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  • Sandeep Prasanna

    Sandeep Prasanna 11:25 am on March 30, 2012 Permalink | Reply
    Tags: , , english only, foreign language, german american, law, mexican american, nebraska, , tucson   

    “Inimical to our own safety”: regulating heritage languages 

    With the country waiting for the Supreme Court to release its decision on the constitutionality of the Patient Protection and Affordable Care Act, I thought it would be fun to revisit an older Supreme Court decision — one where the Court directly considered the benefits and disadvantages of foreign language learning.

    I was inspired to check out this case, Meyer v. Nebraska, 262 U.S. 390 (1923), by a section in Lane Greene’s fantastic book You Are What You Speak: Grammar Grouches, Language Laws, and the Politics of Identity, where Greene described it in the context of fervent “English-only” activism in the US.

    The suit in Meyer v. Nebraska was brought against a teacher who had been caught teaching German reading skills to a 10-year-old child in a parochial school in Nebraska. This was back when German was still commonly spoken in the Midwest by recent immigrants. The relevant statute read in part as follows:

    Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language than the English language.

    Section 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade …

    [The statute discusses penalties.]

    Section 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.

    Prior to the U.S. Supreme Court taking up the case, the Nebraska Supreme Court affirmed the validity of the statute. They wrote:

    The Legislature had seen the baneful effects of permitting foreigners … to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. …

    It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. …

    The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state.

    The U.S. Supreme Court reversed the decision of the Nebraska Supreme Court, holding that the statute infringed on the rights guaranteed by Section 1 of the Fourteenth Amendment (“… [n]o state shall deprive any person of life, liberty or property without due process of law…”). Specifically, the Court held that the statute unfairly infringed on the teacher’s right to teach, as part of his occupation, as well as the right of parents to engage that teacher in instructing their children.

    Moreover, they noted that the sole purpose of the statute was to inhibit the teaching of modern languages alone, even though, they note, “Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Later, they write that foreign language learning is “not injurious to the health, morals or understanding of the ordinary child.”

    But, lest you think the Supreme Court was being too progressive, they still warn:

    The desire of the Legislature to foster a homogeneous people … is easy to appreciate. Unfortunate experiences during the late war [World War I] and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration.

    Still, the means used were too intrusive, they concluded.

    I’m in Tucson, Arizona, right now, working on a handful of legal projects with U.S.-Mexico border human rights organizations. The small-town reasoning evident in the Nebraska Supreme Court’s decision — foreign languages are bad, and they are dangerous for our youth and for American ideals — are alive and well today, not least in Tucson, where many people regard the exercise of Mexican-American pride as an assault on the US itself.

    The Tucson Unified School District board recently decided to remove its Mexican-American studies courses in response to a finding by the Arizona Schools Chief that the program promoted racial disharmony. Regulating identity in our schools and fostering homogeneity with dire warnings of a multicultural dystopia don’t seem to have gone out of vogue yet, 89 years after Meyer‘s implicit remonstrances.

    But, as Lane Greene writes, there’s nothing to fear from the teaching of heritage languages — because they’ll probably be lost within two generations, anyway, through the inexorable march of the American monoglot machine. As an Indian-American, I can offer anecdotal support — for better or worse, few among my cohort speak our heritage languages fluently, and those who do still speak English fluently. Of course, anecdotes aren’t data, so here are hard numbers: Hispanics in America today are learning English more rapidly than German Americans at the turn of the century — 95% of surveyed second-generation Hispanic children located in the heavily Hispanic areas of San Diego and South Florida spoke English fluently, and 40% spoke no Spanish. Hardly the bilingual disharmony English-only activists warn of.

    Greene writes:

    It is, to put it simply, nearly impossible to raise a child in the United States without the child learning English; it would require isolation from the outside world bordering on child abuse. Children born in America, and even those arriving at a young age, inevitably pick up English.

    This fact, of course, does little to quiet the English-only activists.

     
  • Sandeep Prasanna

    Sandeep Prasanna 12:38 pm on March 9, 2012 Permalink | Reply
    Tags: , , , law, law school, may, , parsing, shall, , united states   

    Parsing the Constitution 

    Some of the most delightful moments for an ex-linguistics student in law school are when legal analysis clearly intersects with linguistic analysis. That connection was part of what drove me to come to law school. This semester, for me, that close relationship has appeared most often in Contracts and Constitutional Law, two fields which depend heavily on the parsing of text to divine original and apparent meaning.

