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.
Sunday, April 27, 2008
Friday, April 25, 2008
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:
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.
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 LABUsing 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.
Thursday, April 24, 2008
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.
Found via Statutory Construction Blog.
Friday, April 18, 2008
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.
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.
Thursday, April 17, 2008
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]
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]
Contradictionary: Legal Fiction
Legal Fiction. n. A proposition known or believed to be false, but presented as true for the purpose of determining the outcome of a legal proceeding or deriving a legal principle of general applicability. Roughly the judicial analogue of what would be called "fraud" if done by private individuals.
Monday, April 14, 2008
Lawsuit: Women Can't be President
Also via Language Log: A Nevada man files a lawsuit arguing that a woman can't be president because Article II of the Constitution uses masculine pronouns.
Is there any merit? And as a separate question, is there any chance it will succeed? [Bush v. Gore should demonstrate the importance of asking these questions separately.]
According to Jonathan Turley, the law professor quoted in the article in the Reno Gazette-Journal, the answer to both questions is no. The claim is meritless because "[t]he use of the masculine pronoun is a relic of the period" and "[t]he constitution has been amended to expressly incorporate women into the political system," and it won't succeed because "[n]o court would subscribe to this meritless argument."
Is he right? The Constitution has not been specifically amended to allow women to be president. Of course, anyone interpreting the Constitution sensibly would recognize that the intent behind the Constitution includes allowing women to run for president. But there are many judges, including US Supreme Court justices, who are committed to formulaic rather than sensible interpretations of the Constitution.
There's another issue: there is no provision which says a woman can't be president. The use of the masculine pronoun is presuppositional rather than assertive. One would think that a procedure should not be restricted by the use of presuppositions alone, without any indication of the intent to restrict. I'm not aware of this as a principle of interpretation, but it's sensible enough that a good judge would pick up on it.
Is there any merit? And as a separate question, is there any chance it will succeed? [Bush v. Gore should demonstrate the importance of asking these questions separately.]
According to Jonathan Turley, the law professor quoted in the article in the Reno Gazette-Journal, the answer to both questions is no. The claim is meritless because "[t]he use of the masculine pronoun is a relic of the period" and "[t]he constitution has been amended to expressly incorporate women into the political system," and it won't succeed because "[n]o court would subscribe to this meritless argument."
Is he right? The Constitution has not been specifically amended to allow women to be president. Of course, anyone interpreting the Constitution sensibly would recognize that the intent behind the Constitution includes allowing women to run for president. But there are many judges, including US Supreme Court justices, who are committed to formulaic rather than sensible interpretations of the Constitution.
There's another issue: there is no provision which says a woman can't be president. The use of the masculine pronoun is presuppositional rather than assertive. One would think that a procedure should not be restricted by the use of presuppositions alone, without any indication of the intent to restrict. I'm not aware of this as a principle of interpretation, but it's sensible enough that a good judge would pick up on it.
Monday, April 7, 2008
In Israel, it's the liberals who try to limit the meaning of "public accommodations"
Well, "public arenas" in Israel's case. The context: religious parties got a law passed prohibiting the sale of bread during the holiday of Passover, when bread is forbidden by Jewish law. But the law as it currently stands only applies to "public arenas," which according to the courts excludes grocery stores, restaurants and pizza parlors.
"Public accommodation," of course, is the wording in civil rights statutes in the US. Liberals prefer the term to be applied broadly, because various kinds of discrimination are illegal in such places. It certainly includes grocery stores, restaurants and pizza parlors.
This is one more reason why Israel needs a proper constitution. Or at least, why it should let the Palestinian majority vote in parliamentary elections.
"Public accommodation," of course, is the wording in civil rights statutes in the US. Liberals prefer the term to be applied broadly, because various kinds of discrimination are illegal in such places. It certainly includes grocery stores, restaurants and pizza parlors.
This is one more reason why Israel needs a proper constitution. Or at least, why it should let the Palestinian majority vote in parliamentary elections.
Sunday, April 6, 2008
Saturday, April 5, 2008
How to tell invalid from valid arguments
An example of an invalid argument:
An example of a valid argument:
This does not mean that if an argument does not end in Q.E.D., it is not valid. Many arguments - perhaps as many as an infinite number of them - do not end in Q.E.D., yet are valid. Aristotle gave several examples of valid arguments, and he lived before the properties of Q.E.D. were even discovered.
