The Language of Judges
9780226767918
9780226767895
The Language of Judges
Since many legal disputes are battles over the meaning of a statute, contract, testimony, or the Constitution, judges must interpret language in order to decide why one proposed meaning overrides another. And in making their decisions about meaning appear authoritative and fair, judges often write about the nature of linguistic interpretation. In the first book to examine the linguistic analysis of law, Lawrence M. Solan shows that judges sometimes inaccurately portray the way we use language, creating inconsistencies in their decisions and threatening the fairness of the judicial system.
Solan uses a wealth of examples to illustrate the way linguistics enters the process of judicial decision making: a death penalty case that the Supreme Court decided by analyzing the use of adjectives in a jury instruction; criminal cases whose outcomes depend on the Supreme Court’s analysis of the relationship between adverbs and prepositional phrases; and cases focused on the meaning of certain words in the Constitution. Solan finds that judges often describe our use of language poorly because there is no clear relationship between the principles of linguistics and the jurisprudential goals that the judge wishes to promote.
A major contribution to the growing interdisciplinary scholarship on law and its social and cultural context, Solan’s lucid, engaging book is equally accessible to linguists, lawyers, philosophers, anthropologists, literary theorists, and political scientists.
Solan uses a wealth of examples to illustrate the way linguistics enters the process of judicial decision making: a death penalty case that the Supreme Court decided by analyzing the use of adjectives in a jury instruction; criminal cases whose outcomes depend on the Supreme Court’s analysis of the relationship between adverbs and prepositional phrases; and cases focused on the meaning of certain words in the Constitution. Solan finds that judges often describe our use of language poorly because there is no clear relationship between the principles of linguistics and the jurisprudential goals that the judge wishes to promote.
A major contribution to the growing interdisciplinary scholarship on law and its social and cultural context, Solan’s lucid, engaging book is equally accessible to linguists, lawyers, philosophers, anthropologists, literary theorists, and political scientists.
225 pages | 6 x 9 | © 1993
Chicago Series in Law and Society
Language and Linguistics: Language and Law
Law and Legal Studies: Law and Society
Table of Contents
Preface
Introduction: Judging Language
1. Chomsky and Cardozo: Linguistics and the Law
Cardozo’s Hope: Keeping the Law Flexible
Chomsky and the Nature of Linguistic Knowledge
Chomsky, Cardozo, and Mrs. Palsgraf
2. The Judge as Linguist
The Last Antecedent Rule
Mrs. Anderson’s Case
Processing Strategies and the Last Antecedent Rule
The Across the Board Rule: Mr. Judge
Drugs and the Last Antecedent Rule
Last Antecedents and Legal Canons
Empty Words: The Interpretation of Pronouns
Mr. Bass
Pronouns and Taxation
The And/Or Rule
Problems of Scope—And Means Or
Support of Delinquent Children—The Problem with And/Or
Mr. Caine—Or Means And
Adjectives and the Linguistics of Capital Punishment
Why Judges Do Not Make Good Linguists
3. Stacking the Deck
The Rule of Lenity
Yermian: Lenity and the Scope of Adverbs
What about Brown?
RICO—Lenity and the Meaning of Words
The Linguistics of Insurance Policies
The Jacober Accident
Ignoring Language—Partridge
Understanding Ambiguous Contracts
4. When the Language Is Clear
How Plain Can Language Be?
The "Plain Language" of RICO
When the Language and Its Opposite Are Both Plain
Understanding Patterns: RICO as an Unclear Statute
Turkette and Russello Revisited: Some More Fuzzy Concepts
When Is Plain Language Enough?
5. Too Much Precision
The Quest for Precision
Pronouns and the Fifth Amendment
Devices to Limit Ambiguity of Reference in Legal Language
Party of the First Part
Replacing Pronouns with Names
Said and Same
Using Special Words
The War against Legal Language
How Much Better Can We Do?
6. Some Problems with Words: Trying to Understand the Constitution
People, Corporations, and Other Creatures
What Is a Corporation
Corporations, the Lexicon, and the Fifth Amendment
Testimony and the Act of Speech
The Current State of the Fifth Amendment
Speech Acts: Linguistics and the Fifth Amendment
Admissions
Admitting by Bleeding
What Is a Search
The Word "Search"
The Fourth Amendment and the Lexicon
Some Easy Cases and Some Hard Ones
7. Why It Hasn’t Gotten Any Better
Anderson and the Status Quo
Expanding Legal Doctrine
Getting Tough
The Language of Judges
Notes
Table of Cases
Index
Introduction: Judging Language
1. Chomsky and Cardozo: Linguistics and the Law
Cardozo’s Hope: Keeping the Law Flexible
Chomsky and the Nature of Linguistic Knowledge
Chomsky, Cardozo, and Mrs. Palsgraf
2. The Judge as Linguist
The Last Antecedent Rule
Mrs. Anderson’s Case
Processing Strategies and the Last Antecedent Rule
The Across the Board Rule: Mr. Judge
Drugs and the Last Antecedent Rule
Last Antecedents and Legal Canons
Empty Words: The Interpretation of Pronouns
Mr. Bass
Pronouns and Taxation
The And/Or Rule
Problems of Scope—And Means Or
Support of Delinquent Children—The Problem with And/Or
Mr. Caine—Or Means And
Adjectives and the Linguistics of Capital Punishment
Why Judges Do Not Make Good Linguists
3. Stacking the Deck
The Rule of Lenity
Yermian: Lenity and the Scope of Adverbs
What about Brown?
RICO—Lenity and the Meaning of Words
The Linguistics of Insurance Policies
The Jacober Accident
Ignoring Language—Partridge
Understanding Ambiguous Contracts
4. When the Language Is Clear
How Plain Can Language Be?
The "Plain Language" of RICO
When the Language and Its Opposite Are Both Plain
Understanding Patterns: RICO as an Unclear Statute
Turkette and Russello Revisited: Some More Fuzzy Concepts
When Is Plain Language Enough?
5. Too Much Precision
The Quest for Precision
Pronouns and the Fifth Amendment
Devices to Limit Ambiguity of Reference in Legal Language
Party of the First Part
Replacing Pronouns with Names
Said and Same
Using Special Words
The War against Legal Language
How Much Better Can We Do?
6. Some Problems with Words: Trying to Understand the Constitution
People, Corporations, and Other Creatures
What Is a Corporation
Corporations, the Lexicon, and the Fifth Amendment
Testimony and the Act of Speech
The Current State of the Fifth Amendment
Speech Acts: Linguistics and the Fifth Amendment
Admissions
Admitting by Bleeding
What Is a Search
The Word "Search"
The Fourth Amendment and the Lexicon
Some Easy Cases and Some Hard Ones
7. Why It Hasn’t Gotten Any Better
Anderson and the Status Quo
Expanding Legal Doctrine
Getting Tough
The Language of Judges
Notes
Table of Cases
Index