    Seth Barrett Tillman, currently a lecturer in the Department of Law at the National University of Ireland, Maynooth (Ollscoil na hÉireann, Má Nuad) and previously an attorney and law professor in the United States, has written extensively on the interpretation of clauses in the U.S. Constitution.

    In a piece that appeared in the American Journal of Legal History in 2010, Nora and Seth Tillman put forth the argument that our modern understanding of the words shallmay, and will in the Constitution are not consistent with their usage in the late 18th century, when it was written.

    [W]here a word once had multiple meanings, but only one variant is now remembered and understood, we may be seriously mistaken when we ascribe near certainty to our understanding of how a constitutional term was used.

    As we understand it, prevailing eighteenth century American usage, distinguished shall (indicating futurity) from will (indicating the emphatic tense), as it is still spoken in Anglo-English. Whereas today, we Americans conjugate will as “I will, you will, he will,” and shall as “I shall, you shall, he shall,” in the eighteenth century, the dominant American usage (following southern English standards) was will (Iwill, you shall, he shall) and shall (I shall, you will, he will).

    [W]e suggest that standards … may have been of import to [the drafters], and, for that reason, knowledge of those (long moribund) standards may be a useful tool with regard to determining original public meaning …

    It’s a short, fascinating piece. Read it here: Nora Tillman & Seth Barrett Tillman, A Fragment on Shall and May50 AM. J. LEGAL HIST. 453 (2010). (Opens PDF.)

    Tillman also debated Northwestern Law Professor Steven G. Calabresi in 2008 in the University of Pennsylvania Law Review PENNumbra. Tillman argues that the Constitution did not require Barack Obama to relinquish his Senate seat upon inauguration as President.

    He bases this argument over the precise definition of the word “officer” and whether the President falls into that category, drawing upon Article II, § 4 (the Impeachment Clause), Article II, § 3 (the Commissions Clause) and Article I, § 9, clause 8 (the Foreign Emoluments Clause) to make his point.

    Calabresi rebuts, noting that the rub for Tillman’s argument rests in Article I, § 6, clause 2.

    A fun read. Find it here: Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. PA. L. REV. PENNumbra 134 (2008). (Opens PDF.)

     
  • John Stokes

    John Stokes 11:26 am on February 7, 2012 Permalink | Reply
    Tags: 9th circuit, California, , , gay marriage, gay rights, law, prop 8, proposition 8   

    Prop 8: The importance of being ‘married’ 

    The 9th Circuit ruled today that California’s Proposition 8 was unconstitutional, saying that it violated the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution. For a summary of the ruling and a link to the opinion itself, check out SCOTUSblog.

    Most of us probably remember that Prop 8 was the anti-gay-marriage initiative that California adopted a couple years ago. More specifically, though, Prop 8 was a public initiative that amended the California Constitution to prevent same-sex couples from obtaining the official designation of ‘married.’ It left in tact all of the rights afforded to gay and lesbian couples — the same rights that married opposite-sex couples are entitled to — but it forbade them officially to call these relationships ‘marriage.’

    One might argue–as indeed the proponents of Prop 8 did–that if none of the substantive rights of gay couples were taken away, the lack of official designation shouldn’t be a constitutional problem. Having the rights, after all, is more important than what they are called. But the 9th Circuit disagreed:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.

    -  Perry v. Brown. 9th Circuit 10-16696. (from Judge Reinhardt, writing for the panel that decided the case)

    In other words, what you call something does matter. And this is a powerful idea. The 9th Circuit says it doesn’t care if you leave the substantive rights in tact; it doesn’t matter if you maintain all the other entitlements that come along with the word ‘marriage.’ No– certain words have such special significance, such special power, that to deny access to their use alone is enough to violate a right.

    So indeed – the 9th Circuit’s ruling came down to the fundamental importance of being, specifically and officially, ‘married.’

     
  • The Diacritics

    The Diacritics 9:30 am on January 21, 2012 Permalink | Reply
    Tags: affirmation, bible, britain, christianity, court, , i swear to tell the truth, , islam, justice, , law, , religion, sharia, swear   

    I swear (affirm?) that I will tell the truth 

    I was watching a Kannada soap opera last night (because I have apparently become an elderly Indian woman as of late) and a scene in a courtroom caught my attention. One of the characters was being questioned, and before she gave her testimony she was asked to declare her intention to speak the truth.

