A Linguist Goes to Law School

Here's a desperately needed canon of construction

2010-07-21T13:01:00.000-04:00

The Choose Life Canon: If a statute is ambiguous, and interpreting it one way will save many more people's lives than interpreting it the other way, interpret it so it saves more people's lives.

For an illustration, see FDA v. Brown and Williamson Tobacco Corp., 529 U.S. 120 (2000). The FDA had interpreted Congress's delegation to it of authority to regulate "drugs" and "devices" to include the authority to regulate tobacco products such as cigarettes. Consequently it established regulations aimed at reducing the likelihood that children would take up smoking. The tobacco companies sued, arguing that that there was no Congressional grant of regulatory authority to the FDA.

The arguments included many interpretive rules, and on the basis of several of these, the majority sided with the tobacco companies. On the basis of several other rules, four justices dissented. Underlying parts of Justice Breyer's dissent was an idea that looks like a more particular instance of the canon I'm proposing: "In my view, where linguistically permissible, we should interpret the FDCA in light of Congress’ overall desire to protect health."

Maybe if the majority had accepted the Choose Life Canon, hundreds of thousands of lives might have been saved.

I suppose the principle can be generalized, as follows:

If a statute is ambiguous, and interpreting it one way causes greater social benefit than interpreting it the other way, interpret it so it causes greater social benefit.

The philosophical basis for such a canon is pretty straightforward: the purpose of the law is the common good, so the courts, which uphold the law, should err on the side of the common good.

There is also a division of powers rationale: The purpose of the legislature is to promote the common good, so the court ought to suppose that the legislation is aimed at the common good.

A paradox in bankruptcy law

2010-02-17T07:34:00.000-05:00

And now for something completely different: a possible legal paradox.

(The further thoughts I promised on the SCAT hypothesis are coming soon.)

Consider the following situation:

A debtor walks into a lawyer's office and declares that he's bankrupt. The lawyer advises him that a declaration of bankruptcy might be more legally effective if done in a formal legal proceeding. The debtor says okay, and asks the lawyer to represent him in such as proceeding. She agrees. The debtor and the lawyer sign a contract where the lawyer agrees to represent the debtor for a flat fee of $2000, payable in quarterly installments of $500, with the entire agreement being subject to the court's agreeing to appoint the lawyer as the debtor's representative – a necessary procedure under bankruptcy law.

The lawyer petitions the bankruptcy court to be appointed as the debtor's representative. The court reasons as follows:

If we appoint the lawyer, she becomes a creditor of the debtor she's representing.
If she's a creditor, she has a potential conflict of interest, since her duties to the client include trying to discharge as many of his debts as possible.
Since a lawyer cannot be in such a potential conflict of interests with her client, we cannot permit the appointment.

But by not appointing her, the court prevents the conflict of interest from arising. And in the absence of a potential conflict of interest, there is no reason not to appoint the lawyer, and the court ought to appoint her.

And repeat.

Of course, the court has the discretion to disqualify the lawyer for any other good reason, including that representation would give rise to a paradox. But this gives rise to the same problem: if the court doesn't appoint her, it does not give rise to a paradox, meaning the court should appoint her.

This may fall short of a genuine paradox, since the lawyer probably does not have an actual right to be appointed, subject only to a good reason not to appoint her. The court would certainly be right to disqualify her. I just don't know why.

The SCAT hypothesis of meaning and the textualist fallacy

2010-01-12T20:25:00.001-05:00

The SCAT hypothesis of meaning holds that the components of meaning are Structure, Context, And Text, not necessarily in that order. I name this hypothesis and make it explicit because it is common to suppose, to the contrary, that meaning is determined only by text. This erroneous supposition I call the "textualist fallacy."

It is easy to show that meaning is more than the sum of the words in a text. The fact that "Oscar is taller than Nigel" does not mean the same thing as "Nigel is taller than Oscar," despite the fact that they contain exactly the same words, is proof enough. This, however, can be explained by invoking linearity rather than structure or context, so it does not prove that structure and context are components of meaning.

But there is abundant evidence that structure contributes to meaning. For example, the phrasal ambiguity as in "old men and women adore me" (the subject is either old men and all women, or old men and old women) is not explained by word order, but is explained by assuming an internal structure for the sentence. If "old" is grouped with "men" and the result grouped with "and women," then we get the first meaning. If, on the other hand, "men" is first grouped with "and women" and the result is grouped with "old," we get the second meaning. Since different structures give rise to different meanings, structure must play a role in determining the meaning.

There is also abundant evidence that context contributes to meaning. In "John's pen," for example, we don't know the nature of the relationship between John and the pen until we have some context. In a context-free environment like I just presented, it is natural to interpret the relation as ownership, such that John owns the pen. But put in other contexts, many other relations are possible. John could be the creator of the pen, the inventor of the kind of pen, the person who is currently holding the pen, or even just the person who pointed to the pen.

The examples of the contribution of structure and the contribution of context are single examples of phenomena that are pervasive. To see the pervasiveness of context, take the meaning of any extended text, comparing it to the meaning of each individual word, for example by looking it up in a dictionary. Many words will have multiple definitions (and even the best dictionaries significantly understate the number of senses of many words), but the extended text will permit far fewer meanings than the product of the definitions of the words. This is because context will eliminate many of the theoretically possible meanings.

To see the pervasiveness of structure, read an introduction to linguistic analysis, such as Steven Pinker's The Language Instinct.

The SCAT hypothesis represents the narrowest possible theory consistent with the basic realities of language. It may be that other factors, like linearity, will have to be added.

The textualist fallacy is not something I just invented for pedagogical reasons. People fall for it all the time. Even legal scholars fall for it. In separate posts I will show how a recent scholarly paper falls for the textualist fallacy, and I will suggest that even the Supreme Court fell for it in a landmark opinion.

The textualist fallacy: trying to impute meaning to "of"

2009-12-21T21:51:00.007-05:00

I've promised an example of the textualist fallacy in legal scholarship. Recall that the SCAT hypothesis holds that the components of meaning of a legal text (and all other texts, really) are structure, context and text, while the textualist fallacy happens when one assumes that meaning comes only from text.

Since today is oral argument day in McDonald v. Chicago, I'll illustrate with an example from commentary on the case. In McDonald, the U.S. Supreme Court will decide whether the Second Amendment's individual right to keep and bear arms is incorporated against the states under the Fourteenth Amendment, or whether it is restricted to the right against the federal government that was found in D.C. v. Heller.

A bit of background explanation may be in order, for readers who know even less constitutional law than I do. Besides the equal protection clause, ection 1 of the Fourteenth Amendment, passed in 1868, contains two clauses that would seem to restrict the ability of states to interfere with individual freedoms of citizens: the privileges or immunities clause (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”), and the due process clause (“nor shall any state deprive any person of life, liberty, or property, without due process of law”). It is generally agreed that the effect of these is to create rights against the states parallel to the rights that exist against the federal government, which is known as incorporating those rights against the states.

Not all rights against the federal government are incorporated against the states. For example, the Seventh Amendment's right to a jury trial has been held not applicable against the states. Other rights have not been adjudicated yet, most saliently the right to keep and bear arms, which was held less than two years ago to include an individual right to possess weapons, in District of Columbia v. Heller. The defendant in that case was the federal government, because the District of Columbia is not a state. McDonald will decide whether one of the Fourteenth Amendment's incorporation clauses protects this right against the states as well.

This is a pretty big question, but McDonald is actually bigger, because the Supreme Court will consider both Fourteenth Amendment clauses as bases for incorporating the right, instead of just the Due Process clause, as it usually does. This is seen by many as an opportunity to correct a historical wrong in the interpretation of the clauses. The privileges or immunities clause may seem, to the ordinary reader, to be more powerful than the due process clause, because it prohibits state interference with substantive rights of citizens, while the due process clause appears to refer only to procedural rights such as the right to a fair trial. In reality, it has almost always been the due process clause that has been used to incorporate rights against the state, including substantive rights. The privileges or immunities clause, on the other hand, has hardly been held to protect anything at all.

Many people are irked by the court's failure to give effect to the privileges or immunities clause, and many of the same and others are irked by the court's creation of substantive rights under the due process clause, where the Constitution seems to only state procedural rights. It is therefore hoped by many that the Supreme Court will “resurrect” the privileges or immunities clause as a source of substantive rights against the states, and perhaps take the offending substance out of the due process clause.

In anticipation of the Court's discussion of the privileges or immunities clause, commentators are discussing how this clause might and should be interpreted. In this connection, Christopher R. Green wrote McDonald v. Chicago, the Meaning-Application Distinction, and “Of” in the Privileges or Immunities Clause, which falls into the textualist trap by claiming that the controversy about the meaning of the privileges or immunities clause is a controversy over the meaning of the word “of.”

What is the controversy over the meaning of the privileges or immunities clause? Green presents the following as some of the possible (and plausible) interpretations of “privileges or immunities of citizens of the United States.”

a. Rights “'which owe their existence to the Federal government, its National character, its Constitution, or its laws.'”

b. Rights “[p]ossessed under the Constitution against the federal government by” citizens of United States.

c. Rights “[g]enerally possessed under state constitutions, statutes and common law by” citizens of the United States.

d. Rights “[g]enerally possessed in 1868 under state constitutions, statutes and common law by” citizens of the United States.

e. Rights “[p]ossessed as a matter of natural right by” citizens of the United States.

f. Rights “[p]ossessed locally by” citizens of the United States.

The controversy is therefore not about whether “privileges or immunities” refers to something other than rights; it is over what “rights” means in this context, and specifically, in Green's words, “the relationship that a right must bear to 'citizens of the United States' to count.” He then continues, “[W]hich is to say, over the meaning of 'of',” which, I argue, is where he errs.

Green's argument can be presented as follows:

1.The phrase “privileges or immunities of citizens of the United States” has several plausible interpretations, and its meaning is controversial.

2.Therefore it is ambiguous.

3.If a sentence is ambiguous, one of its components must be ambiguous.

4.The meaning of “privileges or immunities” is uncontroversial. It means “rights.”

