A Linguist Goes to Law School

Here\'s a desperately needed canon of construction
The Choose Life Canon: If a statute is ambiguous, and interpreting it one way will save many more people's lives than interpreting it the other way, interpret it so it saves more people's lives.

For an illustration, see FDA v. Brown and Williamson Tobacco Corp., 529 U.S. 120 (2000). The FDA had interpreted Congress's delegation to it of authority to regulate "drugs" and "devices" to include the authority to regulate tobacco products such as cigarettes. Consequently it established regulations aimed at reducing the likelihood that children would take up smoking. The tobacco companies sued, arguing that that there was no Congressional grant of regulatory authority to the FDA.

The arguments included many interpretive rules, and on the basis of several of these, the majority sided with the tobacco companies. On the basis of several other rules, four justices dissented. Underlying parts of Justice Breyer's dissent was an idea that looks like a more particular instance of the canon I'm proposing: "In my view, where linguistically permissible, we should interpret the FDCA in light of Congress? overall desire to protect health."

Maybe if the majority had accepted the Choose Life Canon, hundreds of thousands of lives might have been saved.

I suppose the principle can be generalized, as follows:

If a statute is ambiguous, and interpreting it one way causes greater social benefit than interpreting it the other way, interpret it so it causes greater social benefit.

The philosophical basis for such a canon is pretty straightforward: the purpose of the law is the common good, so the courts, which uphold the law, should err on the side of the common good.

There is also a division of powers rationale: The purpose of the legislature is to promote the common good, so the court ought to suppose that the legislation is aimed at the common good.
Author : Uri

A paradox in bankruptcy law
And now for something completely different: a possible legal paradox.

(The further thoughts I promised on the SCAT hypothesis are coming soon.)

Consider the following situation:

A debtor walks into a lawyer's office and declares that he's bankrupt. The lawyer advises him that a declaration of bankruptcy might be more legally effective if done in a formal legal proceeding. The debtor says okay, and asks the lawyer to represent him in such as proceeding. She agrees. The debtor and the lawyer sign a contract where the lawyer agrees to represent the debtor for a flat fee of $2000, payable in quarterly installments of $500, with the entire agreement being subject to the court's agreeing to appoint the lawyer as the debtor's representative ? a necessary procedure under bankruptcy law.

The lawyer petitions the bankruptcy court to be appointed as the debtor's representative. The court reasons as follows:

If we appoint the lawyer, she becomes a creditor of the debtor she's representing.
If she's a creditor, she has a potential conflict of interest, since her duties to the client include trying to discharge as many of his debts as possible.
Since a lawyer cannot be in such a potential conflict of interests with her client, we cannot permit the appointment.

But by not appointing her, the court prevents the conflict of interest from arising. And in the absence of a potential conflict of interest, there is no reason not to appoint the lawyer, and the court ought to appoint her.

And repeat.

Of course, the court has the discretion to disqualify the lawyer for any other good reason, including that representation would give rise to a paradox. But this gives rise to the same problem: if the court doesn't appoint her, it does not give rise to a paradox, meaning the court should appoint her.

This may fall short of a genuine paradox, since the lawyer probably does not have an actual right to be appointed, subject only to a good reason not to appoint her. The court would certainly be right to disqualify her. I just don't know why.
Author : Uri

The SCAT hypothesis of meaning and the textualist fallacy
The SCAT hypothesis of meaning holds that the components of meaning are Structure, Context, And Text, not necessarily in that order. I name this hypothesis and make it explicit because it is common to suppose, to the contrary, that meaning is determined only by text. This erroneous supposition I call the "textualist fallacy."

It is easy to show that meaning is more than the sum of the words in a text. The fact that "Oscar is taller than Nigel" does not mean the same thing as "Nigel is taller than Oscar," despite the fact that they contain exactly the same words, is proof enough. This, however, can be explained by invoking linearity rather than structure or context, so it does not prove that structure and context are components of meaning.

But there is abundant evidence that structure contributes to meaning. For example, the phrasal ambiguity as in "old men and women adore me" (the subject is either old men and all women, or old men and old women) is not explained by word order, but is explained by assuming an internal structure for the sentence. If "old" is grouped with "men" and the result grouped with "and women," then we get the first meaning. If, on the other hand, "men" is first grouped with "and women" and the result is grouped with "old," we get the second meaning. Since different structures give rise to different meanings, structure must play a role in determining the meaning.

There is also abundant evidence that context contributes to meaning. In "John's pen," for example, we don't know the nature of the relationship between John and the pen until we have some context. In a context-free environment like I just presented, it is natural to interpret the relation as ownership, such that John owns the pen. But put in other contexts, many other relations are possible. John could be the creator of the pen, the inventor of the kind of pen, the person who is currently holding the pen, or even just the person who pointed to the pen.

The examples of the contribution of structure and the contribution of context are single examples of phenomena that are pervasive. To see the pervasiveness of context, take the meaning of any extended text, comparing it to the meaning of each individual word, for example by looking it up in a dictionary. Many words will have multiple definitions (and even the best dictionaries significantly understate the number of senses of many words), but the extended text will permit far fewer meanings than the product of the definitions of the words. This is because context will eliminate many of the theoretically possible meanings.

To see the pervasiveness of structure, read an introduction to linguistic analysis, such as Steven Pinker's The Language Instinct.

The SCAT hypothesis represents the narrowest possible theory consistent with the basic realities of language. It may be that other factors, like linearity, will have to be added.

The textualist fallacy is not something I just invented for pedagogical reasons. People fall for it all the time. Even legal scholars fall for it. In separate posts I will show how a recent scholarly paper falls for the textualist fallacy, and I will suggest that even the Supreme Court fell for it in a landmark opinion.
Author : Uri

The textualist fallacy: trying to impute meaning to "of"
I've promised an example of the textualist fallacy in legal scholarship. Recall that the SCAT hypothesis holds that the components of meaning of a legal text (and all other texts, really) are structure, context and text, while the textualist fallacy happens when one assumes that meaning comes only from text.

