The Language of Judges

by Solan, Lawrence M.

• ISBN13: 9780226767918
• ISBN10: 0226767914
• Format: Paperback
• Copyright: 1993-05-15
• Publisher: Univ of Chicago Pr

Summary

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.

Author Biography

Elizabeth A. Kaye specializes in communications as part of her coaching and consulting practice. She has edited Requirements for Certification since the 2000-01 edition.

Table of Contents

Preface	xi
Introduction: Judging Language	1	(9)
Chomsky and Cardozo: Linguistics and the Law	10	(18)
Cardozo's Hope: Keeping the Law Flexible	12	(3)
Chomsky and the Nature of Linguistic Knowledge	15	(7)
Chomsky, Cardozo, and Mrs. Palsgraf	22	(6)
The Judge as Linguist	28	(36)
The Last Antecedent Rule	29	(9)
Mrs. Anderson's Case	29	(2)
Processing Strategies and the Last Antecedent Rule	31	(3)
The Across the Board Rule: Mr. Judge	34	(2)
Drugs and the Last Antecedent Rule	36	(1)
Last Antecedents and Legal Canons	37	(1)
Empty Words: The Interpretation of Pronouns	38	(7)
Mr. Bass	40	(1)
Pronouns and Taxation	41	(4)
The And/Or Rule	45	(10)
Problems of Scope---And Means Or	46	(7)
Support of Delinquent Children---The Problem with And/Or	53	(1)
Mr. Caine---Or Means And	54	(1)
Adjectives and the Linguistics of Capital Punishment	55	(4)
Why Judges Do Not Make Good Linguists	59	(5)
Stacking the Deck	64	(29)
The Rule of Lenity	66	(15)
Yermian: Lenity and the Scope of Adverbs	67	(8)
What about Brown?	75	(2)
RICO---Lenity and the Meaning of Words	77	(4)
The Linguistics of Insurance Policies	81	(6)
The Jacober Accident	81	(4)
Ignoring Language---Partridge	85	(2)
Understanding Ambiguous Contracts	87	(6)
When the Language Is Clear	93	(25)
How Plain Can Language Be?	94	(5)
The ``Plain Language'' of RICO	99	(9)
When the Language and Its Opposite Are Both Plain	99	(5)
Understanding Patterns: RICO as an Unclear Statute	104	(2)
Turkette and Russello Revisited: Some More Fuzzy Concepts	106	(2)
When Is Plain Language Enough?	108	(10)
Too Much Precision	118	(21)
The Quest for Precision	119	(14)
Pronouns, Precision, and the Law	121	(1)
Pronouns and the Fifth Amendment	122	(3)
Devices to Limit Ambiguity of Reference in Legal Language	125	(1)
Party of the First Part	125	(2)
Replacing Pronouns with Names	127	(1)
Said and Same	128	(2)
Using Special Words	130	(3)
The War against Legal Language	133	(4)
How Much Better Can We Do?	137	(2)
Some Problems with Words: Trying to Understand the Constitution	139	(33)
People, Corporations, and Other Creatures	140	(8)
What is a Corporation	140	(3)
Corporations, the Lexicon, and the Fifth Amendment	143	(5)
Testimony and the Act of Speech	148	(15)
The Current State of the Fifth Amendment	149	(5)
Speech Acts: Linguistics and the Fifth Amendment	154	(1)
Admissions	155	(2)
Admitting by Bleeding	157	(6)
What is a Search	163	(7)
The Word ``Search''	164	(2)
The Fourth Amendment and the Lexicon	166	(4)
Some Easy Cases and Some Hard Ones	170	(2)
Why It Hasn't Gotten Any Better	172	(17)
Anderson and the Status Quo	173	(5)
Expanding Legal Doctrine	178	(4)
Getting Tough	182	(3)
The Language of Judges	185	(4)
Notes	189	(22)
Table of Cases	211	(4)
Index	215