5.The meaning of “citizens of the United States” is also uncontroversial.

6.The only leftover text is “of.” Therefore the ambiguity is in the word “of.”

Green thus falls into the textualist trap by using a sensible-seeming principle: when you have eliminated the uncontentious, whatever remains, however semantically empty, must be the source of contention. The problem is that eliminating all the text but one word doesn't just leave the one word. Under the SCAT hypothesis, It leaves one word plus all of the invisible, non-text components of meaning: the structure and context.

I would locate the ambiguity not in the word “of” but in the context. “Right” is a modal word, and modals are notoriously dependent on context for their meaning. “Right” is modal because whether something is a right or not must be resolved by reference to possibility, rather than the actual world. You can't tell if something is a right by determining whether someone does it, since rights don't have to be exercised. Philosophers and semanticists model modals using possible worlds, so that something is possible if it happens in some possible world with the relevant characteristics, and something is necessary if it happens in every possible world with the relevant characteristics. The indeterminacy of the privileges and immunities clause arises from what the relevant characteristics are in the set of possible worlds that we consider when evaluating the word “right.”

That may sound circular, but it is actually not. The semantic meaning of the word “right,” if I'm theorizing it correctly, is a function which (in essence) takes as an input an individual X and an action E, and returns the value “TRUE” if and only if there is a world W in which X does E, and W is in a certain set of possible worlds. The particular meaning of “right” will emerge from the choice of sets of worlds. Green's meaning 1, above, might pick out the set {w1, w2, w3}, where the w's represent possible worlds, while his meaning 2 might pick out {w1, w2, w3, w4}. The word “rights” doesn't show up at this level - it is inherent in the set; and the different possible meanings for “right” are the criteria by which the membership in the sets is picked out.

The alternative, that “of” is many ways ambiguous, just doesn't work. We all have the intuition that “of” has little, if any, semantic content. I know of no evidence that “of” is modal, so it is not possible to blame the indeterminacy of the privileges or immunities clause on a function that selects possible worlds for placement in a set, as we can do with “right.” If “of” means anything, it might mean something like “a function from a whole to the set of its parts,” which at least accounts for one type of phrase containing “of” - the type seen in “three of the boys.”

More likely, “of” is just like the pleonastics “it” and “there,” which are believed to carry no meaning in sentences like “it is better to have loved and lost than never to have loved at all,” and “there lived a country boy named Johnny B. Goode.” “Of” is probably just a placeholder like the other pleonastics, which must be vocalized for syntactic or morphological or phonological reasons, but which contribute no meaning of their own.

None of this is to pick on Green, who appears, unlike some jurists who write about language, to have some sophistication in the subject. Nor is it to disagree with his conclusions about what the plausible interpretations of the privileges or immunities clause are, or about his conclusion of which interpretations are the best options – topics I am not competent to broach. I wrote this post simply to illustrate the textualist fallacy, and I used Green's paper as illustration because I happened to have recently read it. And the fact that someone like Green can fall for the textualist fallacy suggests that everyone should be on the alert for it.

The linguistics of God

2009-11-22T10:08:00.004-05:00

Is God a linguistic object? The results of two very brief explorations suggest different conclusions.

In one of his pornolinguistic papers, James D. McCawley, writing as Quang Phuc Dong of the South Hanoi Institute of Technology (beating Accepted to the joke by about 40 years) explores subjectless sentences like "fuck you" and "damn you." He argues convincingly that they are not imperatives, but is unable to advance a meaningful alternative analysis.

One of the alternatives that he considers and discards posits that such sentences have God as the subject in their underlying representations, followed by a deletion transformation creating the appearance of subjectlessness in their surface representations. Like so:

UR: God fuck you.
DT: God --> Ø /subject position
SR: Fuck you.

Besides accounting for the absence of a subject, this analysis has the advantage of being acceptable to both atheists and theists. Atheists can call it "God-deletion," while theists can invoke the hidden hand of God.

Ultimately, this analysis doesn't work. Besides not being very explanatory, there is the fact that you cannot say *"Fuck himself" to mean "fuck God.," but you can say "Fuck God" to mean "Fuck God." This should not be possible if God is the hidden subject.

So subjectless sentences are not good evidence for God. But there is better evidence from Hebrew negative imperatives.

As I think I pointed out in my masters thesis (I haven't organized my books since I moved last month, and finding the thesis would be a hassle), the normal way to express negation in Hebrew suppletive imperatives is with the use of the negative al:

(1) al tircax oto!
neg murder.2.masc.sg.fut him.DO
"Don't murder him!"

However, if God is issuing a commandment, the proper form of the negative is lo:

(2) a. lo tircax!
b. ?al tirtzach!
"Thou shalt not kill!"

The sentences with al is shown with a question mark to indicate that the utterance, while not unacceptable, is ungodly. That is, if God uttered (2b), it would be interpreted as carrying less than the full authority and timelessness of one of God's commandments.

The pattern in (1)-(2) is decent prima facie evidence of the existence of God, at least as a morphological phenomenon. I propose to formalize this by subscripting either [+God] or [-God] to morphemes, depending on whether they are or are not godly. Thus al would be represented

Neg_{[+imp, -God]}

while lo would be represented

Neg_{[+imp, +God]}.

Can a non-God speaker use lo? My intuition as a semi-native speaker is that this is possible, but it would be interpreted as a "godly" statement. So for example an emperor might use lo to issue an edict, but it would be seen as extremely arrogant language, such as that of a megalomaniac who thinks he is as great as God. It would not be used by someone like a judge or a democratic political figure, even if it the statement was completely authoritative.

Can God use al? Yes. If God was speaking to a person in a more private capacity, rather than issuing universal commandments, Gods would use al. In fact, he did so all the time in the Bible. So for example, when God played a practical joke on Abraham, and had him bind Isaac to an altar and get ready to sacrifice him, he used al to tell Abraham not to harm Isaac after all. The key to godly language is that it expresses a universal, principled prohibition, not just a particular "don't do this."

I know of no evidence of the existence of God in nonimperative morphology. There are many mysteries in the morphology of imperatives, both in Hebrew and more universally. Whether the presence of God in imperative morphology advances linguistic research remains to be seen. But it sure is fun to think about.

Global Language Map

2009-03-19T15:57:00.001-04:00

Here’s a nice-looking, if very coarse-grained, map of the languages of the world. It shows the most widely spoken languages, but continent. I’m posting it mostly because I had not been aware, until I saw the data on the map, just how much less linguistically diverse North America is than any other continent shown.

But I guess that result is only due to the fact that Australia is not counted as a separate continent, but rather as part of “Asia and Pacific,” so that its overwhelmingly English-speaking population is drowned out by the languages of China, Indonesia, Japan and Indonesia.

Shooting into a structure from within it

2009-03-12T10:58:00.004-04:00

The Statutory Construction Blog points out this Pennsylvania opinion which asks whether one can shoot into a building that one already occupies. The court holds that one can't, since "the plain meaning of the term “into” requires that the original location is outside of the destination."

The statute in question declares the following:

A person commits an offense if he knowingly, intentionally, or recklessly discharges a firearm from any location into an occupied structure.

Unfortunately, the court resorts to looking up "into" in the dictionary, but in this case the practice did not lead the court to the wrong result.

The government's main argument was that "from any location" is so broad that it must include any place inside the occupied structure.

I think the court got it right. If "from any location" is taken literally, we have a contradiction between this phrase and "into," which either makes the law self-contradictory, or requires that the law be constructed or interpreted in a non-contradictory way. In this case, there is no need for the court to construct a rule, because pragmatic principles of interpretation plainly allow us to limit "from any location" to mean "from any location outside the structure." The domain of "any" is more flexible than the requirement that the path described by "into" start outside of the locational reference point.

Transcript from Flores-Figueroa

2009-03-05T23:23:00.001-05:00

Here. Argument recap here.

What is Language and Law?

2009-03-05T23:10:00.001-05:00

Peter Tiersma asks: What is Language and Law? And Does Anyone Care?

I care! The paper is from the volume LAW AND LANGUAGE: THEORY AND SOCIETY, which I don’t know much about, because the product descriptions online are in a foreign language.

Solum on Possibility and Necessity in Law

2009-02-20T07:20:00.002-05:00

Prof. Solum suggests that arguments about legal possibility and necessity can be sharpened by using the possible worlds approach to modality. Quite possibly so. The possible worlds approach is fascinating (to me, at least) and it's useful philosophical knowledge in any case. In my note, I argued that it was Justice Scalia's failure to attend to the difference between universal and existential modality (the feature that distinguishes possibility from necessity) that led him to reason wrongly about the meaning of the Second Amendment in D.C. v. Heller.

Another Linguists' Brief

2009-02-17T10:12:00.002-05:00

The Supreme Court has agreed to hear Flores-Figueroa v. United States. Oral argument is set for next Wednesday, Feb. 25th. As in Hayes, there is a linguists' amicus brief on behalf of neither party (authored by the same attorney). Amici this time are Tom Ernst, Georgia Green, Jeffrey Kaplan and Sally McConnell-Ginet, and the subject matter is adverbs. In particular, the interpretation of the phrase knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, and whether a means of identification of another person is in the scope of knowing. The conclusion: unambiguously yes, unless the reader adopts the not very natural de re reading.

By the way, oral argument in Hayes was full of linguistic discussion. Also, Chief Justice Roberts learned a new word, "romanette."

Summary of my second amendment paper

2009-01-17T09:20:00.005-05:00

I've made some promises to some people about trying to summarize my paper about the linguistics of the second amendment. Here is my attempt. The full paper is available here (the website makes you wait 90 seconds before downloading, since I signed up for a free membership; the delay is their way of motivating people to get paid memberships).

The issue is as follows: In the Supreme Court case of D.C. v. Heller (discussed previously on this blog here, here and here), Justice Scalia, author of the majority opinion, and Justice Stevens, author of one of the two dissents, disagree over whether the absence of the word to, bracketed in the following, is semantically significant.