Since today is oral argument day in McDonald v. Chicago, I'll illustrate with an example from commentary on the case. In McDonald, the U.S. Supreme Court will decide whether the Second Amendment's individual right to keep and bear arms is incorporated against the states under the Fourteenth Amendment, or whether it is restricted to the right against the federal government that was found in D.C. v. Heller.

A bit of background explanation may be in order, for readers who know even less constitutional law than I do. Besides the equal protection clause, ection 1 of the Fourteenth Amendment, passed in 1868, contains two clauses that would seem to restrict the ability of states to interfere with individual freedoms of citizens: the privileges or immunities clause (?No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States?), and the due process clause (?nor shall any state deprive any person of life, liberty, or property, without due process of law?). It is generally agreed that the effect of these is to create rights against the states parallel to the rights that exist against the federal government, which is known as incorporating those rights against the states.

Not all rights against the federal government are incorporated against the states. For example, the Seventh Amendment's right to a jury trial has been held not applicable against the states. Other rights have not been adjudicated yet, most saliently the right to keep and bear arms, which was held less than two years ago to include an individual right to possess weapons, in District of Columbia v. Heller. The defendant in that case was the federal government, because the District of Columbia is not a state. McDonald will decide whether one of the Fourteenth Amendment's incorporation clauses protects this right against the states as well.

This is a pretty big question, but McDonald is actually bigger, because the Supreme Court will consider both Fourteenth Amendment clauses as bases for incorporating the right, instead of just the Due Process clause, as it usually does. This is seen by many as an opportunity to correct a historical wrong in the interpretation of the clauses. The privileges or immunities clause may seem, to the ordinary reader, to be more powerful than the due process clause, because it prohibits state interference with substantive rights of citizens, while the due process clause appears to refer only to procedural rights such as the right to a fair trial. In reality, it has almost always been the due process clause that has been used to incorporate rights against the state, including substantive rights. The privileges or immunities clause, on the other hand, has hardly been held to protect anything at all.

Many people are irked by the court's failure to give effect to the privileges or immunities clause, and many of the same and others are irked by the court's creation of substantive rights under the due process clause, where the Constitution seems to only state procedural rights. It is therefore hoped by many that the Supreme Court will ?resurrect? the privileges or immunities clause as a source of substantive rights against the states, and perhaps take the offending substance out of the due process clause.

In anticipation of the Court's discussion of the privileges or immunities clause, commentators are discussing how this clause might and should be interpreted. In this connection, Christopher R. Green wrote McDonald v. Chicago, the Meaning-Application Distinction, and ?Of? in the Privileges or Immunities Clause, which falls into the textualist trap by claiming that the controversy about the meaning of the privileges or immunities clause is a controversy over the meaning of the word ?of.?

What is the controversy over the meaning of the privileges or immunities clause? Green presents the following as some of the possible (and plausible) interpretations of ?privileges or immunities of citizens of the United States.?

a. Rights ?'which owe their existence to the Federal government, its National character, its Constitution, or its laws.'?

b. Rights ?[p]ossessed under the Constitution against the federal government by? citizens of United States.

c. Rights ?[g]enerally possessed under state constitutions, statutes and common law by? citizens of the United States.

d. Rights ?[g]enerally possessed in 1868 under state constitutions, statutes and common law by? citizens of the United States.

e. Rights ?[p]ossessed as a matter of natural right by? citizens of the United States.

f. Rights ?[p]ossessed locally by? citizens of the United States.

The controversy is therefore not about whether ?privileges or immunities? refers to something other than rights; it is over what ?rights? means in this context, and specifically, in Green's words, ?the relationship that a right must bear to 'citizens of the United States' to count.? He then continues, ?[W]hich is to say, over the meaning of 'of',? which, I argue, is where he errs.

Green's argument can be presented as follows:

1.The phrase ?privileges or immunities of citizens of the United States? has several plausible interpretations, and its meaning is controversial.

2.Therefore it is ambiguous.

3.If a sentence is ambiguous, one of its components must be ambiguous.

4.The meaning of ?privileges or immunities? is uncontroversial. It means ?rights.?

5.The meaning of ?citizens of the United States? is also uncontroversial.

6.The only leftover text is ?of.? Therefore the ambiguity is in the word ?of.?

Green thus falls into the textualist trap by using a sensible-seeming principle: when you have eliminated the uncontentious, whatever remains, however semantically empty, must be the source of contention. The problem is that eliminating all the text but one word doesn't just leave the one word. Under the SCAT hypothesis, It leaves one word plus all of the invisible, non-text components of meaning: the structure and context.

I would locate the ambiguity not in the word ?of? but in the context. ?Right? is a modal word, and modals are notoriously dependent on context for their meaning. ?Right? is modal because whether something is a right or not must be resolved by reference to possibility, rather than the actual world. You can't tell if something is a right by determining whether someone does it, since rights don't have to be exercised. Philosophers and semanticists model modals using possible worlds, so that something is possible if it happens in some possible world with the relevant characteristics, and something is necessary if it happens in every possible world with the relevant characteristics. The indeterminacy of the privileges and immunities clause arises from what the relevant characteristics are in the set of possible worlds that we consider when evaluating the word ?right.?

That may sound circular, but it is actually not. The semantic meaning of the word ?right,? if I'm theorizing it correctly, is a function which (in essence) takes as an input an individual X and an action E, and returns the value ?TRUE? if and only if there is a world W in which X does E, and W is in a certain set of possible worlds. The particular meaning of ?right? will emerge from the choice of sets of worlds. Green's meaning 1, above, might pick out the set {w1, w2, w3}, where the w's represent possible worlds, while his meaning 2 might pick out {w1, w2, w3, w4}. The word ?rights? doesn't show up at this level - it is inherent in the set; and the different possible meanings for ?right? are the criteria by which the membership in the sets is picked out.

