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  • Sandeep Prasanna 3:38 pm on March 9, 2012 Permalink | Reply
    Tags: , , , , law school, may, meanings, 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 shall, may, 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 (I will, 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 May, 50 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.)

  • The Diacritics 6:01 am on October 4, 2011 Permalink | Reply
    Tags: austin, , , , meanings   

    #sorryimnotsorry (an addendum) 

    (Posted by Sandeep)

    Discussing the significance of Clinton’s word choice of “regret” makes me wonder about the strength of Austin’s third justification, that natural language can convey all distinctions required by people.

    Does Clinton really feel “regret” as we might understand it? Is “regret” an appropriate word? It’s probably one of the most significant words in his whole statement — he doesn’t actually ever say “sorry” — so we might assume that he weighed his choice of “regret” carefully.

    So Clinton’s choice is fallible; fine. The way we use natural language isn’t infallible, but in his third justification,

    (3) that the words available in a natural language suffice to satisfactorily convey all distinctions that we might like to make

    Austin seems to be hinting at that by arguing generations of language users have honed and perfected the spoken tongue over centuries.

    Does that mean that somewhere along the line language couldn’t convey all distinctions? That seems highly unlikely, unless we return so far back in human history we’re no longer talking about the modern species. If something needs to be said, it will be said.

    Language isn’t along some sort of scala naturaewith modern language at the peak. Language changes, but it’s not necessarily improving. What I mean to say is that perhaps Austin’s second and third justifications are sometimes at odds with each other — we can’t always acknowledge that our language is inadequate and arbitrary while still glorifying the existing language as complete.

    Other troublesome questions remain, too: is a person who claims to speak English always required to know the semantic shades of meaning of all words? Some people do for some words, and some people don’t for the same words.

    Austin talks about dictionaries and how to use them. I wonder how useful a dictionary is in terms of ordinary language. Yes, we use them, but what about before dictionaries? How were people able to deduce shades of meaning?

    Ordinary language is what people do say. People speak, and people have spoken for the history of our species. Here is where Austin’s scala naturae also uncomfortably collides with the science of language development. Oral language came first, and there were no dictionaries then. All present literate societies are fundamentally oral and secondarily written. Austin argues that, well, language has developed more shades of distinction over time. We know that to be dubious, but it would actually theoretically go in tandem with the fact that dictionaries are a recent, helpful invention.

    The relationship between Austin’s assertions and what is known about historical language development is complex, but I can’t help feeling that there is some gulf of understanding between the two.

  • The Diacritics 5:37 am on October 3, 2011 Permalink | Reply
    Tags: , , crime, , , , , , meanings, 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.

    • johnwcowan 11:00 am on October 3, 2011 Permalink | Reply

      An apology is a complex speech act. As I analyze it, it contains a confession as one of its parts: one must admit to doing wrong in order to even begin apologizing. If this admission is conditional, it’s no admission at all. The next part is contrition: being sorry and saying so. Finally, there must be a promise of amendment. (Not surprisingly, these are also components of the Catholic sacrament of penance.) An apology that doesn’t contain all of these parts is really a non-apology, and has no redemptive value.

      There is also an interesting link between excuses and justifications. The mark of arbitrary authority is that it treats all justifications as excuses, and either punishes them more severely than the original offense (old school), or simply ignores all of them (new school).

      • mnhougaard 2:17 pm on October 3, 2011 Permalink | Reply

        “Being sorry,” even in an apology, doesn’t quite cut it unless it’s specifically, “I am sorry my actions have hurt you.” Why? Because there are other reasons, even in an apology, why a person would be sorry. For example take this apology: “I broke the window with my baseball. I’m sorry. I’ll never do it again.” Now, fill in one of the following unspoken phrases behind the “I’m sorry,” 1) “I got caught,” 2) “I’ll be punished,” 3) “I ruined my baseball.” Not much of an apology now, is it?

        That is why most public apologies by celebrities (I know, tomorrow’s topic) don’t wash with me. They’re not apologizing that their actions hurt someone else, but rather that they got caught and now are being punished.

  • The Diacritics 10:56 pm on August 24, 2011 Permalink | Reply
    Tags: , , , meanings, processing, pun,   

    Awesome Sentences (Part II of II) 

    posted by John

    Before we get started I just want to remind everyone: Club sandwiches, not seals.

    My first Awesome Sentences post was about recursion and processing capacity. Our language faculty can create infinitely long sentences using things like embedding, but our brains can only understand so many nested sentences at once. This led to some cool and confusing sentences:

    • Bulldogs bulldogs bulldogs fight fight fight.
    • The girl the cake the baker the owner fired baked hit screamed.

    But the capacity of our language processing system isn’t the only thing that leads to crazy sentences. In the public service announcement with which I began the post, we see an example of another very interesting processing effect. The sentence is reminding you that if you’re going to club something, make it a sandwich, not a seal. When you read it, however, you see ‘club’ used in a familiar sense—as in, a club sandwich—before you realize it’s being used (very punnily) as a verb. The pun comes about because you have to go back and reassess the meaning of what you read before, even though you thought you already knew. Let’s look at a few more.