The right of the people to keep and [to] bear arms shall not be infringed.

Justice Stevens reports the intuition that the absence of to supports the conception that the amendment does not protect two separate rights, but rather a single right,

a right to have arms available and ready for military service, and to use them for military purposes when necessary.

Justice Scalia disagrees:

JUSTICE STEVENS resorts to the bizarre argument that because the word "to" is not included before "bear" (whereas it is included before "petition" in the First Amendment), the unitary meaning of "to keep and bear" is established. Post, at 16, n. 13. We have never heard of the proposition that omitting repetition of the "to" causes two verbs with different meanings to become one. A promise "to support and to defend the Constitution of the United States" is not a whit different from a promise "to support and defend the Constitution of the United States."

Both Stevens and Scalia appear to be correct in the judgments that they report, which means that as far as interpreting the Constitition, Stevens is correct and Scalia is incorrect. Scalia makes the error of dismissing an English speaker's intuition about the language of the second amendment by theorizing about linguistics. The purpose of my paper is to show why Scalia's reasoning about linguistics is wrong.

The task, then, is to identify the property of the sentences that makes the presence of to significant in the Constitution, but not significant in Scalia's example sentences. I argue that of the various differences between the sentence pairs (such as the definiteness or indefiniteness of the phrase, and the definiteness and plurality of the object [arms vs. the Constitution of the United States]), the key difference is between right and promise, and the important difference between these two modal nouns is the quantificational force - the fact that right denotes an existential modal noun while promise denotes a universal modal noun.

That the difference is due to right and promise is evidenced by the following sentence pairs, where the sentences are to the extent possible held constant except for right vs. promise, and the presence vs. absence of to.

Right:
a. Workers have the right to unionize and strike

b. Workers have the right to unionize and to strike

Promise:
a. The workers made a promise to unionize and strike

b. The workers made a promise to unionize and to strike

In the case of right, there is a clear truth-conditional difference between the sentences. The (a) sentence does not seem to be asserting an absolute right to strike; rather, the right to do so is contingent on their first having unionized. In the (b) sentence, the right to strike is unconditional.

In the case of promise, there is no such difference. In both (a) and (b) there are two independent promises. If the workers made the promise in (a) and then broke their promise to unionize, their commitment to strike still stands.

So the question is why right is different from promise. As I've suggested, my approach is that it has to do with the quantificational difference between the terms. Right is an existential modal: X has a right to do R if in some possible world consistent with X's rights, X does R. Promise is a universal modal: if X has made a promise to do P, then X does P in every world consistent with X's commitments.

What difference does the quantificational force make? Well, consider the following truth conditions.

a. "A has the right to keep and bear arms" is true iff in some world w in the set W, where W is the set of worlds consistent with A's rights, A keeps arms in w and bears arms in w.

b. "A has the right to keep and to bear arms" is true iff in some world w in the set W, where W is the set of worlds consistent with A's rights, A keeps arms in w, and in some world w' in the set W, where W is the set of worlds consistent with A's rights, A bears arms in w'.

These are different truth conditions. (a) unifies the keeping of arms and the bearing of arms by requiring them to take place in the same possible world, while in (b) they can occur in separate worlds, and are therefore independent rights. But if the quantificational force is existential, the truth conditions come out logically equivalent:

a. "A has made a promise to support and defend the Constitution" is true iff in every world w in the set W, where W is the set of worlds consistent with A's promises, A supports the Constitution in w and A defends the Constitution in w.

b. "A has made a promise to support and to defend the Constitution" is true iff in every world w in the set W, where W is the set of worlds consistent with A's promises, A supports the Constitution in w, and in every world w' in the set W, where W is the set of worlds consistent with A's promises, A defends the Constitution in w'.

This gets us the semantic difference between right and promise, and therefore accounts for our intuitions about the second amendment and Scalia's attempted counterexample. The rest of the paper aims to justify the truth conditions just shown, by arguing for syntactic structures and semantic analysis of these sentences.

In the syntax section of my paper, I argue that the presence or absence of to is probative of a substantial structural difference. So the reason that the right to keep and bear arms means something different from the right to keep and to bear arms is not the lexical semantics of the word to, but the fact that in the former sentence it is just the verbs keep and bear that are conjoined, while in the latter, the full infinitival clause is conjoined. The conjunction is indicated in the following:

a. The right of the people PRO to [keep and bear] arms
b. The right of the people [PRO to keep arms and PRO to bear arms]

[Explanations: PRO is the invisible subject of the infinitival clause; the first instance of "arms" in (b) is phonetically deleted by a process that I can only guess at - it's not a fantastic analysis, but it beats the alternatives.]

Given this syntactic analysis, the logical forms are determined by the semantics as follows. Keep and bear each denote functions from entities (their direct object) to sets of events. So in the sentence John kept his house, the function denoted by keep takes as an argument the entity John's house, and returns the set of events of keeping John's house. I think the semanticists are calling this the neo-Davidsonian or the semi-Davidsonian approach to verb meanings - I've always had trouble keeping these terms straight.

In (a), keep and bear are conjoined. The semantic result is that the truth conditions of each are required. So the meaning of the conjunction is a function from an entity (the direct object of the conjoined verb) to a set of events - the set of events in which the object is both kept and borne.

To takes a set of events as input, and returns a function from entities to sets of worlds in which the entity is the agent of the appropriate type of event in the world. For example, in PRO to keep and bear arms, to takes as its first input the set of events of keepoing and bearing arms, then takes PRO as its entity argument, and returns as the meaning of the infinitival clause the set of worlds in which there is an event of keeping and bearing arms of which PRO is the agent. Ultimately, the truth condition of (a) makes the people the referent of PRO, and compares this set of worlds with the set of worlds consistent with the rights of the people.

The semantic analysis of (b) is more complicated, and requires some creativity of analysis. The meanings of PRO to keep arms and PRO to bear arms are determined straightforwardly - they denote the sets of worlds in which there are events of keeping or bearing arms, respectively, with PRO as the agent of the events.

The challenge is dealing with the conjunction. The ordinary approach to conjoining two sets of worlds would be to create a new set of worlds such that the conditions of both of the sets are met. In this case, the result would be the set of worlds that contain an event of PRO keeping arms and an event of PRO bearing arms. The rest of the semantic analysis would be the same as for (a): PRO would be assigned the meaning "the people," and the set would then be compared with the set of worlds consistent with the rights of the people.

The problem is that this does not match our intuition about the meaning of the sentence. We tend to interpret the right to keep and to bear arms as equivalent to the right to keep arms and the right to bear arms, yet this is not the result of the most straightforward semantic analysis.

The problem seems to be this: in conjunctions such as this one, the conjunction appears to take very wide scope, in effect to be conjoining entire propositions, even if the syntax makes it look like the conjunction is more local. In this case, it is only the infinitival clause that is conjoined syntactically, though semantically it is the propositions that are conjoined. My suggestion is that this syntax/semantics disparity takes place where the conjoined object is an argument rather than a function; that is, when the combinatory operation that the conjoined object participates in is one in which it is "fed into" the meaning of the adjacent object, as in (b), where the set of worlds denoted by the infinitive is one of the arguments of the (denotation of the) word right.
Not, as in (a), one in which the conjoined object takes the adjacent element as an argument, as in (a) where the conjoined verb takes the direct object arms as an argument.

What I propose, then, is that we need a different rule for interpreting conjunctions in situations in which the conjunction is an argument. What I suggest, without presenting a real formal analysis, is that whenever the semantics encounters a conjunction, it assigns it the meaning of the set of conjuncts. So in the case of keep and bear, the meaning is the set consisting of two functions from entities to sets of events, while in the case of PRO to keep arms and PRO to bear arms, it is the set consisting of two sets of worlds.

This set then has the option of either undergoing the traditional conjunction rule and combining with an argument, or of undergoing a new operation and feeding into a function. The new operation consists of creating two separate semantic derivations that are conjoined at the proposition level. So the two sets of worlds in (b) will each, independently, combine with right, yielding a proposition, and those two propositions will be conjoined.

I haven't seen such a procedure suggested before, but it looks like it can handle the syntax/semantics mismatch in the scope of coordination, and it does it without any "looking ahead" by the semantic derivation to see the future interactions of the coordinated object. The derivational mechanism always treats a conjunction the same way - it creates a set of the conjuncts; and what eventually happens to this set is determined by what possibilities exist at the time the conjunction goes to combine with an adjacent object.

Whew. Any questions?

Vagueness vs. Ambiguity

2008-11-23T11:39:00.003-05:00

Prof. Solum discusses vagueness vs. ambiguity, and the relationship between this distinction and the interpretation/construction decision, here.

I would characterize the difference in terms of linguistic architecture, as follows:

Ambiguity is what occurs when the sound or textual output matches more than one possible linguistic expression, where a linguistic expression includes a sound output, a meaning output, and the procedure that generates the pair of outputs. Ambiguity is the result of the fact that sounds and meanings do not perfectly correspond to one another.

Vagueness is what occurs when the meaning output of a linguistic expression, or a part thereof, corresponds to a concept (in our case, a legal concept) without clear boundaries. Vagueness is the result of the fact that our conceptual system is incomplete, so that it is not always known whether a certain object, for example, falls in a particular category. It is a necessary result in light of the fact that our conceptual system is discrete, while the world that it represents is often continuous.

The role of the interpreter/constructor in the case of an ambiguity is to select the appropriate meaning output in light of the sound output, using evidence such as the context in which the expression was generated, the likelihood that the meaning output was the one intended by the person or group articulating the linguistic expression, and the naturalness of the sound-meaning correspondence (a particular meaning can be possible but improbable, for example, if it presents great difficulty in linguistic processing).

The role of the interpreter/constructor in the case of vagueness is to modify the conceptual legal scheme so that it optimally covers the case at hand.

[edited for typos 1/17/2009]

Eat 'em up

2008-10-05T11:35:00.004-04:00

Not law-related but diplomacy-related. Reuters reports that France's Foreign Minister Bernard Kouchner, speaking in English, caused a bit of a row when he was understood to say to an Israeli interviewer, "I honestly don't believe that it will give any immunity to Iran ... because you will eat them before."