    ಸತ್ಯವನ್ನು ಹೇಳುತ್ತೇನೆ , ಸತ್ಯವನಲ್ಲದೆ ಬೇರೆ ಏನು ಹೇಳುವುದಿಲ್ಲ , ನಾ ಹೇಳುವುದೆಲ್ಲ ಸತ್ಯ |

    satyavannu hēḷuttēne, satyavanallade bērēnu hēḷuvudilla, nānu hēḷuvudella satya

    I will speak the truth; I will not speak anything that isn’t true; everything I say is the truth.

    That segment caught my attention for a couple of reasons.

    First, that the declaration was different from our familiar U.S. oath, “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.”

    But of course it wouldn’t be the same. While an objectively large number of people in India use English as a second or third language (some 125 millionaccording to the latest census, nearly half the population of the United States), that still only comes out to about 10 or 11 percent of the country’s population.

    It would be fundamentally unjust for court proceedings to be carried out in a language with which the parties were unfamiliar — even though that probably happens regularly, since there are only (!) 22 scheduled languages of India and hundreds more unrecognized dialects and minority languages.

    So, okay, the witness’s declaration was taken in Kannada. The action takes place in the state of Karnataka, where the two official languages are Kannada and English, so a witness could plausibly use either language. That makes sense. (Plus, it was a Kannada soap.)

    Another thing that caught my attention was that there was no religious sentiment expressed in the declaration. India is a highly religious country, with upwards of three-fourths of the country declaring that religion is important to them. In the U.S., that rate is a little lower, at 65%, but the most famous form of our witness declaration here does explicitly invoke God — “… so help me God,” a line that is usually delivered, scripted, by court bailiffs, along with a Bible.

    In American law, an oath specifically references God. The OED agrees: an oath is specifically a type of declaration that “invokes God, a god, or other object of reverence.” Those who don’t want to make an oath instead provide an “affirmation,” which starts with “I affirm…” instead of “I swear…” and omits the reference to God. Affirming is referenced four times in the U.S. Constitution as an alternative to swearing, and Britain has allowed affirmations instead of swearing since 1695.

    Regardless of whether you swear or affirm, if you lie, you can be charged with perjury, a serious crime.

    Other declarations abroad
    In Britain, oaths are given slightly differently from the American version:

    I swear by [Almighty God/Name of God/name of the holy scripture] that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

    Affirmations in Britain require several more hedges than an oath, perhaps because of a cultural suspicion against people who affirm rather than swear: “I swear to tell the truth…” is such a well-known phrase that any deviance from that — regardless of how legal it is — can be regarded with suspicion.

    In Britain, one doesn’t simply “affirm” — one solemnly and sincerely and truly declares and affirms:

    I do solemnly and sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

    In the U.S., one can simply affirm. Atheist and former Governor of California Culbert Olson, in office from 1939 to 1943, famously said to California Supreme Court Justice Waste, “God [can't] help me at all, and there isn’t any such person.” He chose to say “I will affirm,” rather than “I swear” during his oath of office.

    According to one of my friends in France (hi, Benoît!), the common declaration given by witnesses in France is:

    Je jure de parler sans haine et sans crainte, de dire toute la vérité, rien que la vérité.

    I swear to speak without anger and without fear, to say the entire truth, nothing but the truth.

    My friend writes, “Because France is a non-religious country, there isn’t any trace of God in any institutions.” I’m sure truth is more nuanced than that, but the French people are certainly less religious than the United States. But the word – jurer – used in the oath is similar to “swear.” Jurer usually carries the same valence as the English “swear” (in that it has religious undertones) and it also has the same secondary meaning of “to curse.” But jurer can also translate to “certify” or “pledge,” words that carry no religious undertones in English.

    Another one of my friends, a walking encyclopedia of Islam (hi, Ahmad!), gave me an overview of Muslim declarations of truthfulness. In many majority-Muslim countries, cases that are tried under Shari’ah law (today, usually family law disputes) require an oath to be given by witnesses. However, unlike Western civil courts, the oath is traditionally given after testimony is given. Once the judge collects all the testimony, he asks the parties to swear on the Qur’an or by God that what they have said is true, or else bringing upon them divine wrath. (Incidentally, this traditional oath appeared in the recent Golden Globe-winning Iranian film A Separation, which I highly recommend.)

    Back home

    The U.S. government is explicitly areligious, but a profession of faith is built directly into the common understanding of court procedure. Of course, there’s no law requiring nonbelievers to swear. But it’s undeniably unfair when free deviance from a set religious phrase, scripted and delivered by a court’s bailiff, could color a jury or judge’s perception of a witness. We shouldn’t be suspicious of someone who affirms more than someone who swears, but many of us are.

