency has told the court they are interpreting it in practice won't necessarily get you anywhere with the court in that situation.
I am highly confident that Eugene Volokh understands all of that as well or better than I do, and it was perfectly fair for him to be interested in just the quoted bit as an isolated question of syntactic parsing. But I suspect not everyone reading this thread might have that broader context.