He later explained that he was not contemplating Israeli consumption of Iran, only an illegal aerial bombing. Apparently he had meant to say "hit", but what came out, because French phonology has a highly ranked constraint against initial [h], and lacks the lax high front unrounded vowel that English uses in the word "hit", sounded like "eat."

The ministry clarified that Kouchner "regrets the unfortunate misunderstanding this phonetic confusion has caused." The confusion was of course phonological, not phonetic.

In a possible world consistent with consistency in behavior from major propaganda agencies, we will soon witness a propaganda offensive from the MEMRI hole, saying France calls for Iran to be wiped off the map.

Status update

2008-09-23T08:07:00.003-04:00

I'm in a little over my head at law school, but I am making forward progress on my Second Amendment note. So I'll post a little bit about that.

It looks like my focus will be on one particular controversy in the DC v. Heller opinion, concerning the phrase "the right of the people to keep and bear arms". Namely, the issue of whether the fact that it's not "to keep and to bear arms" makes a meaningful difference. This is in the context of a dispute over whether the clause contemplates a single right or two.

Justice Stevens argues that the absence of "to" suggests a single right. Scalia dismisses this position as bizarre, arguing that nobody has proposed a rule that the absence of "to" in such a situation makes a difference to the meaning, and using a sentence with the noun "promise" to show that the presence or absence of "to" in such contexts makes no difference.

My paper, as I currently conceive it, takes the position that Scalia's argumentation is poor, and that the absence of "to" is in fact probative of a difference in meaning. I argue that it's not the semantics of the word "to" that makes a difference, but the syntactic structure required to accommodate the "to". And I explore the different semantics of "promise" and "right", suggesting an explanation for why the different syntactic structures end up with the same semantics in the case of "promise" but different ones in the case of "right". (I think it's the quantificational force of the modality: universal in the case of "promise", existential in the case of "right".)

[edited for typos 1/17/2009]

Update

2008-08-30T13:14:00.003-04:00

I'm back at Case Law School for one more year. It looks like it's going to be a rough semester: I'm taking three substantive classes, the health law clinic, a bar review course and a supervised research project. The latter will be a linguistic analysis of the Second Amendment. I'm also searching for a job after graduation and taking the Multistate Professional Responsibility Exam in November. In between, I'm staying involved in the National Lawyers Guild, and working with a couple of friends to form a nonprofit to educate and advocate for greater accessibility to higher education.

I'm still hoping to post here, but it will probably not be too frequently.

A paper I wish I'd written

2008-08-16T19:43:00.003-04:00

Shai Cohen brought this law review article to my attention. It's got so many things you want to see in a law article: linguistics, employment discrimination, eight-way ambiguities, upbraiding of judges for being insufficiently attentive to the nuances of language... well, it would have had upbraiding had I written it. Evidently the article's author, Jill C. Anderson, is less petty and more generous toward judges than I.

If I may brag, in my grad school days I wrote a paper in which I argued that the domain of events is, like the domain of entities is sometimes taken to be, divided along an individual/group axis as well as a singular/plural axis, with the upshot that sentences like Adin hit three boys five times is something like 13-ways ambiguous [aside to semanticists: I used a Landmanian analysis and took the theta-role functions to apply to group events, identifying individual events as the phases found in the literature on pluractionality]. I also managed to get an audience of linguists to see each of the thirteen or so distinct meanings. So: my contrived sentence is more ways ambiguous than Congress's carefully crafted one. Nyah!

Is Prop 8 language negative? Maybe not, but it's downward-entailing

2008-08-10T06:44:00.006-04:00

The media is reporting on a California judge's dismissal of a lawsuit brought by an anti-gay group to change the wording in the summary of Proposition 8, a proposal to amend the state constitution to ban gay marriage. Roger Shuy covers it in the Language Log, here.

According to news reports, the lawsuit alleged that the summary, which reads "Eliminates the Right of Same-Sex Couples to Marry," "was argumentative, misleading and prejudicial," because eliminates is "a negative, active transitive word - grammar that had rarely, if ever, been used in a state ballot title." The plaintiffs preferred the old title, "Limit on Marriage," which was changed by Attorney General Jerry Brown after the Supreme Court held in May that same-sex couples could marry.

California Superior Court Judge Timothy M. Frawley's dismissed the challenge, saying that "[p]etitioner has failed to explain why the term 'eliminates' is inherently argumentative, while the term 'limit' is not."

One can argue about the inherent argumentativity, misleadingness or prejudiciality of the choices of language. But in at least one important sense, the anti-gay crowd is right that eliminate is more negative than limit. That's because eliminate, unlike limit, is downward-entailing in its complement, which, as shown in Bill Ladusaw's brilliant dissertation, correlates with the licensing of negative polarity items.

Here's an explanation for the uninitiated. It was noticed that certain words, like ever, are licensed in negative contexts, in the sense that they can exist in negative contexts but not the corresponding affirmative contexts. For example:

Nobody ever told me there'd be days like these
*Somebody ever told me there'd be days like these
Yochanan didn't ever tell me there'd be days like these
*Yochanan ever told me there'd be days like these
(Following convention, the asterisk indicates ungrammaticality.)

This led words like ever to become known as "negative polarity items" or NPIs for short. But many other words license NPIs without being logical negators.

Yeshaayahu denied that he ever smoked pot.
*Yeshaayahu affirmed that he ever smoked pot.

Few people ever walked on the moon.
*Many people ever walked on the moon.

Shmuel supported gay marriage before he ever found out his son was gay.
*Shmuel supported gay marriage after he ever found out his son was gay.

Everyone who's ever lived in California knows it's a crazy place.
*Someone who's ever lived in California knows it's a crazy place.

Some of these licensing words seem negative and can be rephrased using negatives, or else broken down into component parts that include negatives. Deny can be recast as say that not, and few can be restated as not many. But this is not true of all NPI licensers. Before is not the same as not after (because neither covers contemporaneous events) and every doesn't mean not some. Moreover, in neither of these pairs is one member of the pair more intuitively negative than the other.

What Ladusaw showed was that the concept of downward entailingness was a better predictor of the ability to license NPIs than the concept of negativity. A context is downward-entailing if and only if in that context, replacing a set with its proper subset preserves the truth of the sentence. For example:

Yisroel didn't eat fruit -->
Yisroel didn't eat bananas

Bananas is a proper subset of fruit. These sentences exemplify the fact that the scope of negation is a downward-entailing context. If the first sentence is true, the second one is necessarily true as well. The following sentences show that this property is shared by deny, few, before and the first argument of every.

Dafna denied eating fruit -->
Dafna denied eating bananas
(on one reading of the sentence)

Few people ate fruit -->
Few people ate bananas

Ofer says a bracha before eating fruit -->
Ofer says a bracha before eating bananas

Everyone who eats fruit is gay -->
Everyone who eats bananas is gay

These entailments do not hold of the counterparts of these words.

John ate fruit --/-->
John ate bananas

Dafna affirmed eating fruit --/-->
Dafna affirmed eating bananas
(on any reading of the sentence)

Many people ate fruit --/-->
Many people ate bananas

Ofer says a bracha after eating fruit --/-->
Ofer says a bracha after eating bananas

Someone who eats fruit is gay --/-->
Someone who eats bananas is gay

Now, back to the proposition. Eliminate is a downward-entailing word, and licenses ever.

Ryvka eliminated fruit from her diet so as not to appear to be homosexual -->
Ryvka eliminated bananas from her diet so as not to appear to be homosexual

Ryvka eliminated the situations in which she ever had to feel guilty.

Limited is not downward entailing, and doesn't license ever.

Ora limited the fruit in her diet so as to appear less homosexual --/-->
Ora limited the bananas in her diet so as to appear less homosexual

*Ora limited the situations in which she ever had to feel guilty.

These judgments are somewhat subtle, but I think they're correct; or if not correct, at least onto something.

Solum on defining "strict construction" and "judicial activism"

2008-08-03T12:27:00.003-04:00

Prof. Solum's Legal Theory Lexicon here attempts to debunk, rather than define, the terms "strict construction" and "judicial activism", which he does by showing that straightforward attempts to define the terms fail for one reason or another.

He concludes that "'strict construction' and 'judicial activism' are simply not very useful as theory terms for academic constitutional lawyers." He fails, however, to explain why their use is so widespread. The obvious answer seems to be that they are useful terms of propaganda. It's much easier to rail against judicial activists and offer strict constructionist judges as an alternative if you don't have to state your objections or proposed alternatives with any clarity or specificity.

Contradictionary: "inequality" vs. "class"

2008-07-26T13:30:00.003-04:00

[Update: I've been working on a linguistic analysis of the Second Amendment and DC v. Heller, and plan to post about it. But I've gotten pretty distracted by the definition of "natural born citizen" in the Constitution and the issue of whether John McCain falls under it (the answer is no). I will post about that too. For now, here's a brief note about political discourse. - Uri]

In his book "A No-Nonsense Guide to Class, Caste and Hierarchies," Jeremy Seabrook makes an important point about the discourse of inequality and class. Seabrook points out that "inequality" is a depoliticizing term, compared with terms of class.

"Inequality" is like sentences with passive verbs. It de-agentivizes. If you point out that a society has high levels of inequality, people think it's a problem, but the term doesn't point the way to any particular solution of the problem. "Inequality" fits in nicely with a mystical view of economics in which economic facts are not ultimately attributable to human actions but instead to a "market".

In contrast, "class" makes things much clearer. It suggests that society is divided or partitioned into groups of people with different roles, realities and interests, and suggests some facts that "inequality" suppresses: that the different interests puts the groups at odds with each other and that the different roles give the groups different levels of capacity to change government, society and the economy so that they are more in line with the class's interests.

How we conceptualize inequality and class affects the kinds of solutions we seek. If the problem is inequality, unfortunately caused by the mystical operations of the market, then the solution is accepting it and trying to ameliorate it. If the problem is that an economic class or coalition of classes is waging class war against the rest and winning, then the solution is either for the other classes to fight back, or to reach some sort of class peace agreement.

