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  • Sandeep Prasanna 3:38 pm on March 9, 2012 Permalink | Reply
    Tags: , , , , law school, may, , parsing, shall, the language of law, 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 12:14 pm on November 21, 2011 Permalink | Reply
    Tags: apple, , , legalese, license agreement, south park, the language of law   

    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…

    • johnwcowan 1:33 pm on November 21, 2011 Permalink | Reply

      Fortunately for us all, contracts of adhesion are construed strictly against their creators, and this is so (in most jurisdictions) notwithstanding any language in the contract that attempts to opt out of the strict construal rule. Public policy does still rule in a few parts of the law, and “a dirty dog will get no dinner from the courts”.

  • The Diacritics 6:31 pm on September 10, 2011 Permalink | Reply
    Tags: dumbledore, harry potter, , skill, the language of law, 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 6:39 pm on September 10, 2011 Permalink | Reply

      Awesome! I wonder, too, how much “the law” is really just the manipulation of language in general — not just “the language of the law,” but general “language”… and how lawyers are really just surgical linguists, exacting what they need from our language for their own ends?

    • Captain Person (@captainperson) 7:37 am on September 11, 2011 Permalink | Reply

      Have you read Lev Grossman’s The Magicians? The author expands on the “hey, what if Hogwarts was more like a law school” idea a bit there.

      • The Diacritics 10:55 am on September 11, 2011 Permalink | Reply

        I have not! Looks like a cool book, though. Should’ve done my due diligence better!

    • Jeyna Grace 8:12 am on September 11, 2011 Permalink | Reply


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