The alternative, that ?of? is many ways ambiguous, just doesn't work. We all have the intuition that ?of? has little, if any, semantic content. I know of no evidence that ?of? is modal, so it is not possible to blame the indeterminacy of the privileges or immunities clause on a function that selects possible worlds for placement in a set, as we can do with ?right.? If ?of? means anything, it might mean something like ?a function from a whole to the set of its parts,? which at least accounts for one type of phrase containing ?of? - the type seen in ?three of the boys.?

More likely, ?of? is just like the pleonastics ?it? and ?there,? which are believed to carry no meaning in sentences like ?it is better to have loved and lost than never to have loved at all,? and ?there lived a country boy named Johnny B. Goode.? ?Of? is probably just a placeholder like the other pleonastics, which must be vocalized for syntactic or morphological or phonological reasons, but which contribute no meaning of their own.

None of this is to pick on Green, who appears, unlike some jurists who write about language, to have some sophistication in the subject. Nor is it to disagree with his conclusions about what the plausible interpretations of the privileges or immunities clause are, or about his conclusion of which interpretations are the best options ? topics I am not competent to broach. I wrote this post simply to illustrate the textualist fallacy, and I used Green's paper as illustration because I happened to have recently read it. And the fact that someone like Green can fall for the textualist fallacy suggests that everyone should be on the alert for it.
Author : Uri

The linguistics of God
Is God a linguistic object? The results of two very brief explorations suggest different conclusions.

In one of his pornolinguistic papers, James D. McCawley, writing as Quang Phuc Dong of the South Hanoi Institute of Technology (beating Accepted to the joke by about 40 years) explores subjectless sentences like "fuck you" and "damn you." He argues convincingly that they are not imperatives, but is unable to advance a meaningful alternative analysis.

One of the alternatives that he considers and discards posits that such sentences have God as the subject in their underlying representations, followed by a deletion transformation creating the appearance of subjectlessness in their surface representations. Like so:

UR: God fuck you.
DT: God --> /subject position
SR: Fuck you.

Besides accounting for the absence of a subject, this analysis has the advantage of being acceptable to both atheists and theists. Atheists can call it "God-deletion," while theists can invoke the hidden hand of God.

Ultimately, this analysis doesn't work. Besides not being very explanatory, there is the fact that you cannot say *"Fuck himself" to mean "fuck God.," but you can say "Fuck God" to mean "Fuck God." This should not be possible if God is the hidden subject.

So subjectless sentences are not good evidence for God. But there is better evidence from Hebrew negative imperatives.

As I think I pointed out in my masters thesis (I haven't organized my books since I moved last month, and finding the thesis would be a hassle), the normal way to express negation in Hebrew suppletive imperatives is with the use of the negative al:

(1) al tircax oto!
neg murder.2.masc.sg.fut him.DO
"Don't murder him!"

However, if God is issuing a commandment, the proper form of the negative is lo:

(2) a. lo tircax!
b. ?al tirtzach!
"Thou shalt not kill!"

The sentences with al is shown with a question mark to indicate that the utterance, while not unacceptable, is ungodly. That is, if God uttered (2b), it would be interpreted as carrying less than the full authority and timelessness of one of God's commandments.

The pattern in (1)-(2) is decent prima facie evidence of the existence of God, at least as a morphological phenomenon. I propose to formalize this by subscripting either [+God] or [-God] to morphemes, depending on whether they are or are not godly. Thus al would be represented


Neg[+imp, -God]

while lo would be represented


Neg[+imp, +God].

Can a non-God speaker use lo? My intuition as a semi-native speaker is that this is possible, but it would be interpreted as a "godly" statement. So for example an emperor might use lo to issue an edict, but it would be seen as extremely arrogant language, such as that of a megalomaniac who thinks he is as great as God. It would not be used by someone like a judge or a democratic political figure, even if it the statement was completely authoritative.

Can God use al? Yes. If God was speaking to a person in a more private capacity, rather than issuing universal commandments, Gods would use al. In fact, he did so all the time in the Bible. So for example, when God played a practical joke on Abraham, and had him bind Isaac to an altar and get ready to sacrifice him, he used al to tell Abraham not to harm Isaac after all. The key to godly language is that it expresses a universal, principled prohibition, not just a particular "don't do this."

I know of no evidence of the existence of God in nonimperative morphology. There are many mysteries in the morphology of imperatives, both in Hebrew and more universally. Whether the presence of God in imperative morphology advances linguistic research remains to be seen. But it sure is fun to think about.






Author : Uri

Global Language Map

Here?s a nice-looking, if very coarse-grained, map of the languages of the world. It shows the most widely spoken languages, but continent. I?m posting it mostly because I had not been aware, until I saw the data on the map, just how much less linguistically diverse North America is than any other continent shown.

But I guess that result is only due to the fact that Australia is not counted as a separate continent, but rather as part of ?Asia and Pacific,? so that its overwhelmingly English-speaking population is drowned out by the languages of China, Indonesia, Japan and Indonesia.
Author : Uri

Shooting into a structure from within it
The Statutory Construction Blog points out this Pennsylvania opinion which asks whether one can shoot into a building that one already occupies. The court holds that one can't, since "the plain meaning of the term ?into? requires that the original location is outside of the destination."

The statute in question declares the following:

A person commits an offense if he knowingly, intentionally, or recklessly discharges a firearm from any location into an occupied structure.


Unfortunately, the court resorts to looking up "into" in the dictionary, but in this case the practice did not lead the court to the wrong result.

The government's main argument was that "from any location" is so broad that it must include any place inside the occupied structure.

