Another Linguists' Amicus Brief

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

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

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

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

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

Interpretation vs. Construction

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

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

Loose Canon: Expressio Unius

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

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

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

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

DO NOT REMOVE CHAIRS FROM THE LAB

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

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

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

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

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

I was gonna get a fishing/hunting license in Montana

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