If an argument doesn't end in Q.E.D., determining whether it is valid is a complicated, multi-factored affair involving strokes, arrows and tonks. You pretty much have to be an expert to figure it out. Therefore, if matters of substantial consequence depend on the validity of the argument, hire a professional logician. Most professional logicians charge reasonable rates and can figure out validity in an hour or less. There's a directory here.
A note of warning: here are some logicians who are specialists, possessing expertise in things you've probably never heard of, like "many-valued logic" and "second order logic". They charge more per hour than ordinary logicians, but their specialized skills are not necessary for most kinds of argument. Better to be safe and call a regular logician first. They can always refer you to a specialist if they don't have the expertise for the task.
All men are moral.
Socrates is moral.
------------------
Socrates is a man.
An example of a valid argument:
The easiest way to tell a valid argument is to check if it ends in Q.E.D.. Formally speaking, Q.E.D. is a function from arguments to valid arguments. Therefore if an argument ends in Q.E.D., it is valid.
All men are moral.
Socrates is moral.
------------------
Socrates is a man.
Q.E.D.
This does not mean that if an argument does not end in Q.E.D., it is not valid. Many arguments - perhaps as many as an infinite number of them - do not end in Q.E.D., yet are valid. Aristotle gave several examples of valid arguments, and he lived before the properties of Q.E.D. were even discovered.
If an argument doesn't end in Q.E.D., determining whether it is valid is a complicated, multi-factored affair involving strokes, arrows and tonks. You pretty much have to be an expert to figure it out. Therefore, if matters of substantial consequence depend on the validity of the argument, hire a professional logician. Most professional logicians charge reasonable rates and can figure out validity in an hour or less. There's a directory here.
A note of warning: here are some logicians who are specialists, possessing expertise in things you've probably never heard of, like "many-valued logic" and "second order logic". They charge more per hour than ordinary logicians, but their specialized skills are not necessary for most kinds of argument. Better to be safe and call a regular logician first. They can always refer you to a specialist if they don't have the expertise for the task.
Contradictionaries
One of the themes of this blog is that dictionaries are not reliable enough descriptive tools to be usable as authoritative guides to the meanings of words in the legal system. See the blog entry on "if" for a hint of a critique.
There is, however, a class of dictionaries that I quite like, because they don't pretend to be authoritative, and on the contrary aim at being subversive in the best sense of the word. I'm calling them "contradictionaries" (a term borrowed from the rock band Nirvana). I refer, of course, to dictionaries like Ambrose Bierce's The Devil's Dictionary, John Ralston Saul's The Doubter's Companion, Edward Herman's Doublespeak Dictionary, and similar works.
I have added to this blog a links section for these contradictionaries. I may also add essays that have similar goals, such as Orwell's Politics and the English Language.
I believe that law is among the disciplines in which obfuscation and euphemism dominate. Yet I'm not aware of any law contradictionaries. If any reader knows of one, I'd appreciate it if she let me know. If not - there's a long term project for an enterprising person.
There is, however, a class of dictionaries that I quite like, because they don't pretend to be authoritative, and on the contrary aim at being subversive in the best sense of the word. I'm calling them "contradictionaries" (a term borrowed from the rock band Nirvana). I refer, of course, to dictionaries like Ambrose Bierce's The Devil's Dictionary, John Ralston Saul's The Doubter's Companion, Edward Herman's Doublespeak Dictionary, and similar works.
I have added to this blog a links section for these contradictionaries. I may also add essays that have similar goals, such as Orwell's Politics and the English Language.
I believe that law is among the disciplines in which obfuscation and euphemism dominate. Yet I'm not aware of any law contradictionaries. If any reader knows of one, I'd appreciate it if she let me know. If not - there's a long term project for an enterprising person.
Thursday, April 3, 2008
New Journal: the crit
There's a new publication out of the University of Idaho College of Law called the crit: a journal of critical studies that's just come out with its inaugural issue. I've had very little time to look at it, because Thursday is my 13-hour day, but it's looking good so far.
Pierre Schlag, the guest editor, contrasts the sophistication of modernist art, physics and philosophy with the primitive state of jurisprudential theory. As someone who has just started reading about legal philosophers like Hart, Fuller and Dworkin, I was very amused by the first page of his contribution.
Duncan Kennedy features in a big way. There's an audio/video interview/conversation with him about the politics of law school diversity; a Q & A about critical legal studies; and what appears to be a scanned CLS-themed newsletter from the '70's.