I think the court got it right. If "from any location" is taken literally, we have a contradiction between this phrase and "into," which either makes the law self-contradictory, or requires that the law be constructed or interpreted in a non-contradictory way. In this case, there is no need for the court to construct a rule, because pragmatic principles of interpretation plainly allow us to limit "from any location" to mean "from any location outside the structure." The domain of "any" is more flexible than the requirement that the path described by "into" start outside of the locational reference point.
Author : Uri

Transcript from Flores-Figueroa

Here. Argument recap here.


Author : Uri

What is Language and Law?

Peter Tiersma asks: What is Language and Law? And Does Anyone Care?

I care! The paper is from the volume LAW AND LANGUAGE: THEORY AND SOCIETY, which I don?t know much about, because the product descriptions online are in a foreign language.
Author : Uri

Solum on Possibility and Necessity in Law
Prof. Solum suggests that arguments about legal possibility and necessity can be sharpened by using the possible worlds approach to modality. Quite possibly so. The possible worlds approach is fascinating (to me, at least) and it's useful philosophical knowledge in any case. In my note, I argued that it was Justice Scalia's failure to attend to the difference between universal and existential modality (the feature that distinguishes possibility from necessity) that led him to reason wrongly about the meaning of the Second Amendment in D.C. v. Heller.
Author : Uri

Another Linguists\' Brief
The Supreme Court has agreed to hear Flores-Figueroa v. United States. Oral argument is set for next Wednesday, Feb. 25th. As in Hayes, there is a linguists' amicus brief on behalf of neither party (authored by the same attorney). Amici this time are Tom Ernst, Georgia Green, Jeffrey Kaplan and Sally McConnell-Ginet, and the subject matter is adverbs. In particular, the interpretation of the phrase knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, and whether a means of identification of another person is in the scope of knowing. The conclusion: unambiguously yes, unless the reader adopts the not very natural de re reading.

By the way, oral argument in Hayes was full of linguistic discussion. Also, Chief Justice Roberts learned a new word, "romanette."



Author : Uri

Summary of my second amendment paper
I've made some promises to some people about trying to summarize my paper about the linguistics of the second amendment. Here is my attempt. The full paper is available here (the website makes you wait 90 seconds before downloading, since I signed up for a free membership; the delay is their way of motivating people to get paid memberships).

The issue is as follows: In the Supreme Court case of D.C. v. Heller (discussed previously on this blog here, here and here), Justice Scalia, author of the majority opinion, and Justice Stevens, author of one of the two dissents, disagree over whether the absence of the word to, bracketed in the following, is semantically significant.

The right of the people to keep and [to] bear arms shall not be infringed.

Justice Stevens reports the intuition that the absence of to supports the conception that the amendment does not protect two separate rights, but rather a single right,

a right to have arms available and ready for military service, and to use them for military purposes when necessary.

Justice Scalia disagrees:

JUSTICE STEVENS resorts to the bizarre argument that because the word "to" is not included before "bear" (whereas it is included before "petition" in the First Amendment), the unitary meaning of "to keep and bear" is established. Post, at 16, n. 13. We have never heard of the proposition that omitting repetition of the "to" causes two verbs with different meanings to become one. A promise "to support and to defend the Constitution of the United States" is not a whit different from a promise "to support and defend the Constitution of the United States."


Both Stevens and Scalia appear to be correct in the judgments that they report, which means that as far as interpreting the Constitition, Stevens is correct and Scalia is incorrect. Scalia makes the error of dismissing an English speaker's intuition about the language of the second amendment by theorizing about linguistics. The purpose of my paper is to show why Scalia's reasoning about linguistics is wrong.

The task, then, is to identify the property of the sentences that makes the presence of to significant in the Constitution, but not significant in Scalia's example sentences. I argue that of the various differences between the sentence pairs (such as the definiteness or indefiniteness of the phrase, and the definiteness and plurality of the object [arms vs. the Constitution of the United States]), the key difference is between right and promise, and the important difference between these two modal nouns is the quantificational force - the fact that right denotes an existential modal noun while promise denotes a universal modal noun.

That the difference is due to right and promise is evidenced by the following sentence pairs, where the sentences are to the extent possible held constant except for right vs. promise, and the presence vs. absence of to.

Right:

a. Workers have the right to unionize and strike

b. Workers have the right to unionize and to strike

Promise:

a. The workers made a promise to unionize and strike

b. The workers made a promise to unionize and to strike

In the case of right, there is a clear truth-conditional difference between the sentences. The (a) sentence does not seem to be asserting an absolute right to strike; rather, the right to do so is contingent on their first having unionized. In the (b) sentence, the right to strike is unconditional.

In the case of promise, there is no such difference. In both (a) and (b) there are two independent promises. If the workers made the promise in (a) and then broke their promise to unionize, their commitment to strike still stands.

So the question is why right is different from promise. As I've suggested, my approach is that it has to do with the quantificational difference between the terms. Right is an existential modal: X has a right to do R if in some possible world consistent with X's rights, X does R. Promise is a universal modal: if X has made a promise to do P, then X does P in every world consistent with X's commitments.

What difference does the quantificational force make? Well, consider the following truth conditions.

a. "A has the right to keep and bear arms" is true iff in some world w in the set W, where W is the set of worlds consistent with A's rights, A keeps arms in w and bears arms in w.

b. "A has the right to keep and to bear arms" is true iff in some world w in the set W, where W is the set of worlds consistent with A's rights, A keeps arms in w, and in some world w' in the set W, where W is the set of worlds consistent with A's rights, A bears arms in w'.