    Eliminating “I swear…” probably won’t help, but maybe raising the profile of “I affirm…” as an option for nonbelievers (and even believers who object to swearing in a civil setting) will help make the process fairer.

     
  • Sandeep Prasanna

    Sandeep Prasanna 9:34 am on January 17, 2012 Permalink | Reply
    Tags: , law, precision   

    The English literature academy’s glorification of “elegant variation” in which one attempts to vary one’s nouns and adjectives when referring repeatedly to the same thing is anathema to the law.

    Kuney and Lloyd. Contracts: Transactions and Litigation. 2011: 40.
     
  • The Diacritics

    The Diacritics 9:14 am on November 21, 2011 Permalink | Reply
    Tags: apple, , law, legalese, license agreement, south park,   

    The importance of legalese 

    (posted by John)

    One thing most people like even less than lawyers is the legalese that they have made so ubiquitous in our lives. By legalese, I mean the legal speak that we see in things like insurance policies and licensing agreements. It’s something we deal with all the time—we see it in our cell phone bills, our apartment leases, every time we update iTunes.  Of course, if you’re like most people (see the pie chart), you’ve never actually read (or agreed to?) the terms of your agreement with Apple. We don’t read these enormously long, technical, and boring documents at least in part because even if we knew what they said, we couldn’t do anything about it. We have no individual power to bargain with Apple, so we can take their terms or leave them. It’s not worth Apple’s time to bargain with any one customer, because it would be more expensive to deploy legal teams to ‘dicker’ over terms with individual customers than it would be to simply let go those customers that don’t like the terms. 

    These types of agreements are called ‘contracts of adhesion.’ They were considered a brilliant development when they came about in the business world because they helped drastically limit the legal costs of firms. Companies that developed standardized forms to deal with their customers en masse gained a huge advantage over those that had to create unique documents for each transaction. Today they’re a hallmark of the corporate world, but most of us just find them impersonal and generally annoying . . . or at least I do.

    That doesn’t answer the question, though, of whether we should we be reading the terms of agreement. For things like Facebook or iTunes, I tend to go on the assumption that someone out there has read the terms and made sure they don’t contain anything too bad. This, my contracts professor assures me, is a stupid thing to assume, though even after several months in his class, I personally am no closer to understanding the terms I’m agreeing to. But I guess my professor must be on to something—as South Park, in its wisdom, shows us, you should be careful about signing on the dotted line (or clicking I Agree), else you might end up agreeing to participate in human experiments run by Apple. (This clip basically sums up the post, if you’re short on time…)

    But even for all of its annoyingness, legalese is important. One of the major topics in contract law deals with the question of how we know when a binding agreement has actually been made. If, for example, you said to your friend, “I’d give you a million bucks for the rest of that hot dog,” it seems pretty clear you’re not making a serious agreement. But it’s not always that obvious. We read a case earlier this year in which two guys at a bar (one probably drunk, the other probably pretending to be) wrote an agreement on a napkin for the sale of a farm. When the drunk guy eventually sobered up, he tried to say one of two things: either, (1), the whole discussion had been in jest, that they had been laughing and joking about him selling the farm, because the other guy knew he’d never actually want to sell it; or, (2), he was drunk and not of sound mind at the time, so there was no enforceable agreement. But the courts enforced the napkin contract, and the guy had to sell his property.

    The question of when we’re making a serious agreement, of when we wish to bind ourselves, is not an easy one. One of the most effective ways we have dealt with it is by developing the lexicon of legalese that, today, is often embodied by what we see in those annoying standardized forms. This legalese helps us in a couple of ways in particular.  First, when we use it, it shows we actually intend to be bound. When you know certain words have the power to bind you, then you won’t use them unless you’re serious. Second, when we notice a person we’re talking to is using legalese, it puts us on notice that that person is being serious. Even if you know nothing about the law of contracts, when someone mentions getting a lawyer involved, writing down “terms,” or actually signing a piece of paper, you quickly realize they aren’t kidding around and that you shouldn’t keep going unless you aren’t either.

    That’s why the courts ended up enforcing the napkin contract—even though it was written on a napkin, it was still written, and it contained all of the hallmarks of a serious agreement. The guy should have recognized that fact and known not to sign the napkin unless he was serious too.[1] It’s also how Kyle ended up in trouble with Apple after not reading his license agreement (see the South Park link above). That’s the importance of legalese; when we use it, we know it has special power to bind us to our word. To put it differently, once your friend writes your offer for his hotdog on the wrapper, you shouldn’t sign it unless that hotdog is looking, literally, like a million bucks.