Inequality talk is pervasive. Even the SEIU's videos that I've watched has leaders speaking about the problem of inequality, and if a union isn't engaging in class talk, then who is? Yet it seems to me that class is a much more accurate concept for describing how society actually works. Let's ditch the inequality talk.

Beware of the Linguistic Canons While Driving

2008-07-21T23:00:00.003-04:00

In particular, Expressio Unius. Brian Polis sent me this message:

A traffic sign saying "no right turn on red."

Does that mean you can turn left on red (because it said not to make right turns, not mentioning lefts), you can go straight or turn left on red (because those are the two excluded intersection options), you can turn right when it's not red (correct interpretation), or turn right on non-red combined with one of the first two.

The canon's application is remarkably ambiguous (and useless) in the situation, as only dumb luck or an appeal to something else will give the correct interpretation.

Don't Amend for Uri

2008-07-14T19:20:00.008-04:00

I was born in Montreal, Quebec to a Hungarian/Swedish/Canadian dad and a Czech/Israeli/Canadian mom. Before today I thought that disqualified me from ever becoming president of the U.S., barring a constitutional amendment. But some of the discussion around John McCain's eligibility for the office casts doubt on my assumption.

Like me, you see, John McCain was not a U.S. citizen at birth. This paper by Gabriel Chin - Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship - argues that McCain is ineligible, and explains why he was not born a citizen (contra, apparently, remarks that the author made to a reporter a few months ago).

McCain was born in the Panama Canal zone in 1936. Chin explains that the zone was not incorporated into the U.S. as a territory, but was subject to U.S. jurisdiction. The fact that it was not an incorporated territory meant that people born there, unlike in U.S. states or incorporated territories like Puerto Rico, were not automatically granted citizenship based on place of birth.

A law which took effect in 1934 conferred citizenship on “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States.” McCain's parents were U.S. citizens, but the Canal Zone was not outside of the jurisdiction of the United States, since the U.S. exercised sovereignty over it. Hence the 100 yards in the paper's title; had McCain's mother given birth 100 yards away in Panamanian territory, McCain would have been a citizen under this law.

Congress fixed the law in 1937 - 11 months after McCain came along - so that children born to U.S. citizens in the Canal Zone would be born citizens. It applied retroactively, conferring citizenship on McCain and many others like him.

So McCain was not born a U.S. citizen, but he is a U.S. citizen by virtue of the circumstances of his birth. Here's the issue: is he a "natural born citizen" in the meaning of Article II of the Constitution, which requires the president to be a natural born citizen?

Prof. Solum comments that legal history leaves it unclear which of the following two readings is appropriate.

(1) The at-birth reading. One interpretation of the clause is that "natural born citizens" are persons who citizenship existed at the moment of birth. If we assume Chin is correct re the minning of Section 1993, then the at-birth reading implies that McCain is not a natural born citizen.

(2) The by-birth reading. There is, however, another possible interpretation or construction of the clause: the clause might mean that "natural born citizens" are persons who are citizens by virtue of circumstances of their birth. McCain is a citizen by virtue of the fact that he was born to American citizens in the Panama Canal Zone, and hence, he is an American citizen by virtue of the circumstances of his birth.

If the second reading is correct, then my dream of becoming president is alive. It would not require a constitutional amendment. It could simply be done by getting Congress to pass a law conferring citizenship retroactively on all people born in Jewish General Hospital in Montreal on the evening of Sept. 24, 1975. Arnold Schwarzenegger could be president if congress grants citizenship to all people born in Thal, Austria on July 30, 1947. That's one reason to think the second reading is not the right one - it allows Congress to circumvent a constitutional restriction and "opt-in" any candidate it chooses to, using a highly selective conferral of citizenship based on birth.

Another reason to adopt the first reading is a little more linguistic. Natural clearly has a special meaning in this context. The term seems to cover exactly the set of U.S. citizens. U.S. citizens who were not born U.S. citizens were naturalized - they underwent a change of status from not being natural in the special sense, to being natural. So the most straightforward way to understand natural born citizen is as the set of citizens that were not naturalized, i.e. the set of citizens who were born citizens. Natural-born makes up a linguistic unit just like high-born does. It makes for a parsimonious partition in the set of U.S. citizens.

mmm... persimmony

Unfortunately for parsimony, but fortunately for me, McCain and Arnie, these terms have not been interpreted in this straightforward way. Chin cites Jill A. Pryor for the proposition that individuals who are born U.S. citizens pursuant to congressional authority, such as those born to U.S. citizen parents outside the U.S., are legally considered to be both naturalized citizens and natural-born citizens. Still, one would think that a textualist who prefers parsimony over judicial precedent for interpretation - like, say, Justice Scalia in Heller - would favor a good linguistic analysis in his interpretation of the text, no?

wikis

2008-07-06T09:52:00.004-04:00

I'm adding Glottopedia - a linguistics sort-of-wiki - to the links bar. I qualify with sort-of because Glottopedia has a couple of features that distinguish it from canonical wikis: first, not everyone can edit it - you need to have a good linguistics background; and second, it doesn't aim at total accessibility to the lay reader.

It's pretty embryonic right now, but it looks like it would be a good reference for people starting research on a topic. For example, I stumbled upon it while looking for resources on the semantics of infinitives in English, and the page on infinitive verbs looks like it will be helpful.

Surprisingly, I was unable to find a general law wiki when I searched for one.

Textualism exposited

2008-07-05T11:40:00.002-04:00

In the Legal Theory Lexicon, here.

I've blogged here about why I think "the plain meaning of the text" is incoherent from a perspective informed by knowledge of language and linguistics. Solum's explanation gets around the incoherence by explaining that the "plain meaning of the text" is usually understood not literally as the plain meaning of the text, but rather as "the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.)."

I think textualists often, but do not always, understand "the plain meaning of the text" this way or similarly, either in terms of "regular folks" or the reasonable reader. That's a topic for another post. For now I will just note the following problem: a reasonable reader or regular person would likely, in a case that is hard to decide for any reason, conclude that the meaning is not straightforward, and that something more is needed to interpret the statute, whether it's evidence of the drafter's intent or a canon of interpretation. And this undermines the purpose of textualism, which is to reduce or eliminate reliance on such sources of evidence.

Another Linguists' Amicus Brief

2008-06-28T14:14:00.002-04:00

Roger Shuy points out a brief submitted in support of neither party in the Supreme Court case of U.S. v. Hayes by linguists Georgia Green, Ray Jackendoff, Jeffrey Kaplan, Edward Gibson and Shuy. This is a distinguished group. In the brief, they consider a criminal statute containing a modifier clause in which the parties dispute which phrase is being modified.

Scalia vs. Stevens: Linguistics Smackdown

2008-06-28T13:37:00.005-04:00

Move over, Labov vs. Chomsky. The new linguistics grudge match is between Supreme Court Justices Scalia and Stevens, author and dissenter, respectively, in the D.C. v. Heller gun control case. I posted about some of the linguistic aspects of the case here and here. Both of the justices cited the linguists' brief, a number of times in Scalia's case, and both discussed several issues in the linguistics of the Second Amendment. Justice Breyer dissented separately, but addressed primarily the issue of judicial scrutiny of the legislature, rather than the linguistic issues.

Having just scanned the opinion, it seems to me that Stevens had the better of the linguistic arguments, but I'll be taking a closer look and I expect to share my thoughts on this blog. In particular, it seems to me that Stevens is closer to correct on issues of collective vs. individual interpretation and on the significance of infinitival "to". Both justices got in the spirit of the smackdown, adopting the kind of dismissive and derisive tones with respect to their adversaries' analysis that one doesn't ordinarily see in linguistics. One hopes it doesn't get out of hand, especially now that they can legally carry handguns in DC.

I think it's great that the Supreme Court discussed linguistic issues at length and referred to the linguists' brief. I'm not aware of any precedent. [The Court failed to cite linguist Bruce Bagemihl's work on gay animals in the landmark Lawrence v. Texas case.] I think it's unfortunate that the Court's opinion nevertheless involved some bad linguistics.

EDIT: Bill Poser recently reviewed at Language Log the linguists' brief's claim that "bear arms" is an idiom with military meaning, doing a good job, I think, of casting doubt on the linguists' analysis.

Regarding my absence

2008-06-22T15:36:00.002-04:00

Obviously, I have not been posting here regularly lately.

This is due to a lot of travelling, irregular access to the internet during non-work time, my decision to prioritize readings on legal theory in preparation for my note, and a challenging new summer job working as a legal intern for the SEIU.

I'm done with frequent travelling for the next couple of months, and I'm hoping to get internet access at home in the next week or so. But the job situation and the preoccupation with other matters is likely to continue.

Legal theory lexicon: possibility and necessity

2008-05-11T19:37:00.003-04:00

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

2008-04-27T14:47:00.002-04:00

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

2008-04-25T10:39:00.003-04:00

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

2008-04-24T07:51:00.001-04:00

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

link added: appellate review

2008-04-24T07:32:00.002-04:00

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

2008-04-18T05:39:00.000-04:00

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

2008-04-17T08:53:00.001-04:00

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]

Contradictionary: Legal Fiction

2008-04-17T08:38:00.000-04:00

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.

Lawsuit: Women Can't be President

2008-04-14T11:21:00.005-04:00

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.

Canadian Justice Department: Use Singular "they"

2008-04-14T10:57:00.001-04:00

A good guideline, in my opinion. Via Language Log.

In Israel, it's the liberals who try to limit the meaning of "public accommodations"

2008-04-07T18:40:00.003-04:00

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.

Solum's Legal Theory Lexicon: Intention

2008-04-06T15:50:00.001-04:00

Here.

How to tell invalid from valid arguments

2008-04-05T20:34:00.007-04:00

An example of an invalid argument:

All men are moral.
Socrates is moral.
------------------
Socrates is a man.

An example of a valid argument:

All men are moral.
Socrates is moral.
------------------
Socrates is a man.