These are different truth conditions. (a) unifies the keeping of arms and the bearing of arms by requiring them to take place in the same possible world, while in (b) they can occur in separate worlds, and are therefore independent rights. But if the quantificational force is existential, the truth conditions come out logically equivalent:

a. "A has made a promise to support and defend the Constitution" is true iff in every world w in the set W, where W is the set of worlds consistent with A's promises, A supports the Constitution in w and A defends the Constitution in w.

b. "A has made a promise to support and to defend the Constitution" is true iff in every world w in the set W, where W is the set of worlds consistent with A's promises, A supports the Constitution in w, and in every world w' in the set W, where W is the set of worlds consistent with A's promises, A defends the Constitution in w'.

This gets us the semantic difference between right and promise, and therefore accounts for our intuitions about the second amendment and Scalia's attempted counterexample. The rest of the paper aims to justify the truth conditions just shown, by arguing for syntactic structures and semantic analysis of these sentences.

In the syntax section of my paper, I argue that the presence or absence of to is probative of a substantial structural difference. So the reason that the right to keep and bear arms means something different from the right to keep and to bear arms is not the lexical semantics of the word to, but the fact that in the former sentence it is just the verbs keep and bear that are conjoined, while in the latter, the full infinitival clause is conjoined. The conjunction is indicated in the following:

a. The right of the people PRO to [keep and bear] arms
b. The right of the people [PRO to keep arms and PRO to bear arms]


[Explanations: PRO is the invisible subject of the infinitival clause; the first instance of "arms" in (b) is phonetically deleted by a process that I can only guess at - it's not a fantastic analysis, but it beats the alternatives.]

Given this syntactic analysis, the logical forms are determined by the semantics as follows. Keep and bear each denote functions from entities (their direct object) to sets of events. So in the sentence John kept his house, the function denoted by keep takes as an argument the entity John's house, and returns the set of events of keeping John's house. I think the semanticists are calling this the neo-Davidsonian or the semi-Davidsonian approach to verb meanings - I've always had trouble keeping these terms straight.

In (a), keep and bear are conjoined. The semantic result is that the truth conditions of each are required. So the meaning of the conjunction is a function from an entity (the direct object of the conjoined verb) to a set of events - the set of events in which the object is both kept and borne.

To takes a set of events as input, and returns a function from entities to sets of worlds in which the entity is the agent of the appropriate type of event in the world. For example, in PRO to keep and bear arms, to takes as its first input the set of events of keepoing and bearing arms, then takes PRO as its entity argument, and returns as the meaning of the infinitival clause the set of worlds in which there is an event of keeping and bearing arms of which PRO is the agent. Ultimately, the truth condition of (a) makes the people the referent of PRO, and compares this set of worlds with the set of worlds consistent with the rights of the people.

The semantic analysis of (b) is more complicated, and requires some creativity of analysis. The meanings of PRO to keep arms and PRO to bear arms are determined straightforwardly - they denote the sets of worlds in which there are events of keeping or bearing arms, respectively, with PRO as the agent of the events.

The challenge is dealing with the conjunction. The ordinary approach to conjoining two sets of worlds would be to create a new set of worlds such that the conditions of both of the sets are met. In this case, the result would be the set of worlds that contain an event of PRO keeping arms and an event of PRO bearing arms. The rest of the semantic analysis would be the same as for (a): PRO would be assigned the meaning "the people," and the set would then be compared with the set of worlds consistent with the rights of the people.

The problem is that this does not match our intuition about the meaning of the sentence. We tend to interpret the right to keep and to bear arms as equivalent to the right to keep arms and the right to bear arms, yet this is not the result of the most straightforward semantic analysis.

The problem seems to be this: in conjunctions such as this one, the conjunction appears to take very wide scope, in effect to be conjoining entire propositions, even if the syntax makes it look like the conjunction is more local. In this case, it is only the infinitival clause that is conjoined syntactically, though semantically it is the propositions that are conjoined. My suggestion is that this syntax/semantics disparity takes place where the conjoined object is an argument rather than a function; that is, when the combinatory operation that the conjoined object participates in is one in which it is "fed into" the meaning of the adjacent object, as in (b), where the set of worlds denoted by the infinitive is one of the arguments of the (denotation of the) word right.
Not, as in (a), one in which the conjoined object takes the adjacent element as an argument, as in (a) where the conjoined verb takes the direct object arms as an argument.

What I propose, then, is that we need a different rule for interpreting conjunctions in situations in which the conjunction is an argument. What I suggest, without presenting a real formal analysis, is that whenever the semantics encounters a conjunction, it assigns it the meaning of the set of conjuncts. So in the case of keep and bear, the meaning is the set consisting of two functions from entities to sets of events, while in the case of PRO to keep arms and PRO to bear arms, it is the set consisting of two sets of worlds.

This set then has the option of either undergoing the traditional conjunction rule and combining with an argument, or of undergoing a new operation and feeding into a function. The new operation consists of creating two separate semantic derivations that are conjoined at the proposition level. So the two sets of worlds in (b) will each, independently, combine with right, yielding a proposition, and those two propositions will be conjoined.

I haven't seen such a procedure suggested before, but it looks like it can handle the syntax/semantics mismatch in the scope of coordination, and it does it without any "looking ahead" by the semantic derivation to see the future interactions of the coordinated object. The derivational mechanism always treats a conjunction the same way - it creates a set of the conjuncts; and what eventually happens to this set is determined by what possibilities exist at the time the conjunction goes to combine with an adjacent object.

Whew. Any questions?

Author : Uri

Vagueness vs. Ambiguity
Prof. Solum discusses vagueness vs. ambiguity, and the relationship between this distinction and the interpretation/construction decision, here.

I would characterize the difference in terms of linguistic architecture, as follows:

Ambiguity is what occurs when the sound or textual output matches more than one possible linguistic expression, where a linguistic expression includes a sound output, a meaning output, and the procedure that generates the pair of outputs. Ambiguity is the result of the fact that sounds and meanings do not perfectly correspond to one another.

