Wednesday, July 21, 2010

Here's a desperately needed canon of construction

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.

Wednesday, February 17, 2010

A paradox in bankruptcy law

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.

Tuesday, January 12, 2010

The SCAT hypothesis of meaning and the textualist fallacy

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.

Monday, December 21, 2009

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

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.

Sunday, November 22, 2009

The linguistics of God

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 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.