Q.E.D.

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.

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

2008-04-05T12:09:00.001-04:00

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.

New Journal: the crit

2008-04-03T23:28:00.005-04:00

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.

Static/Dynamic Ambiguities

2008-04-02T23:02:00.003-04:00

The English -ing and -ed suffixes are rich sources of ambiguity. The former can mark nouns, adjectives and verbs:

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!

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* His real name is Brian Polis

The formalism fetish

2008-04-01T16:52:00.009-04:00

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.

Solum on Speech Act Theory and its Legal Relevance

2008-03-31T22:51:00.004-04:00

Larry Solum discusses speech act theory in his Legal Theory Blog today.

One good example that I've seen of using speech act theory to elucidate legal concepts is Peter Tiersma's article on defamation as accusation.

"If"

2008-03-30T23:41:00.000-04:00

Speaking of The Simpsons, (which I did a couple of weeks ago on this blog), let's talk about Principal Skinner's definition of if. This comes from the episode The Boy Who Knew Too Much from Season 5.

In response to a question by Homer, Skinner characterizes if as

A conjunction meaning "in the event that"
or "on condition that".

[This is about 4/5 of the way down the page.]

Now, I don't know how legal dictionaries like Black's define if, because it's the kind of word that search engines will refuse to run searches on. I searched a couple of law dictionaries I happened across in the law library, but found no entry for if. I guess it's not what you'd call a term of art.

I think Seymour Skinner is wrong. Not B. F. Skinner wrong, but wrong. My two disagreements are: in terms of syntactic categories, I don't think if is a conjunction; and semantically, I don't think "in the event that" or "on condition that" are adequate paraphrases. To the extent that ordinary dictionaries adopt a Skinnerian approach - and that extent is significant - it illustrates the shortcomings of relying on dictionaries for the meanings of words. Ya heard that, Justice Breyer?

Is "if" a conjunction?

Here's a definition of conjunction from Dictionary.com:

any member of a small class of words distinguished in many languages by their function as connectors between words, phrases, clauses, or sentences, as and, because, but, however.

If is a connector between words and a member of a closed lexical category, so if may well be a conjunction under this definition. But what did I just say about dictionary definitions?

My objection to calling it a conjunction is that it's not really conjoining constituents the way and, or or but conjoins them, as syntactic equals. I'm no expert on the syntax of conditionals, but I'm not aware of any proposal that groups if with conjuncts like and or or. The analysis that I've seen and believe treats if as syntactically a complementizer, the class that includes that, who, and maybe forms of auxiliaries like be or do, italicized in examples like the following.

I believe that judges are entirely too textualist nowadays.
I like any judge who Oliver-Wendell likes.
Is Easterbrook going to be named to the Supreme Court?
Oh my God! Did Easterbrook really write that?

As the examples show, complementizers are used to subordinate clauses, or else they appear at the left periphery of the main clause, which can be seen as subordinating the main clause to the discourse. If seems to behave similarly. The following sentence is close in meaning and structure to the second sentence in the last set of examples.

I like any judge if Oliver-Wendell likes her.

[Difference: the sentence with who has the property of exhaustivity, which the sentence with if doesn't. The exhaustive sentence tells you that in addition to liking every judge that Oliver-Wendell likes, I don't like any judge who Oliver-Wendell doesn't like].

So I would syntactically categorize if a complementizer - whose function is to subordinate one clause to another - rather than a conjunction, which joins two constituents as equals.

Semantics

But my quibble with Skinner is not just about the syntactic category of if, it's about semantics too. To be sure, he is right that the canonical use of if is in conditional contexts, which makes his definition essentially the canonical one. But notice this: a few lines after he defines the term, Skinner uses if in a sentence where it cannot be paraphrased as "in the event that" or "on condition that." He says:

Justice is not a frivolous thing, Simpson. It has little if
anything to do with a disobedient whale.

It should be clear from applying the substitution test that Skinner's definition will not work for this example:

#Justice is not a frivolous thing, Simpson.
It has little in the event that anything to
do with a disobedient whale.

#Justice is not a frivolous thing, Simpson.
It has little on condition that anything to
do with a disobedient whale.

[Per convention, I'm using crosshatches to indicate semantic infelicity. Since I'm focusing on semantics, I am omitting here the asterisk that is conventionally used to indicate syntactic incorrectness.]

It might be objected that this use of if is a non-conditional use. But in fact Skinner's sentence seems to be shorthand for the following, a clear case of a conditional:

If justice has anything to do with a disobedient whale, it has little to do with it.

So how to define the conditional?

The classic definition is in terms of truth tables. According to this approach, conditional sentences like if A, then B are false when A is true and B is false, and is otherwise true. Equivalently, if A, then B is true exactly when A is false or B is true (or both). The following truth table illustrates:

But there is a recent trend among linguists and philosophers to treat conditionals as quantificational statements, just like sentences with some or every. But instead of quantifying over things denoted by nouns, usually objects, the way these quantifiers do, conditionals are quantificational statements over worlds, events, situations, cases and the like.

Quantification, in turn, is fundamentally about relating two sets to each other. Every Supreme Court justice is wizened means that the set of Supreme Court justices is a subset of the set of people who are wizened. Similarly, if a plaintiff wishes to raise an issue on appeal, she must raise it at trial means [to oversimplify] that the set of situations in which a plaintiff raises an issue on appeal is a subset of the set of situations in which she raised the issue at trial, if we're restricting our consideration to the situations compatible with how the law operates.

Now consider again Skinner's sentence:

Justice is not a frivolous thing, Simpson. It has
little if anything to do with a disobedient whale.

This seems amenable to a quantificational analysis: the set of situations in which justice has anything to do with a disobedient whale is a subset of the set of situations in which justice has little to do with a disobedient whale. Equivalently, there are no situations in which justice has anything to do with a disobedient whale, in which justice doesn't have little to do with a disobedient whale.

Counterfactuals, or: What's a but-for?

If also appears in counterfactual conditionals, which have a different and more complicated semantics than ordinary conditionals, and will not be discussed here.

Declaration of Intentions

2008-03-29T20:03:00.003-04:00

1. It is my intention to post substantively at least once a week, and preferably 2-3 times a week. The next month and a half should be a good test of my ability to meet my expectations, since it's the time of year when a law student wraps up the semester's routines - classes, work, volunteering, extracurriculars - and focuses on exam study.

1a (an aside). My attempts to work on the blog in the past week have been hampered by my inability, on two occasions, to access Blogger, even while I could access the rest of the internet. Strangely, both of these disabilities took place in the law school building, and were resolved once I got home. Is Case Law School blocking Blogger? I don't see why, but because I'm not in a reflective mood, this is my top hypothesis.

2. It is also my intention to try to make the blog more interesting by putting graphics and videos in it. This isn't one of those dull law professor blogs, after all! It's my hope that in combination with my sense of humor, which as been described as "sooooooo weird!", and the interesting subject matter, the result will be a somewhat compelling blog.

The image above is of a page in a Passover Haggadah published in Amsterdam in 1695. I posted it because it is in the public domain, it looks nice, and Passover is coming soon, and not because it appears to have spelling and grammar errors.

Arm-baring and bear-keeping: more linguistics from the DC v. Heller oral arguments

2008-03-22T18:56:00.008-04:00

The official transcript from the DC v. Heller case, heard by the Supreme Court on Tuesday morning, is here.

Walter Dellinger, counsel for the District of Columbia, started by arguing that when Madison used the phrase "bear arms," he meant exactly "render military service" (pages 3-4). His argument is from Madison's original draft of what became the second amendment. The draft reads:

"The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Not addressed by Dellinger, or by the linguists' brief, is the role of "keep" in "keep and bear arms." If "bear arms" is just a way of saying "carry weapons" (or "carry arms," if military arms are to be distinguished from non-military weapons), then coordinating "keep" and "bear" makes sense: the amendment says that there's a right to keep the arms and to carry them.

But if "bear arms" is an idiom meaning "render military service," then an explanation of "keep" needs to be more complicated. There could be an idiom "keep and bear arms," which to my knowledge nobody has argued. Or there could be an idiom "keep arms" which is coordinated with an idiom "bear arms." But nobody seems to have claimed that either, and who says you can coordinate idioms like that? Or it could be that "keep" is not part of the idiom, but nevertheless can take "arms," part of the idiom, as an object.

General Paul Clement, supporting DC as amicus curiae, picks up on the "keep" problem:

And, obviously, the term "keep" is a word that I think is something of an embarrassment for an effort to try to imbue every term in the operative text with an exclusively military connotation because that is not one that really has an exclusive military connotation. (p. 29)

A discussion on "keep," "bear" and "arms" follows on pages 34-38.

Related to this is another linguistic debate, concerning whether the right to keep and bear arms is two separate rights - the right to keep arms and the right to bear arms - or a single right, presumably the right to both keep and bear arms. It might seem implausible for the Constitution to be defining a single right, which could be taken to mean (though it doesn't have to mean) that the federal government could ban the keeping of arms, and could ban the bearing of arms, but it could not ban doing both of those things.

But Justice Stevens has a good linguistic argument for this interpretation. He points out (p. 38) that "[i]t's one right to keep and bear, not two rights, to keep and to bear." In other words, the fact that there's no "to" in front of "bear" makes the text support a single right rather than two. It's analogous to the way the following sentences differ.

The study of law and economics is silly.
The study of law and of economics is silly.

Although both sentences may be true, they mean different things. The first is talking about a single discipline, while the latter is talking about two separate ones.

Linguists on DC v. Heller

2008-03-17T10:38:00.001-04:00

Tomorrow, the Supreme Court will hear oral arguments in DC v. Heller, a gun control case that will call on it to interpret the Constitution's controversial Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

A group of linguistics and English professors have submitted a friend of the court brief ("the linguists' brief") on behalf of petitioner, the District of Columbia, in which they analyze the likely original meaning of the amendment. DC is trying to maintain what is in effect a ban on handguns (and in fact, a requirement to register handguns in a District where the means to register them don't exist). I don't know how frequently linguists submit briefs to courts on issues of interpretation, and I don't know whether judges find them influential. I certainly think courts should welcome briefs by linguists on issues of language, to help check bad judicial assumptions and reasoning about meaning and language.