Vagueness is what occurs when the meaning output of a linguistic expression, or a part thereof, corresponds to a concept (in our case, a legal concept) without clear boundaries. Vagueness is the result of the fact that our conceptual system is incomplete, so that it is not always known whether a certain object, for example, falls in a particular category. It is a necessary result in light of the fact that our conceptual system is discrete, while the world that it represents is often continuous.

The role of the interpreter/constructor in the case of an ambiguity is to select the appropriate meaning output in light of the sound output, using evidence such as the context in which the expression was generated, the likelihood that the meaning output was the one intended by the person or group articulating the linguistic expression, and the naturalness of the sound-meaning correspondence (a particular meaning can be possible but improbable, for example, if it presents great difficulty in linguistic processing).

The role of the interpreter/constructor in the case of vagueness is to modify the conceptual legal scheme so that it optimally covers the case at hand.

[edited for typos 1/17/2009]
Author : Uri

Eat \'em up
Not law-related but diplomacy-related. Reuters reports that France's Foreign Minister Bernard Kouchner, speaking in English, caused a bit of a row when he was understood to say to an Israeli interviewer, "I honestly don't believe that it will give any immunity to Iran ... because you will eat them before."

He later explained that he was not contemplating Israeli consumption of Iran, only an illegal aerial bombing. Apparently he had meant to say "hit", but what came out, because French phonology has a highly ranked constraint against initial [h], and lacks the lax high front unrounded vowel that English uses in the word "hit", sounded like "eat."

The ministry clarified that Kouchner "regrets the unfortunate misunderstanding this phonetic confusion has caused." The confusion was of course phonological, not phonetic.

In a possible world consistent with consistency in behavior from major propaganda agencies, we will soon witness a propaganda offensive from the MEMRI hole, saying France calls for Iran to be wiped off the map.
Author : Uri

Status update
I'm in a little over my head at law school, but I am making forward progress on my Second Amendment note. So I'll post a little bit about that.

It looks like my focus will be on one particular controversy in the DC v. Heller opinion, concerning the phrase "the right of the people to keep and bear arms". Namely, the issue of whether the fact that it's not "to keep and to bear arms" makes a meaningful difference. This is in the context of a dispute over whether the clause contemplates a single right or two.

Justice Stevens argues that the absence of "to" suggests a single right. Scalia dismisses this position as bizarre, arguing that nobody has proposed a rule that the absence of "to" in such a situation makes a difference to the meaning, and using a sentence with the noun "promise" to show that the presence or absence of "to" in such contexts makes no difference.

My paper, as I currently conceive it, takes the position that Scalia's argumentation is poor, and that the absence of "to" is in fact probative of a difference in meaning. I argue that it's not the semantics of the word "to" that makes a difference, but the syntactic structure required to accommodate the "to". And I explore the different semantics of "promise" and "right", suggesting an explanation for why the different syntactic structures end up with the same semantics in the case of "promise" but different ones in the case of "right". (I think it's the quantificational force of the modality: universal in the case of "promise", existential in the case of "right".)

[edited for typos 1/17/2009]
Author : Uri

Update
I'm back at Case Law School for one more year. It looks like it's going to be a rough semester: I'm taking three substantive classes, the health law clinic, a bar review course and a supervised research project. The latter will be a linguistic analysis of the Second Amendment. I'm also searching for a job after graduation and taking the Multistate Professional Responsibility Exam in November. In between, I'm staying involved in the National Lawyers Guild, and working with a couple of friends to form a nonprofit to educate and advocate for greater accessibility to higher education.

I'm still hoping to post here, but it will probably not be too frequently.
Author : Uri

A paper I wish I\'d written
Shai Cohen brought this law review article to my attention. It's got so many things you want to see in a law article: linguistics, employment discrimination, eight-way ambiguities, upbraiding of judges for being insufficiently attentive to the nuances of language... well, it would have had upbraiding had I written it. Evidently the article's author, Jill C. Anderson, is less petty and more generous toward judges than I.

If I may brag, in my grad school days I wrote a paper in which I argued that the domain of events is, like the domain of entities is sometimes taken to be, divided along an individual/group axis as well as a singular/plural axis, with the upshot that sentences like Adin hit three boys five times is something like 13-ways ambiguous [aside to semanticists: I used a Landmanian analysis and took the theta-role functions to apply to group events, identifying individual events as the phases found in the literature on pluractionality]. I also managed to get an audience of linguists to see each of the thirteen or so distinct meanings. So: my contrived sentence is more ways ambiguous than Congress's carefully crafted one. Nyah!
Author : Uri

Is Prop 8 language negative? Maybe not, but it\'s downward-entailing
The media is reporting on a California judge's dismissal of a lawsuit brought by an anti-gay group to change the wording in the summary of Proposition 8, a proposal to amend the state constitution to ban gay marriage. Roger Shuy covers it in the Language Log, here.

According to news reports, the lawsuit alleged that the summary, which reads "Eliminates the Right of Same-Sex Couples to Marry," "was argumentative, misleading and prejudicial," because eliminates is "a negative, active transitive word - grammar that had rarely, if ever, been used in a state ballot title." The plaintiffs preferred the old title, "Limit on Marriage," which was changed by Attorney General Jerry Brown after the Supreme Court held in May that same-sex couples could marry.

California Superior Court Judge Timothy M. Frawley's dismissed the challenge, saying that "[p]etitioner has failed to explain why the term 'eliminates' is inherently argumentative, while the term 'limit' is not."

One can argue about the inherent argumentativity, misleadingness or prejudiciality of the choices of language. But in at least one important sense, the anti-gay crowd is right that eliminate is more negative than limit. That's because eliminate, unlike limit, is downward-entailing in its complement, which, as shown in Bill Ladusaw's brilliant dissertation, correlates with the licensing of negative polarity items.