Other contributions by faculty and students look like they're addressing the kinds of questions that bug me about the legal world and legal academia. I'm hoping to read more soon.
Pierre Schlag, the guest editor, contrasts the sophistication of modernist art, physics and philosophy with the primitive state of jurisprudential theory. As someone who has just started reading about legal philosophers like Hart, Fuller and Dworkin, I was very amused by the first page of his contribution.
Duncan Kennedy features in a big way. There's an audio/video interview/conversation with him about the politics of law school diversity; a Q & A about critical legal studies; and what appears to be a scanned CLS-themed newsletter from the '70's.
Other contributions by faculty and students look like they're addressing the kinds of questions that bug me about the legal world and legal academia. I'm hoping to read more soon.
Wednesday, April 2, 2008
Static/Dynamic Ambiguities
The English -ing and -ed suffixes are rich sources of ambiguity. The former can mark nouns, adjectives and verbs:
The latter can mark verbs and adjectives:
I'll focus on ambiguity with -ed in this post. These ambiguities arise in circumstances that tolerate both verbs and adjectives, such as (1) in predicate position following a form of the verb be, and (2) in certain post-nominal (i.e. following the noun) restrictive phrases. For example:
It's actually more complicated than a verb/adjective distinction (see this paper by Angelika Kratzer, for instance), but we'll keep things simple and refer just to this distinction. This situation can cause problems because it can lead to textual ambiguities between a reading more focused on an event and a reading more focused on a state.
For example, territories occupied in the recent conflict can refer to those territories that were seized during the recent conflict (the more event-focused reading), or to the territories that were in the state of being occupied for the duration of the recent conflict. Suppose a country occupied a bunch of territory in 1948, and then in a conflict in 1967 occupied a bunch more territories. Then a resolution requiring the country's armed forces from "territories occupied in the recent conflict" is ambiguous between a requirement to leave the 1967-occupied territories and a requirement to leave both the 1948- and 1967-occupied territories.
As you may have guessed, this is not strictly a hypothetical. The text is from United Nations Security Council Resolution 242, passed in November 1967, a few months after the conflict between Israel and the Arab states. I'm dealing with this text as my proposed note topic, but I'm treating a different issue: the controversial question of whether "territories occupied in the recent conflict" is universally or existentially quantified. But a friend of mine, who I'll call "Mr. S"*, pointed out this static/dynamic ambiguity, which I hadn't previously noticed.
Another non-hypothetical is the following text: "Any claim arising in respect of... the detention of any goods or merchandise by any officer of customs...." The case is Kosak v. United States, 465 U.S. 848 (1984), and the controversy is whether the text, which immunizes the United States from tort suits for claims that it describes, describes only claims arising from the act of detention, i.e. the seizure of the goods or merchandise, or whether it also covers claims arising from the state of detention, e.g. damage sustained while the goods or merchandise are in the government's storage warehouses. At least, I think that's what the dispute is - it's kind of hard to understand, and both Justice Marshall's majority opinion and Justice Stevens' dissents focus on the words arising in respect of rather than detention.
It has been suggested that there should be canons of drafting legislation to parallel canons of interpretation. Here's my prescription for drafters: Mind your Eds and your Ings! Or for the more formally inclined: Mind your participles and your gerunds!
-----------
* His real name is Brian Polis
Noun: The happening took place yesterday.
Adjective: This is a pretty happening party.
Verb: I can't believe this is happening!
The latter can mark verbs and adjectives:
Verb: I stained the glass with paint.
Adjective: Stained glass adorned the church.
I'll focus on ambiguity with -ed in this post. These ambiguities arise in circumstances that tolerate both verbs and adjectives, such as (1) in predicate position following a form of the verb be, and (2) in certain post-nominal (i.e. following the noun) restrictive phrases. For example:
(1) The glass was stained.
(2) I missed the building obscured by the truck.
It's actually more complicated than a verb/adjective distinction (see this paper by Angelika Kratzer, for instance), but we'll keep things simple and refer just to this distinction. This situation can cause problems because it can lead to textual ambiguities between a reading more focused on an event and a reading more focused on a state.
For example, territories occupied in the recent conflict can refer to those territories that were seized during the recent conflict (the more event-focused reading), or to the territories that were in the state of being occupied for the duration of the recent conflict. Suppose a country occupied a bunch of territory in 1948, and then in a conflict in 1967 occupied a bunch more territories. Then a resolution requiring the country's armed forces from "territories occupied in the recent conflict" is ambiguous between a requirement to leave the 1967-occupied territories and a requirement to leave both the 1948- and 1967-occupied territories.