    [1] The court also said that he wouldn’t have been able to draw up such a detailed contract with all of the necessary bits and pieces that would normally make it binding if he had been drunk, so the contract couldn’t be eliminated on those grounds either…

     
  • The Diacritics

    The Diacritics 2:37 am on October 3, 2011 Permalink | Reply
    Tags: , , crime, , , , law, , , oj simpson, punishment, ,   

    #sorryimnotsorry: good apologies gone bad (Part 1/2) 

    (Posted by Sandeep)

    A recent meme that’s been making the rounds on the Internet is the pithy, defiant Twitter hashtag #sorryimnotsorry: “Sorry [that] I’m not sorry [for my actions, clothing, attitude, words, etc.].”

    It’s the perfect little encapsulation of a pervasive attitude in our generation. Back off; it’s your problem that you have a problem with my conduct. (There’s even a book out called Sorry I’m Not Sorry.)

    Saying “sorry” is a funny thing. As a law student, I’ve been thinking about “#sorryimnotsorry” and how many parties in our readings are running that idea through their heads when they lose a case.

    Some of them should be sorry, to be sure. But if they aren’t, maybe they’re not sorry for a reason: they can excuse their behavior. Or maybe they can offer a justification that absolves them of guilt. (Or maybe they’re just jerks.) In our Criminal Law class, we are taught to examine a charged crime first in terms of the act itself, then the defendant’s mental state, and then finally any possible excuses or justifications that could explain and/or mitigate the crime.

    J. L. Austin, in his chapter “A Plea for Excuses” in Philosophical Papers (3rd edition), discusses ordinary language from the point of excuses, exploring “what we should say when, and so why and what we should mean by it” (181; emphasis in original), in order to draw some conclusions about the use of moral language to talk about behavior. He offers three justifications for this approach:

    (1) that “words are our tools” and they should be “clean,” i.e. understood by us when we use them;
    (2) that words aren’t “facts or things” — they can be arbitrary or imprecise or inadequate; and
    (3) that the words available in a natural language suffice to satisfactorily convey all distinctions that we might like to make (181-2).

    Austin draws a distinction between excuses and justifications, but we might also add apologies and confessions into our discussion, too.

    An excuse, as defined by the Oxford English Dictionary in its sense most relevant here, is “that which is offered as a reason for being excused; sometimes in bad sense, a (mere) pretext, a subterfuge; a plea in extenuation of an offense.” An excuse seems to be most useful when one wants to distance oneself from responsibility in an offensive action. It’s rewriting the story of the speaker’s involvement in the deed. For Austin, an excuse aims “to defend [one’s] conduct or to get [one] out of it” (176).

    In criminal law, if a jury or judge buys a complete excuse (such as, say, insanity), a defendant may escape punishment.

    An excuse can be distinguished from a justification, which, in the O.E.D., is “the action of justifying or showing something to be just, right, or proper; vindication of oneself.” A justification doesn’t serve to distance oneself from an offense; it attempts to rewrite the story of an offense so that it’s no longer offensive. In Austin’s words, a justification argues that an action “was a good thing, or the right or sensible thing, or a permissible thing to do” (176).

    In criminal law, a justification may mitigate punishment. For example, a conviction of murder could be slightly reduced to voluntary manslaughter if a jury or judge finds a justification convincing.

    In both excuses and justifications, there is a rewriting taking place — the deed in question is being questioned, and the players and responsibilities are being challenged. For alleged criminals, excuses and justifications are often the last strings they and their attorneys cling onto.

    These two can be contrasted with an apology, which, in the O.E.D., is “an explanation offered to a person affected by one’s action that no offense was intended, coupled with the expression of regret for any that may have been given; or, a frank acknowledgement of the offense with expression of regret for it, by way of reparation.” A pure apology acknowledges that a deed has been done in the way that the audience has perceived it. One must apologize to someone for an action for which the speaker is responsible (and admits so) and because of which the audience was offended.

    So while excuses and justifications do not necessarily require an audience specifically wronged by the excused/justified action, an apology cannot be delivered without one. And while excuses and justifications seek to reframe the deed, apologies acknowledge it as it is perceived.

    There is also the confession, “the disclosing of something the knowledge of which by others is considered humiliating or prejudicial to the person confessing.” A confession brings new information to the table, whereas excuses, justifications, and apologies deal with information known already to the audience. But like an apology, a confession acknowledges a deed and doesn’t (yet) attempt to rewrite anything.