Here's an explanation for the uninitiated. It was noticed that certain words, like ever, are licensed in negative contexts, in the sense that they can exist in negative contexts but not the corresponding affirmative contexts. For example:

Nobody ever told me there'd be days like these
*Somebody ever told me there'd be days like these
Yochanan didn't ever tell me there'd be days like these
*Yochanan ever told me there'd be days like these
(Following convention, the asterisk indicates ungrammaticality.)

This led words like ever to become known as "negative polarity items" or NPIs for short. But many other words license NPIs without being logical negators.

Yeshaayahu denied that he ever smoked pot.
*Yeshaayahu affirmed that he ever smoked pot.

Few people ever walked on the moon.
*Many people ever walked on the moon.

Shmuel supported gay marriage before he ever found out his son was gay.
*Shmuel supported gay marriage after he ever found out his son was gay.

Everyone who's ever lived in California knows it's a crazy place.
*Someone who's ever lived in California knows it's a crazy place.


Some of these licensing words seem negative and can be rephrased using negatives, or else broken down into component parts that include negatives. Deny can be recast as say that not, and few can be restated as not many. But this is not true of all NPI licensers. Before is not the same as not after (because neither covers contemporaneous events) and every doesn't mean not some. Moreover, in neither of these pairs is one member of the pair more intuitively negative than the other.

What Ladusaw showed was that the concept of downward entailingness was a better predictor of the ability to license NPIs than the concept of negativity. A context is downward-entailing if and only if in that context, replacing a set with its proper subset preserves the truth of the sentence. For example:

Yisroel didn't eat fruit -->
Yisroel didn't eat bananas


Bananas is a proper subset of fruit. These sentences exemplify the fact that the scope of negation is a downward-entailing context. If the first sentence is true, the second one is necessarily true as well. The following sentences show that this property is shared by deny, few, before and the first argument of every.

Dafna denied eating fruit -->
Dafna denied eating bananas
(on one reading of the sentence)

Few people ate fruit -->
Few people ate bananas

Ofer says a bracha before eating fruit -->
Ofer says a bracha before eating bananas

Everyone who eats fruit is gay -->
Everyone who eats bananas is gay

These entailments do not hold of the counterparts of these words.

John ate fruit --/-->
John ate bananas

Dafna affirmed eating fruit --/-->
Dafna affirmed eating bananas
(on any reading of the sentence)

Many people ate fruit --/-->
Many people ate bananas

Ofer says a bracha after eating fruit --/-->
Ofer says a bracha after eating bananas

Someone who eats fruit is gay --/-->
Someone who eats bananas is gay

Now, back to the proposition. Eliminate is a downward-entailing word, and licenses ever.

Ryvka eliminated fruit from her diet so as not to appear to be homosexual -->
Ryvka eliminated bananas from her diet so as not to appear to be homosexual

Ryvka eliminated the situations in which she ever had to feel guilty.

Limited is not downward entailing, and doesn't license ever.

Ora limited the fruit in her diet so as to appear less homosexual --/-->
Ora limited the bananas in her diet so as to appear less homosexual

*Ora limited the situations in which she ever had to feel guilty.

These judgments are somewhat subtle, but I think they're correct; or if not correct, at least onto something.
Author : Uri

Solum on defining "strict construction" and "judicial activism"
Prof. Solum's Legal Theory Lexicon here attempts to debunk, rather than define, the terms "strict construction" and "judicial activism", which he does by showing that straightforward attempts to define the terms fail for one reason or another.

He concludes that "'strict construction' and 'judicial activism' are simply not very useful as theory terms for academic constitutional lawyers." He fails, however, to explain why their use is so widespread. The obvious answer seems to be that they are useful terms of propaganda. It's much easier to rail against judicial activists and offer strict constructionist judges as an alternative if you don't have to state your objections or proposed alternatives with any clarity or specificity.
Author : Uri

Contradictionary: "inequality" vs. "class"
[Update: I've been working on a linguistic analysis of the Second Amendment and DC v. Heller, and plan to post about it. But I've gotten pretty distracted by the definition of "natural born citizen" in the Constitution and the issue of whether John McCain falls under it (the answer is no). I will post about that too. For now, here's a brief note about political discourse. - Uri]

In his book "A No-Nonsense Guide to Class, Caste and Hierarchies," Jeremy Seabrook makes an important point about the discourse of inequality and class. Seabrook points out that "inequality" is a depoliticizing term, compared with terms of class.

"Inequality" is like sentences with passive verbs. It de-agentivizes. If you point out that a society has high levels of inequality, people think it's a problem, but the term doesn't point the way to any particular solution of the problem. "Inequality" fits in nicely with a mystical view of economics in which economic facts are not ultimately attributable to human actions but instead to a "market".

In contrast, "class" makes things much clearer. It suggests that society is divided or partitioned into groups of people with different roles, realities and interests, and suggests some facts that "inequality" suppresses: that the different interests puts the groups at odds with each other and that the different roles give the groups different levels of capacity to change government, society and the economy so that they are more in line with the class's interests.

How we conceptualize inequality and class affects the kinds of solutions we seek. If the problem is inequality, unfortunately caused by the mystical operations of the market, then the solution is accepting it and trying to ameliorate it. If the problem is that an economic class or coalition of classes is waging class war against the rest and winning, then the solution is either for the other classes to fight back, or to reach some sort of class peace agreement.

Inequality talk is pervasive. Even the SEIU's videos that I've watched has leaders speaking about the problem of inequality, and if a union isn't engaging in class talk, then who is? Yet it seems to me that class is a much more accurate concept for describing how society actually works. Let's ditch the inequality talk.
Author : Uri

Beware of the Linguistic Canons While Driving
In particular, Expressio Unius. Brian Polis sent me this message:

A traffic sign saying "no right turn on red."