As you may have guessed, this is not strictly a hypothetical. The text is from United Nations Security Council Resolution 242, passed in November 1967, a few months after the conflict between Israel and the Arab states. I'm dealing with this text as my proposed note topic, but I'm treating a different issue: the controversial question of whether "territories occupied in the recent conflict" is universally or existentially quantified. But a friend of mine, who I'll call "Mr. S"*, pointed out this static/dynamic ambiguity, which I hadn't previously noticed.
Another non-hypothetical is the following text: "Any claim arising in respect of... the detention of any goods or merchandise by any officer of customs...." The case is Kosak v. United States, 465 U.S. 848 (1984), and the controversy is whether the text, which immunizes the United States from tort suits for claims that it describes, describes only claims arising from the act of detention, i.e. the seizure of the goods or merchandise, or whether it also covers claims arising from the state of detention, e.g. damage sustained while the goods or merchandise are in the government's storage warehouses. At least, I think that's what the dispute is - it's kind of hard to understand, and both Justice Marshall's majority opinion and Justice Stevens' dissents focus on the words arising in respect of rather than detention.
It has been suggested that there should be canons of drafting legislation to parallel canons of interpretation. Here's my prescription for drafters: Mind your Eds and your Ings! Or for the more formally inclined: Mind your participles and your gerunds!
-----------
* His real name is Brian Polis
Tuesday, April 1, 2008
The formalism fetish
The legal world is easily impressed by formalism.
For example, suppose a judge is called upon to decide what constitutes negligence, and says:
"To determine whether an act is negligent, we must balance the costs to the defendant of ensuring that no harm comes about against the probability of harm occurring and the magnitude of the possible harm."
I would say that's a sensible judge. So would the legal community.
But if the judge used symbols to represent the concepts in that statement, and specified that we take the product of the probability of the harm occurring and the magnitude of the possible harm, the reaction would be totally different.
I would still say that's a sensible judge. The legal world, however, would say: "OH MY GOD! WE CAN USE SYMBOLS TO REPRESENT A COMMON SENSE CONCEPT! THIS GUY IS THE MOST BRILLIANT JURISPRUDE IN THE WORLD! LET'S NAME A BODY PART AFTER HIM! LET'S FOUND AN INFLUENTIAL SUBFIELD OF LAW ON THE BASIS OF THIS FORMULA, WHICH WILL USE A CLOAK OF FORMALITY TO DISGUISE THE FACT THAT IT BEARS ONLY A PARTIAL AND TENUOUS RELATIONSHIP TO REALITY!"
The body part I'm referring is, of course, the hand; the formula is B < PL; and the pseudodiscipline is Law and Economix. The lesson: If you want to really impress legal professionals, dress up an ordinary insight in formal clothing.
EDIT (April 5): ANNOUNCING the Law Formalization Project; wherein from time to time I suggest ways to formalize legal ideas.
For example, suppose a judge is called upon to decide what constitutes negligence, and says:
"To determine whether an act is negligent, we must balance the costs to the defendant of ensuring that no harm comes about against the probability of harm occurring and the magnitude of the possible harm."
I would say that's a sensible judge. So would the legal community.
But if the judge used symbols to represent the concepts in that statement, and specified that we take the product of the probability of the harm occurring and the magnitude of the possible harm, the reaction would be totally different.
I would still say that's a sensible judge. The legal world, however, would say: "OH MY GOD! WE CAN USE SYMBOLS TO REPRESENT A COMMON SENSE CONCEPT! THIS GUY IS THE MOST BRILLIANT JURISPRUDE IN THE WORLD! LET'S NAME A BODY PART AFTER HIM! LET'S FOUND AN INFLUENTIAL SUBFIELD OF LAW ON THE BASIS OF THIS FORMULA, WHICH WILL USE A CLOAK OF FORMALITY TO DISGUISE THE FACT THAT IT BEARS ONLY A PARTIAL AND TENUOUS RELATIONSHIP TO REALITY!"
The body part I'm referring is, of course, the hand; the formula is B < PL; and the pseudodiscipline is Law and Economix. The lesson: If you want to really impress legal professionals, dress up an ordinary insight in formal clothing.
EDIT (April 5): ANNOUNCING the Law Formalization Project; wherein from time to time I suggest ways to formalize legal ideas.
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