    An apology or confession, in the context of criminal law, would come from guilty defendants. They might be overt, such as in a killer’s teary trial testimony, or they might be covert, such as in some interpretations of O.J. Simpson’s post-trial book If I Did It.

    #sorryimnotsorry doesn’t fit neatly into any of these categories. It starts off with an apology — “sorry” — but the whole sense isn’t really apologetic. It has attitude. It’s almost a confession: I confess that I feel no regret; I apologize if I hurt your feelings with my attitude. But it’s not even that–people who use #sorryimnotsorry aren’t really apologetic about anything. It has undertones of that annoyed teenage response: “sor-ry!” The implications held in the tone of voice and manner of presentation indicate that the speaker/writer isn’t sorry at all.

    In other words, it’s a “sorry-less sorry.” It drains the word “sorry” of its usual meaning and ascribes to it a new, totally opposite definition. (In that sense, it reminds me of that linguistics joke John posted a few weeks ago.)

    In the context of the law, some judges might even approve sanctions on lawyers if they don’t stay within these four categories of excuses, justifications, apologies, and confessions.

    “This court has recognized that requiring counsel to apologize for errant conduct can have an exquisite impact … The letters [of apology] shall not contain qualifying or conditional language [such as] … ‘Because the court has required that I do so, I am apologizing…’ or ‘Although I disagree with the court’s decision, I am apologizing…’ ” Crank v. Crank, 1998 WL 713273, N.D. Tex. 1998.

    A defendant who had the attitude of #sorryimnotsorry wouldn’t get very far. In fact, a defendant who wanted to get any drop of sympathy from a judge or jury would have to engage in one of the four acts described above. We don’t seem to like apologetic statements that stray outside of these categories. Consciously or not, we are often negatively predisposed towards those who attempt to construct an apologetic statement beyond these acts.

    But what about celebrities’ public apologetic statements? Tomorrow: Bill Clinton, Tiger Woods, and the art of making a public apology.

     
  • The Diacritics

    The Diacritics 7:07 pm on September 28, 2011 Permalink | Reply
    Tags: , civil war, , , law,   

    These United States 

    (Posted by John)

    Like a good law student, I was perusing my Constitutional Law book today. Along the way, I found a sort of linguistic diamond in the rough:

    “Prior to the Civil War, ‘the United States’ was treated as a plural noun. In Dred Scott, for example, the Court referred to a federal statute passed during the War of 1812 that referred to ‘the war in which the United States are engaged.’  After the Civil War, by contrast, ‘the United States’ became a singular noun.” Stone, Seidman, Sunstein, Tushnet, and Karlan. Constitutional Law,6th Ed. Aspen Publishers. 2009. p 451

    When I read this, I was immediately reminded of Sandeep’s post on the linguistic legacy of 9/11, where he discusses the effects wars have had on our language.  The change from “are” to “is” that the Civil War brought about is minuscule in size, but ginormous in meaning. It reflects a profound reinterpretation of the relationship between one state and another, as well as between the states and the federal government. The shift marks the real beginning of the public’s acknowledgment that the federal government would expand its control over the states. Personally, I think it’s super cool that this tiny linguistic indicator is as important as any analysis of federal statutes or court opinions in figuring out when this trend began.

    Oh, and don’t forget to vote for The Diacritics here for the Best Grammar Blog of 2011!!

     
  • The Diacritics

    The Diacritics 3:31 pm on September 10, 2011 Permalink | Reply
    Tags: dumbledore, harry potter, law, skill, , virtue,   

    Harry Potter, law school, and the power of language 

    Posted by John

    Question: which famous academic is known by his students for having said, “Never let your skill exceed your virtue?”

    Was it (A) Albus Dumbledore or (B) Yale Law School’s former Dean Harold Koh?

    If you guessed B, you were right. Sitting at the tail end of my law school orientation, I find it amusing that about half of what we were told in our first days of law school was about how not to become a terrible person. We’ve been given lectures ranging from “How not to become a lawyer joke” to “What are the professional rules of conduct for lawyers?” If you were wondering, by the way, why lawyer jokes are not good ones to tell, it’s because lawyers don’t think they’re funny, and nobody else thinks they’re jokes.

    I don’t think this sort of training, jokes aside, is unique to Yale’s orientation program. And I by no means wish to say that Yale thinks most law students are or will become terrible people. Nor do I believe that’s true—both my parents are lawyers, and I think they’re swell.