Does that mean you can turn left on red (because it said not to make right turns, not mentioning lefts), you can go straight or turn left on red (because those are the two excluded intersection options), you can turn right when it's not red (correct interpretation), or turn right on non-red combined with one of the first two.

The canon's application is remarkably ambiguous (and useless) in the situation, as only dumb luck or an appeal to something else will give the correct interpretation.


Author : Uri

Don\'t Amend for Uri
I was born in Montreal, Quebec to a Hungarian/Swedish/Canadian dad and a Czech/Israeli/Canadian mom. Before today I thought that disqualified me from ever becoming president of the U.S., barring a constitutional amendment. But some of the discussion around John McCain's eligibility for the office casts doubt on my assumption.

Like me, you see, John McCain was not a U.S. citizen at birth. This paper by Gabriel Chin - Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship - argues that McCain is ineligible, and explains why he was not born a citizen (contra, apparently, remarks that the author made to a reporter a few months ago).

McCain was born in the Panama Canal zone in 1936. Chin explains that the zone was not incorporated into the U.S. as a territory, but was subject to U.S. jurisdiction. The fact that it was not an incorporated territory meant that people born there, unlike in U.S. states or incorporated territories like Puerto Rico, were not automatically granted citizenship based on place of birth.

A law which took effect in 1934 conferred citizenship on ?[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States.? McCain's parents were U.S. citizens, but the Canal Zone was not outside of the jurisdiction of the United States, since the U.S. exercised sovereignty over it. Hence the 100 yards in the paper's title; had McCain's mother given birth 100 yards away in Panamanian territory, McCain would have been a citizen under this law.

Congress fixed the law in 1937 - 11 months after McCain came along - so that children born to U.S. citizens in the Canal Zone would be born citizens. It applied retroactively, conferring citizenship on McCain and many others like him.

So McCain was not born a U.S. citizen, but he is a U.S. citizen by virtue of the circumstances of his birth. Here's the issue: is he a "natural born citizen" in the meaning of Article II of the Constitution, which requires the president to be a natural born citizen?

Prof. Solum comments that legal history leaves it unclear which of the following two readings is appropriate.

(1) The at-birth reading. One interpretation of the clause is that "natural born citizens" are persons who citizenship existed at the moment of birth. If we assume Chin is correct re the minning of Section 1993, then the at-birth reading implies that McCain is not a natural born citizen.

(2) The by-birth reading. There is, however, another possible interpretation or construction of the clause: the clause might mean that "natural born citizens" are persons who are citizens by virtue of circumstances of their birth. McCain is a citizen by virtue of the fact that he was born to American citizens in the Panama Canal Zone, and hence, he is an American citizen by virtue of the circumstances of his birth.


If the second reading is correct, then my dream of becoming president is alive. It would not require a constitutional amendment. It could simply be done by getting Congress to pass a law conferring citizenship retroactively on all people born in Jewish General Hospital in Montreal on the evening of Sept. 24, 1975. Arnold Schwarzenegger could be president if congress grants citizenship to all people born in Thal, Austria on July 30, 1947. That's one reason to think the second reading is not the right one - it allows Congress to circumvent a constitutional restriction and "opt-in" any candidate it chooses to, using a highly selective conferral of citizenship based on birth.

Another reason to adopt the first reading is a little more linguistic. Natural clearly has a special meaning in this context. The term seems to cover exactly the set of U.S. citizens. U.S. citizens who were not born U.S. citizens were naturalized - they underwent a change of status from not being natural in the special sense, to being natural. So the most straightforward way to understand natural born citizen is as the set of citizens that were not naturalized, i.e. the set of citizens who were born citizens. Natural-born makes up a linguistic unit just like high-born does. It makes for a parsimonious partition in the set of U.S. citizens.


mmm... persimmony


Unfortunately for parsimony, but fortunately for me, McCain and Arnie, these terms have not been interpreted in this straightforward way. Chin cites Jill A. Pryor for the proposition that individuals who are born U.S. citizens pursuant to congressional authority, such as those born to U.S. citizen parents outside the U.S., are legally considered to be both naturalized citizens and natural-born citizens. Still, one would think that a textualist who prefers parsimony over judicial precedent for interpretation - like, say, Justice Scalia in Heller - would favor a good linguistic analysis in his interpretation of the text, no?
Author : Uri

wikis
I'm adding Glottopedia - a linguistics sort-of-wiki - to the links bar. I qualify with sort-of because Glottopedia has a couple of features that distinguish it from canonical wikis: first, not everyone can edit it - you need to have a good linguistics background; and second, it doesn't aim at total accessibility to the lay reader.

It's pretty embryonic right now, but it looks like it would be a good reference for people starting research on a topic. For example, I stumbled upon it while looking for resources on the semantics of infinitives in English, and the page on infinitive verbs looks like it will be helpful.

Surprisingly, I was unable to find a general law wiki when I searched for one.
Author : Uri

Textualism exposited
In the Legal Theory Lexicon, here.

I've blogged here about why I think "the plain meaning of the text" is incoherent from a perspective informed by knowledge of language and linguistics. Solum's explanation gets around the incoherence by explaining that the "plain meaning of the text" is usually understood not literally as the plain meaning of the text, but rather as "the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.)."

I think textualists often, but do not always, understand "the plain meaning of the text" this way or similarly, either in terms of "regular folks" or the reasonable reader. That's a topic for another post. For now I will just note the following problem: a reasonable reader or regular person would likely, in a case that is hard to decide for any reason, conclude that the meaning is not straightforward, and that something more is needed to interpret the statute, whether it's evidence of the drafter's intent or a canon of interpretation. And this undermines the purpose of textualism, which is to reduce or eliminate reliance on such sources of evidence.
Author : Uri

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.
Author : Uri