    What if I said the following sentences to you:

    1. The horse raced past the barn fell.
    2. The old man the boat.
    3. The lady returned to her house cleaned the kitchen.

    Would you believe me if I told you that these are all grammatical English sentences? If you wouldn’t, you should, because they are. Each of them employs a similar trick to the one used in “Club sandwiches, not seals,” and they have even been given a special name by linguists: “garden path” sentences.  How did they earn this name? By leading the listener down what he or she thinks is a certain ‘path’ that the sentence will take, and then all of a sudden turning into something entirely different (ok, so the name doesn’t make absolute sense, but at least the part about being led down a path does).

    In the first sentence, “The horse raced past the barn fell,” we start off with what looks like the most basic syntactic structure of English. This would be the intransitive sentence, “The horse raced.” To it we add another common syntactic feature—the prepositional phrase “past the barn.” So far, our brain thinks it is looking at a run-of-the-mill intransitive sentence with an attached prepositional phrase. However, when we get to the final word, “fell,” we realize that what we initially thought was an intransitive sentence is actually something entirely different. Instead, we should have understood, “The horse that was raced past the barn [by the rider] fell.”

    The problem is that by the time we get to ‘fell,’ we have already processed the sentence as what we initially thought it was going to be. Thus our brain does not accept the last word as a coherent addition to the utterance.

    So what does this mean? It means that when we hear a sentence, our brain is immediately applying the most likely interpretation of the words and structure it is seeing and then making predictions about what is likely to come next. Simply put, we process on the fly, not as a whole. This is a sort of efficiency mechanism, designed to speed up processing and boost the overall utility of language. It backfires, however, when the “garden path” down which we are being led suddenly takes an unexpected turn, and the initial interpretation is shown to be incorrect. By the time we get to it, our brains have already ruled out “fell” as an appropriate final word for the sentence.

    Thus, in the second sentence “The old man the boat,” we begin with a common noun phrase modified by an adjective—“the old man.” We immediately process it as such, and now we are looking for the most likely thing to come next: a verb. This means that when we get to “the boat,” which is decidedly not a verb, the sentence stops making sense.

    What we don’t realize on our first try is that “the old,” (as in old people) is the subject, and that “man” (as in operate) is the verb.  If we had, we would know that “the boat” is simply a direct object. But because our brain expects to find a verb following the noun phrase “the old man,” we get confused. Only after this happens do we go back and reinterpret the sentence holistically: “Old people operate the boat.”

    The same thing occurs in the third sentence, “The lady returned to her house cleaned the kitchen.” By now, you know you should look for the trick, and you’ve recognized that the sentence means “The lady who was returned to her house cleaned the kitchen.”

    But for many people, the first time they read it, they think it is missing an “and” between “house” and “cleaned.” They interpret “The lady returned to her house” as they are first reading it. Because subordinate clauses (The lady [who was returned to her house]) are less common than simple intransitive sentences, they think they are seeing “the lady returned,” not “the lady [who was returned].” Thus when they reach “cleaned the kitchen,” it appears that the main verb has already come (“return”), and something goes awry.

    These are classic examples of “garden path” sentences. If you can come up with any novel ones, or if you have any other awesome sentences for us, leave a comment. And remember, the complex cool sentences can lead people to is like an obsession—so be careful!

    • johnwcowan 10:54 pm on September 10, 2011 Permalink | Reply

      I’ve always thought The horse raced past the barn fell and its friends were crappy examples: they are only marginally grammatical examples of small clauses for me. The tomcat curled up on the cushion seemed friendly is much better, because curled is stative and can be understood as an adjective in the second (non-garden-path) reading. Still, The cotton clothing is made of grows in Mississippi and The complex houses married and single soldiers and their families are infinitely better. (All examples from Wikipedia.)

  • The Diacritics 1:07 pm on August 23, 2011 Permalink | Reply
    Tags: alice in wonderland, , , , , humpty dumpty, just a theory, , , legal analysis, meanings, 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 pedestrian involuntarily) 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…).

    • The Diacritics 5:34 pm on August 23, 2011 Permalink | Reply

      “It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” [In simpler terms: the usefulness of dictionaries in a courtroom is limited, because statutes may have specific, unique meanings in mind. –s.p.] — Judge Learned Hand, Cabell v. Markham, 148 F. 2d 737

    • johnwcowan 10:58 pm on September 10, 2011 Permalink | Reply

      Note that table a discussion (or motion) means something different in North America than elsewhere: to take something off the table, rather than to put it on the table.

    • stuartnz 5:18 am on September 11, 2011 Permalink | Reply

      Did Lewis Carroll suggest the doctrine of stipulative definition, or was he mocking it, in a sort of reductio ad absurdum style? At least one Carroll biographer I’ve read suggests the latter, which would fit with his mathematician’s prescriptivist pedantry.

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