    But I do think it is interesting that Dean Robert Post, quoting Koh, would feel the need to warn us about the dangers of using law for less-than-noble purposes. It indeed sounds like something out of Harry Potter. So what did he mean? And is this comparison to Harry Potter apt?

    If there’s one thing all of this talk has taught me thus far, it’s that the power of law is at its core the power of language. Learning law, as Professor Heather Gerken told us, is itself learning a new language. To master the law’s deep power, then, is the same task as mastering the language of law. Once we immerse ourselves in and develop control over this new language, the hope is that we can shape it, direct it, and, indeed, wield it like a tangible instrument. Dean Post and others spoke as if we could ply the law as a weapon precisely because that’s what we are trying to learn how to do.

    In a lot of ways, it’s exactly what Harry and company were doing at Hogwarts. They were, themselves, learning a language of great and fundamental power—magic! The point of their education was to learn how responsibly to craft it, wrangle it, and direct it to some end. That idea of learning to wield the power of their language responsibly is the one Dean Post was trying to convey to us. While we might never be able to drop someone dead with two little words, the power of law’s language is real, and thus is real the weight of responsibility in utilizing it.

    Clearly, this is one of the more romantic ways we’ve yet been taught to think about law. That’s probably because it’s more exciting to not-quite-1Ls than telling us about the thousands of pages of case law we’ll soon be reading. But it seems to me that there’s at least some truth behind it. We all know the great power behind arguments made using the language of law (think, say, Brown v. Board of Education), even if we also recognize the profession’s shortcomings (e.g., the potential monotony of law school).

    Back to the Harry Potter analogy, though, there are other ways in which it can be extended. The concept of adversaries in the courtroom is the lawyer’s version of a wizarding duel: Each opponent is attempting to craft arguments—spells—that will outflank the other’s defenses. The really good wizards, like the really good lawyers, will not just look at the rules as they have been understood and applied before. They will use their mastery of the language to come up with creative new ways to accomplish their goals.

    As both a former linguist(-in-training) and a Harry Potter lover, I like this way of thinking about law as a sort of language, comparable in some ways to languages like HP’s magic. Maybe someday, if I can figure it out, I’ll write a post on which subjects would count as, say, the language’s origin (Constitutional Law?), syntax (maybe Procedure?), semantics, and everything else. But until then, does anyone know of a spell that will help me get my torts reading done?

     
  • The Diacritics

    The Diacritics 10:07 am on August 23, 2011 Permalink | Reply
    Tags: alice in wonderland, , , , , humpty dumpty, just a theory, , law, legal analysis, , speech community, ,   

    Humpty Dumpty and the meaning of words 

    posted by Sandeep

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    Through the Looking Glass, Lewis Carroll

    A lot of legal analysis hinges on the technical meanings of words. These definitions can be identified by statute (for example, if a government explicitly defines a criminal law term in its penal code) and by common law (what have previous courts decided that same term means?).

    If neither statutory law nor common law have defined a legal concept, lawyers and courts can also look to a dictionary definition, although this is rare. Nearly three centuries of accumulated law in the United States, building on even more centuries of law in Great Britain, have meant that almost all broad legal concepts have been defined and analyzed. The legal profession even has its own dictionaries — I, myself, just bought a fresh new copy of Black’s Law Dictionary.

    Today in my Criminal Law class, we discussed the meanings of words. Much of the discussion focused on the dichotomy between voluntary and involuntary acts. In common parlance, “voluntary” and “involuntary” have broad meanings: “voluntary” indicates some sort of will or want to achieve an end result. “Involuntary” indicates the absence of that will.

    But in the context of the law, the definitions are much narrower. Understanding these narrow senses is critical to forming an adequate defense to a criminal act. Let’s say John accidentally hit a pedestrian with his car. In normal conversation, we might describe John’s act as “involuntary” because he certainly didn’t mean to hit the pedestrian.

    But in the eyes of the law, a criminal act can’t be considered “involuntary” just because it is unintentional or the actor didn’t foresee potential consequences. Understanding what “involuntary” means is important because the law cannot punish “involuntary” acts.

    “No act is punishable if it is done involuntarily … The term “involuntary act” is, however, capable of wider connotations; and to prevent confusion … in the criminal law an act is not … an involuntary act simply because the doer does not remember it … nor … simply because the doer could not control his impulse to do it.”