The big issue appears to be how to interpret the amendment in light of the relationship between the absolute clause and the main clause of the sentence. Mark Liberman posted about this issue on the Language Log a couple of months ago. There seems to be widespread agreement about how to analyze the sentence syntactically: the sentence divides into two, with the first part ending in "state" and the second part starting with "the right of the people." The first part of the sentence is what's known as an "absolute clause," and modifies the second part, which is the main clause.

There is one exception to the syntactic consensus, apparently not taken seriously by anybody, based on the unusual punctuation in the amendment. The Language Log post references a group of anti-gun academics who have argued, based on the first comma, that "a well armed militia" is the subject of the sentence. Everyone else seems to think that the first and third commas should be ignored. The linguists' brief suggests that in the eighteenth century, punctuation was more a matter of style than grammar, adding that people were taught to put a comma where there ought to be a pause for breath. [They also point to awkward comma insertions elsewhere in the Constitution, including the 26th Amendment (1971) and the 27th Amendment (1992, but drafted a couple of centuries earlier)].

There also appears to be general agreement on the semantic analysis of the sentence, in which the absolute clause, the first part of the sentence, states a principle that is the cause for the principle stated in the main clause. The discussion in the amicus brief suggests that absolute clauses in which the verb has the -ing suffix usually have a causal relationship when their verb is stative, and a timing relationship when their verb is active. For example, in "the ship having arrived, we all embarked," the absolute clause indicates the time on which the embarking took place, i.e. the time of the ship's arrival. I would add from my recollection of Quirk et al's writings on absolute constructions that sometimes the semantic relationship is conditional. "Standing on the chair, John can reach the ceiling" means that if John stands on the chair, he can reach the ceiling. [EDIT March 28: the more appropriate reference is to Gregory Stump's work. See Barbara H. Partee's comment.]

An exception to the semantic consensus comes from Nelson Lund, who has a forthcoming article in the George Mason University Civil Rights Law Journal. According to the linguists' brief, Lund takes the position that because the absolute clause is grammatically independent of the main clause and especially because the main clause is a command, there is no semantic relationship between the absolute and the main clause. The authors of the brief show this conclusion to be empirically wrong.

As a side note, sentences with syntactic imperative force (as opposed to declaratives with an instruction or command illocutionary force, like the Second Amendment) are at best very awkward when modified by absolute constructions:

??A well regulated militia being necessary to the security of a free state, do not infringe on the right of the people to keep and bear arms.

The awkwardness is not semantic; a different modifier clause used to convey the same meaning is fine:

Since a well regulated militia is necessary to the security of a free state, do not infringe on the right of the people to keep and bear arms.

This shows that there is no rule against a command being semantically modified by a clause stating a reason or cause, though there may be syntactic restrictions involving particular reason/cause arguments. [Having written a masters thesis on the syntax of imperatives, I feel fairly confident saying that the linguistics community does not have a good understanding of the syntax of modifiers in imperative sentences; at least, it did not have a good understanding of it nine years ago when I wrote the thesis, and no facts suggesting that the understanding has improved have come to my attention since then.]

Leaving aside Lund and the anti-gun academics, the main point of disagreement seems not to be a question of linguistics but of rules for interpretation: how should the Court interpret the law in light of the agreed-upon syntax and semantics? Is it, as the DC Circuit Court of Appeals found, a general individual right to own guns, in spite of the narrower purpose articulated in the absolute clause? Or is it not an individual right but one restricted to those belonging to well-regulated militias, as most other federal circuits have held?

Besides discussing constitutional punctuation and the semantics of the absolute construction, the linguists' brief takes the following positions:

- The "well regulated" modifier was consciously used to distinguish between militias, and in particular between the more ad hoc kind of militia, consisting of ordinary citizens, referenced elsewhere in the Constitution, and the well regulated militia, which was a force trained and disciplined by the state. This addresses the DC Circuit Court of Appeals' critical holding that the Second Amendment applied to all citizens who were subject to being organized by the states into militias, as opposed to actually being in a militia. If the framers had meant the right to extend to all individuals subject to being organized into militias, it would make little sense for them to use the restrictive phrase "well organized."

- "Bear arms" is, and was at the time, an idiom meaning to fight as a soldier. But the idiomatic meaning can be suspended in favor of a more general "carry weapons" meaning if additional language is added. The linguists' brief cites the following language as an example:

“bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game”

They add, citing eighteenth century authority, that "arms" generally meant objects used in war, such as firearms and swords, while "weapons" excluded firearms and included objects used for offensive purposes on other occasions.

The linguists' brief's overall conclusion: the DC Circuit Court of Appeals erred by failing to give the amendment its most natural interpretation, which is that people have the right to serve in a well-regulated militia and to keep arms for that purpose. To reach its conclusion that there is a general right to own weapons, the appeals court ignored the words "well-regulated" and wrongly interpreted "bear arms" as "carry weapons," when in fact it is an idiom meaning "engage in hostilities." Accordingly, the Supreme Court should reverse the appeals court.

"Avoision"

2008-03-17T09:43:00.002-04:00

I had always assumed that "avoision" was a cute Simpsons coinage, and meant the same as "evasion." Turns out it has been in use since 1982, and refers to conduct that's somewhere in between, or encompassing both, illegal evasion and legal avoidance.

On Vacation

2008-03-12T16:20:00.000-04:00

Until March 17.

Y Kant Jonni Rite?

2008-03-03T09:54:00.002-05:00

Declining childhood reading habits? Interference from text messaging argot?

No, the reason we don't write clearly anymore is the feminist language rapists, according to language nudnik David Gelernter.

Geoff Pullum debunks some of Gelernter's claims about the history of English usage on the Language Log.

Here's an irony that Pullum missed: In the third paragraph's opening sentence, while lamenting the loss of our ability to write clearly, Gelernter makes an error of style and writes a garden path sentence - one that the reader has to re-parse midway through because of poor drafting. The sentence reads:

Our ability to write and read good, clear English connects us to one another and to our common past.

As you process the sentence, you stop at "good" and wonder: is the author making fun by using "good" as an adverb, the way less educated speakers of English often do? Then you realize that no, he in fact just wrote the sentence badly.

What is it about illinguistic people that compels them to make perfect asses of themselves in public by combining language ignorance with a militant posture? And why does the phenomenon so often seem to involve political reactionaries trying to draw a connection between some perceived decline in language and some perceived decline in social values?

EDIT: a billion monkeys has a good review of Gelernter's rant.

Mathematical nitpickiness

2008-03-01T12:11:00.002-05:00

Part of the usefulness of this blog is that it provides me with an outlet to make nitpicky complaints about the linguistic habits of people around me. It may or may not be useful to readers, but it's cathartic for me.

This time my complaints concern statements about math, not language, that I disagree with. I'll leave the subject matter out to protect the identity of the professor, who is generally brilliant and wonderful. But she recently made two math errors about two weeks apart that I feel compelled to correct.

In one case, she told us the range of grades and the average grade for an assignment, and informed us that the distribution was normal. Then she suggested that based on that information and knowing our individual grade, we can figure out how well we did. But we can't, except those of us whose grades are at one of the given data points, because we weren't given any information to help us figure out how flat the curve is. Knowing that I got an 14 (say) out of 20, that the average was 16 and the range between 12 and 20 doesn't tell me how I did compared to the rest of the class, except that I did below average and above the lowest score. Since in law school, all that matters is your performance compared to your peers, the amount of information given was not too helpful for most students.

In the second case, we were talking about how money in hand now is worth more than the same amount of money to be received in the future, because of inflation. The illustration used as an example the value of $1000 one year from now, assuming 5% inflation. The professor gave $950 as the current value of the money. But this is wrong, since $950 + 5% of $950 is less than $1000.

---

Okay - now that that's off my chest, I'll try to post something more language-related in the near future. Maybe regarding the semantics of conditionals like "if", or maybe regarding a note topic that I'm considering - a textual analysis of the controversial United Nations Security Council Resolution 242.

What's a law?

2008-02-28T07:12:00.000-05:00

In terms of speech acts, what kind of thing is a law? I'll suggest that it is a declaration (of a state's official position on some matter), an instruction (to various parts of the state on how to conduct themselves in specified situations), an assertion of fact, or some combination of these.

An example of a law that is just a declaration is found in Chapter 2, Section 28 of the Massachusetts General Laws: "The corn muffin shall be the official muffin of the commonwealth."

This is simply a declaration of a state's official position. By itself, it asserts no fact independent of the facts that it creates, and it carries no legal consequences. In conjunction with laws that contain instructions to the state, it could have consequences. For example, if the Commonwealth passed a law that required a representation of the official muffin on the state flag, then our law would result in a requirement that a corn muffin, and no other kind of muffin, be depicted. This requirement is created by the instruction to the state, combined with the fact created by the declaration in Chapter 2 Section 28, namely the fact that the corn muffin is the official muffin of the Commonwealth.

An example of a law that is an instruction without any explicit declaration or assertion of fact is the first amendment to the U.S. Constitution, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This is an instruction to Congress to not make certain laws; in combination with other laws that structure the relationship between the branches of the government, it is also an instruction to the courts to invalidate such laws if Congress creates them.

Although there is no explicit declaration, there is an implied declaration that it is the official policy of the United States to disapprove of the proscribed Congressional acts. In general, a proscription or punishment of an activity implies an official declaration of disapproval. This can be seen from the oddness of placing next to such a proscription or punishment an explicit declaration of support for the proscribed or punished activity. Such as:

It shall be the policy of the United States to promote witchcraft. Practitioners of witchcraft shall be put to death.

If this law makes no sense, it is because the implied declaration of the second sentence contradicts the explicit declaration in the first one. Many laws containing instructions will contain implied declarations within them, but not all. For example, a law setting fees for government services are not likely to contain such implications, unless the amount of the fee is meaningful. A law setting the fee for a fishing license at $25 is not likely to be an expression of one policy or another regarding fishing. But if the cost of the license was $5000, it might be seen as implying an anti-fishing declaration.

