Legal theory lexicon: possibility and necessity

The Legal Theory Blog continues to be an excellent source of materials on law and language. See this recent entry on possibility and necessity.

[I'm done with exams and playing ketchup; hopefully I'll resume regular blogging in the next few days.]

Interpretation vs. Construction

Here. From the Legal Theory Lexicon on the Legal Theory Blog.

Clearly interpretation, rather than construction, is where the expertise of linguists is directly relevant.

Loose Canon: Expressio Unius

Starting Wednesday, I've got 4 exams in 9 days, so I'm excusing myself from my aspiration to 1-2 substantive posts a week for the next little while. Today, a short and poorly-edited post on the canon known as "Expressio Unius est Exclusio Alterius," which means "expression of one thing is the exclusion of others."

Justice Scalia's illustration of the canon in his book "A Matter of Interpretation" is roughly as follows. A sign that says, "No children under 12 admitted" can be interpreted to entail that people over 12 are admitted, or at least qualify for admission on the basis of age.

A sensible rule for cases in which it works, but in general this canon is sketchy beyond belief. It's an incredibly "loose" canon, in the sense that it can be used to justify almost anything. It is not surprising, therefore, that Justice Scalia, who is generally skeptical of canons of statutory construction, likes this one. It allows him to exercise his willfulness while pretending to be faithful to the text.

To illustrate, take this text, from a sign at the entrance to the Case Law Library's computer lab:

DO NOT REMOVE CHAIRS FROM THE LAB

Using the canon of Expressio Unius, we can determine that one may remove the computers from the lab; or that one can remove chairs from the other computer lab.

Most judges, of course, would reason that the authority who put up the sign could not possibly have meant these things, and would not make this determination. But to textualists like Justice Scalia, or Chief Judge Frank Easterbrook of the Seventh Circuit, intent is not a relevant consideration, unless it can be disguised as something else.

Which brings me to another point about Expressio Unius - it involves reasoning about intent. To reach a conclusion that something that is not explicit in the text should be read into the text, one invokes Expressio Unius to reason that the person producing the text surely intended it to be in the text. It's an instance of the dog-not-barking type of reasoning that judges are rightly skeptical about, and it ought to be treated as such.

Why is Expressio Unius such a loose canon? My answer is focus structure, a topic I admit I know little about. Focus is used to highlight the part of an utterance which one wishes to contrast with unexpressed alternatives. For example, if I say "Do not remove CHAIRS from the lab," I'm implicitly authorizing the removal of items that contrast with chairs, but not implying anything about the removal of chairs from other labs.

The problem with laws and focus is that they're written down. In spoken English, the way to mark focus is stress and intonation, but these things are not recorded in written English.

I was gonna get a fishing/hunting license in Montana

... but now it seems like too much of a risk.

link added: appellate review

I've added a link to appellate review, an interesting-looking blog that tracks and summarizes disagreements among the circuit courts on how to interpret statutes.

Found via Statutory Construction Blog.

Loughlan on "theft" of intellectual property

Via Lawrence Solum's Legal Theory Blog, Patricia Louise Loughlan's short paper on a topic I've blogged before - whether copying CDs (etc.) is theft, but it's really more about the discourse of it.

Her position:

"The insulting and inflammatory language of theft... reduces a difficult policy debate, with significant economic and cultural consequences, to a crude and simplistic moral drama. “How do you tell the good guys from the bad guys”?"

Interestingly (and this is me thinking now, not Loughlan), my intuition is that the anarchist concept of theft - as in, "property is theft" - is more appropriate to intellectual property than tangible property. That's because anarchists object to the removal of goods from the public domain, where they can be enjoyed by all, into the private sphere where others are deprived of them. That removal is more contemptible in the case of easily reproducible intellectual property than in the case of tangible goods, because it deprives many more people of the good. A tangible good in the public sphere can only be in one place at any given time, so there are limits on how many people can enjoy it. Reproducible intellectual property could be used by many people in different places at the same time.

Contradictionary: Law and Economix

Law and Economix. n. The result of combining conventional concepts from two disciplines that depend on wrong assumptions about human nature and whose main purposes are social control rather than knowledge or justice.

Prescriptive note: One should use "economix" rather than "economics". This evokes the "Asterix" series of fantasy cartoons, as well as all those silly legal words ending in "-ix", such as "executrix" and "prosecutrix", not to mention "prolix".

Alligator with alligatrix
[Hat tip to Brian for this joke]