    Bratty v. Attorney-General, 1963 A.C. 386, 409-410 (H.L. 1961)

    So wait. John could face years in prison for something we understand as “involuntary”? [Fear not, John--you would probably just get off with involuntary manslaughter, not murder!] Because the law is concerned with what our conscious mind causes us to do, an “involuntary” act cannot encompass things done with a conscious mind, even by accident or under duress, so its definition is narrowed to acts conducted while unconscious, asleep, hypnotized, or seizing. This definition is confusing enough, but to add to the confusion, sometimes the criminal law switches between the colloquial use of “involuntary” and the strict legal definition!

    Ugh! So how does a simple word like “involuntary” have so many conflicting meanings?

    Technical jargon sometimes conflicts with popular understandings of what a word means. When a specialized technical register exists (say, in law or in science), it often develops independently of colloquial usage, mainly because the technical and colloquial register would never interact with each other. So we might imagine a legal scholar ages and ages ago, grappling with the idea of unconscious criminal acts, coming up with two types of acts: involuntary and voluntary, based on the popular understanding of those terms. Over time, other legal scholars might have found limitations in the popular definitions and sought to narrow down their meanings. When the two worlds collide (in John’s criminal trial proceedings, for example), we get confused at the strange, specific usage of apparently familiar terms.

    Another popular example of this discrepancy between popular and technical jargon is the term “theory.” In scientific research, a “theory” is a model used to explain a natural phenomenon. A theory must stand up to rigorous testing and extensive peer-reviewed research before it can be called as such.

    In contrast, our popular understanding of the word “theory” is closer to the meaning of “hypothesis”–an unproved hunch about how a natural phenomenon might work. Disparaging the theory of evolution by natural selection, for example, as “just a theory” subscribes to this colloquial sense, even though evolution by natural selection, like other scientific theories (e.g., the theory of gravitation, germ theory), is a nearly-universally-accepted model of how a natural phenomenon works.

    But why the discrepancy? Why can’t we just all agree that a word means what it means?

    Complex social and individual forces determine the particular meaning ascribed to a word. As I have described above, the same word might mean different things in different contexts. The same word might also carry different social valence in various groups (such as the N-word among some African-Americans versus other racial groups, or vulgar profanity among some social classes versus others).

    Whether a word can have an inherent, inalienable meaning is hotly debated among linguists. I am skeptical that a word can ever have an inherent meaning. Some language prescriptivists (see John’s great post about Americanisms below), especially dictionary authors, believe otherwise.

    Dictionaries record definitions that are meant to document common usages, to be used in a particular speech community at a particular time. An English dictionary from the year 800 (if it existed) would be useless to us today [whether that language could be considered English at all is another topic altogether]. Several entries in a British dictionary would be useless in America today, and vice versa. Do you know what “pukka” means? It’s a word in Indian English: ostensibly a variety of the same language we know, but loaded with terms whose meanings we will never be able to deduce without context or explication.

    Indeed, context is crucial for deducing what particular meaning you are referring to– not only technical contexts (such as law) but also the speech community, register, geographic location, social class, ethnicity, etc. When I say “table,” am I referring to the thing with a flat surface and four (or three? or six?) supporting legs? Or am I telling you to “table” a discussion for our next meeting? Or am I studying the water “table”? Going to “table” for my local non-profit? Maybe “table” is New Jersey slang for the shape of The Situation’s hair.

    Language changes. Languages changes across contemporaneous speech communities (so my New Jersey terminology might be slightly different from John’s Virginia vocab) but it also changes over time. For example, many of the words we use today are derived from French terms (whose origins themselves are in Latin, and so on and so on) with narrower, broader, or completely different senses than their present English definitions.

    Words cannot have inherent meanings when their very existence is so tenuous and malleable.

    Lewis Carroll, in creating the character of Humpty Dumpty (see above), suggested the doctrine of “stipulative definition,” meaning that we can make words mean whatever we want, as long as we explain ourselves beforehand. Scholar Michael Hancher (in the linked article) disagrees, saying that a word’s meaning must be constructed by the commons — we all must agree on what a word means, and by doing so, we give it meaning. This becomes a complex, thorny issue when we consider how many different “commons”–that is, speech communites–exist in our world.

    So, Humpty Dumpty, a word can’t be just what you make it to mean. Sorry. We all have to come to a consensus in each of the languages we speak, whether in a colloquial context (John hit the pedestrianinvoluntarily) or in a technical context (John did not commit an involuntary act) or in some other context.

    Navigating this wonderful, awful complexity, I think, is one of the privileges, and prices, of participating in many different speech communities at once. The alternative, of course, is living in isolation, like Humpty Dumpty (and we know how that turned out…).

     
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