An example of an explicit factual assertion is the Second Amendment, where an assertion is adjoined to an instruction.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The instruction appears to be aimed at Congress to not pass laws that infringe on the right to keep and bear arms, to the Executive to not take action that infringes on the right, and to the Judiciary to take actions such as invalidating Congressional enactments that infringe on the right, enjoining Executive actions that interfere with the right, and compensating citizens whose rights have been interfered with. There is also a factual assertion that a well regulated militia is necessary to the security of a free state. There may be a presupposed fact that there exists a right to keep and bear arms, if one takes a naturalistic view of rights. On the view that the state creates rights, it may be a veiled declaration of a right rather than an assertion of fact.

Could a law be a freestanding factual assertion ? Could there be a law, for example, that just asserts that the weakness of labor unions (at the time of the passing of the law) is economically harmful?

I don't know of the existence of any such laws, and people would find them odd. But there would be some sense to it. If courts are bound by the laws that the legislature passes, factual-assertion-type laws would have the effect of precluding courts, in their reasoning, from making use of a proposition that contradicts a factual assertion in a law. The exploration of this relationship between the courts and the legislature is an issue for another time.

One of these days

2008-02-25T07:40:00.001-05:00

Occasionally I'm struck by an ambiguity that's so tasty, it can only be described as geschmak. A classic example is the title of a piece of spam e-mail that I once received: "Attract men with bigger breasts."

Another one comes from Neil Young's song One of These Days, in which the singer describes a letter he's going to write. The chorus goes:

One of these days,
I'm gonna sit down and write a long letter
To all the good friends I've known
One of these days, one of these days, one of these days,
And it won't be long, it won't be long.

The conjunct "and it won't be long" creates an ambiguity that can serve as a cautionary example for drafters of legal language. The more obvious interpretation is to understand it as pleonastic*, and the conjunct as a whole being shorthand for "and it won't be long before I do what I just described." But it can also be a pronoun which refers back to the letter, in which case the conjunct is saying that the letter won't be long.

The words are disambiguated, of course, by the fact that that the letter is earlier characterized as "a long letter." To avoid contradiction, the conjunct would have to be interpreted as referring to the length of time before the singer writes the letter. It's interesting that the presence of the contradiction doesn't make the sentence unambiguous to begin with, but rather makes it ambiguous between a sensible and a contradictory reading. Reminds me of Bertrand Russell's famous touchy yacht owner example.

The lesson for drafters: look out for ambiguities at a distance! Pronouns inside coordinated structures (those with and, or, and similar words) are dangerous, because pronouns are typically flexible enough that they can pick among antecedents, and coordination is flexible enough to pick among different-sized coordinated phrases. It and there, which can be either pronominal or pleonastic, add yet more flexibility. And when you're drafting, you want rigid rather than flexible words.

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* The word "pleonastic" should not be spoonerized.

Stealing? Sharing? Stearing?

2008-02-23T09:30:00.007-05:00

An LA Times article discusses the debate over whether it is stealing or sharing to replicate music, movies and other non-scarce goods for the benefit of those who don't pay for it.

The legal owners of copyright protections have been campaigning to have public opinion and the law recognize it as stealing, on par with lifting a CD from the shelf. As the article notes, this has met with some skepticism from the public, which apparently recognizes that replication has some aspects of both stealing and of sharing. As with stealing, the person receiving the benefit of the transaction confers no benefit on the owner. But unlike stealing, and like sharing, the person receiving the benefit does not deprive the owner of the right to enjoy the property.

Geoff Pullum on the Language Log compares it to "giving" someone a kiss. Of course, most kisses are not exchanged commercially the way music and movies are, so Pullum then compares it to a service, like giving someone a massage. If you give someone a massage and they don't pay for it, we tend to see that as stealing of a service. But that's still not a good analogy, because giving a massage requires effort on the part of the massager and takes up her time, creating opportunity costs. It therefore involves deprivation to the provider of the service, which makes it more like lifting a CD from the shelf than copying a song.

Is it a semantic debate? In a way it is. Both sides in the debate want the public to broaden its understanding of a concept to include the act of intellectual property replication, but disagree whether that concept should be "sharing" or "stealing". But what this is really about, of course, is whether, like stealing, replication is morally wrong and the law should allow the legal owner to bring a private action against the thief, or whether like sharing, it is benign and gives the owner no right to recovery.

The law, of course, does not have to declare that it is stealing or sharing. It can create a category for it in between the two, recognizing that it has elements of each, and ordering the state to treat it somewhere between its treatment of stealing and of sharing.

"The Plain Meaning of the Text"

2008-02-20T20:46:00.005-05:00

I'd like to inaugurate the substantive portion of this blog by explaining why the commonly used phrase "the plain meaning of the text" is incoherent from a linguistic point of view. Since doctrines that invoke the plain meaning of the text dominate judicial approaches to the interpretation of statutes, contracts, constitutions and other texts, these approaches largely rest on an incoherent foundation. And since discussing approaches to interpretation is much of what judges and legal scholars do, I'd like to suggest that a whole lot of legal thinking is based on an incoherent conceptualization of language, law and text.

Here's the problem: text doesn't have meaning, plain or otherwise. There's no function that takes a string of text as input and returns a meaning as output. Rather, text and meaning are two separate outputs of the syntactic system. They are related, and one of the main activities that preoccupy linguists is trying to figure out the nature of the syntactic computation by studying the restrictions on the relationship between text and meaning. They are separate outputs, and they are fed into different interpretive components of the language system - text into what Chomsky calls the articulatory-perceptual component, and meaning into what he calls the conceptual-intentional component. Properly speaking, the text that we hear, read, or in the case of sign language, see, is the modality-specific translation or interpretation of the textual output of the syntactic system, by the articulatory system in the case of speech and what I suppose could be called the graphical system and the gestural system in the cases of writing and signing, respectively.

Let me try to clarify with a concrete example. Consider the ambiguous sentence I shot an elephant in my pajamas. What makes it ambiguous is that a single text corresponds to multiple meanings. Linguistic theory explains that two distinct syntactic processes, which lead to different meaning outputs, happen to converge on the same textual output (which is then processed through the modality-specific system to be read, heard or seen). So I shot an elephant in my pajamas, as a text, doesn't have a meaning, but rather two meanings, to which the text is indirectly related and mediated by the syntax.

To go a little further, figuring out the meaning of a sentence requires knowing its structure - the way in which the words in the sentence are related to each other. That means that the meaning output of the sentences must include, in addition to the words themselves, information about the structural relationships between the words. In the above sentence, in the meaning in which I was wearing the pajamas, the output contains the information that shot an elephant forms a grouping, or constituent, to the exclusion of in my pajamas. In the meaning in which the elephant was wearing my pajamas, the output includes the information that an elephant in my pajamas is a constituent to the exclusion of shot. This information is not found in the text, which makes no structure apparent, but instead linearizes the words. If interpretation of the text simply involves considering the text and no other evidence, as "plain meaning of the text" suggests, it cannot include the structure which is necessary to determine meaning.

Rather than text corresponding to a meaning, it could be said to correspond to a set of meanings - the meanings that can be generated by the syntactic system consistently with the text. That is,given a text, if you consider every syntactic procedure that generates the text as one output, and put together each meaning generated by those procedures, you'll get a set of meanings that corresponds to the text. Given nothing except the text, the interpreter or constructor has a set of meanings, typically consisting of more than one meaning to select among, and no evidence to assist her with her selection. Finding the "plain meaning of the text," then, first requires finding the set of meanings corresponding the text, which requires considering all of the syntactic processes that can produce the text, then identifying their meaning outputs, and then coming up with a strategy for deciding among them. Hardly plain, and necessarily not restricted to considering just the text.

Ouch

2008-02-20T11:42:00.001-05:00

The pinkness of the background on this blog hurts my eyes.

I'll do my best to change it sometime soon. But right now I've got stuff to do.

EDIT: There we go. A slightly less irritating blue, in the same pleasant design.

So this linguist walks into a law school classroom...

2008-02-20T10:53:00.000-05:00

Hopefully this is the beginning of a meaningful engagement on issues relating to law and language, and not the beginning of a promising-sounding joke.

About me: I'm a 2L (second-year law student) at Case Western Reserve University School of Law. I have two masters degrees in linguistics, one from the University of British Columbia, and one from UMass Amherst. This is a mixed situation. On one hand, a master's degree ain't that valuable to begin with, and there are diminishing returns - in fact, vanishingly small returns - on additional MAs after the first one. On the other hand, even the most renowned and brilliant linguists don't have two MAs in linguistics, which makes extremely qualified, by some sort of reasoning.

My UBC masters thesis was on phrase structure and verb movement in Hebrew and English imperative constructions. My generals papers at UMass were about (1) generic possessives (like women's college) and (2) cardinal adverbials (like three times). I also worked on some issues in children's acquisition of universal quantification and maximality, which was the result of some work I did on the DELV, a dialect-neutral diagnostic of language disorders.

My main interests in law are employment and labor law, although after taking a class in labor law last semester I view the prevailing regime in the U.S. as utterly perverse, as the result of good legislation being wrecked by ideologically extreme judges and National Labor Relations Board members. I'm also interested in any kind of law that can be used to advance the public interest by undermining the class systems. I "externed" at the Employment Unit of Greater Boston Legal Services last summer, am "externing" at the Legal Aid Society of Cleveland currently, and will "extern" for the SEIU this coming summer. (explanation: extern: intern as venti: large).

I have this other blog, but I'm starting this blog specifically for language and law issues, because I think I may have more interesting things about law and language specifically, rather than the eclectic collection of things I happen to find interesting. Hopefully this will serve in part as a place to brainstorm and develop ideas for my note, which I will be writing next academic year. And since I'm not aware of any other blogs of this type, maybe it will be a place to engage with others who are interested in this issue.