“I really, really like the work in Congress, I really do, but I love my family more. People may try to make it more than that, but it’s really that simple,” Chaffetz said on MSNBC. “I just turned 50. I’m sleeping on a cot in my office.”
Chaffetz On No 2018 Run: ‘I Just Turned 50, I’m Sleeping On A Cot In My Office,’ Talking Points Memo xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx
Everyone familiar with the academic literature on statutory interpretation is aware of the vehicles-in-the-park hypothetical. It was formulated by the legal philosopher H.L.A. Hart to illustrate the argument that the words in which a law is written must have “a core of settled meaning”—a set of standard instance in which no doubts are felt about [the law’s] application”—but will also have “a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.” Harvard law professor Lon Fuller denied the existence of any core area in which the law’s applicability was clear; for Fuller, the law’s applicability turned not on linguistic semantics but on the law’s purpose. Thus, he asked whether, under the hypothesized prohibition against vehicles in the park, “mount[ing] on a pedestal in the park a truck used in World War II…in perfect working order” would fall within the law’s core or its periphery.
Less well known is a separate hypothetical offered by Fuller to support his challenge to Hart. Fuller posits a law making it a misdemeanor “to sleep in any railway station.” He then supposes that two people have been arrested for violating this law; one who dozed off while waiting for a train, and one “who had brought a blanket and pillow to the station and had obviously settled himself down for the night[,]” but who had been arrested before he fell asleep. “Which of these cases,” Fuller asked, presents the ‘standard instance’ of the word ‘sleep’?” And would it be faithful to the law to say that the law had been violated by the second person but not the first?
The hypothetical is thought-provoking because applying what is assumed to be the literal meaning of the law—that what it prohibits is being asleep in a railway station—would yield a conclusion that seems nonsensical: that the law was violated by the dozing passenger but not by the guy who was bedded down but still awake. The hypothetical has been discussed by some very smart legal scholars and philosophers over the years, including Kent Greenawalt, Fred Schauer, John Manning, Scott Soames, and Andrei Marmor, and with few exceptions (mainly Robyn Carston) they have accepted that assumption. Schauer put it as well as anyone: “Sleep is a physiological state, and as a matter of physiology Fuller’s businessman was sleeping. Period.”
But in fact (you can guess where this is going, can’t you?), the assumption’s validity is doubtful at best. It is entirely consistent with actual usage to use sleep in a railway station to mean ‘use a railway station as a place to sleep’ rather than ‘be asleep in a railway station.’
Adam Liptak reports in the New York Times that President Trump will announce a number of nominations to the lower federal courts, and that one of them is Justice Joan L. Larsen of the Michigan Supreme Court, who will be nominated to the United States Court of Appeals for the Sixth Circuit.
That caught my eye, because in June 2016, the Michigan Supreme Court became the first state supreme court in the country to expressly approve the use of corpus linguistics in statutory interpretation. Continue reading
Posted in Corpus linguistics & lexicography, Larsen, Law & corpus linguistics, Law & linguistics, Law review articles, Lee, Rasabout, Self-promotion, Smith, Solan, Solum
On Friday I will be presenting a paper at a conference at Brigham Young University Law School on law and corpus linguistics. Here is the description from the conference website:
Building on the 2016 inaugural Law and Corpus Linguistics Conference, the 2017 BYU Law Review Symposium, “Law & Corpus Linguistics” brings together legal scholars from across various substantive areas of scholarship, prominent corpus linguistics scholars, and judges who have employed corpus linguistics analysis in their decisions.
Although there’s a link on the webpage for the papers that will be presented, they are password-protected. However, my paper is posted on SSRN and can be downloaded there. It is titled Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, and the abstract is below the fold.
The D.C. Circuit’s recent decision regarding the Recess Appointments Clause (Noel Canning v. National Labor Relations Board) bills itself as an exercise in Heller-style textualism: “When interpreting a constitutional provision, we must look at the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).” As a result, much of the decision is devoted linguistic issues.
I’m going to take a look at how the court handled some of those issues—at the conclusion it reached and the reasoning it used to get there.
The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.
Ordinarily, the president’s power to appoint high-level officials is subject to the requirement that his choices be confirmed by the Senate. But because the Senate isn’t always open for business, the Constitution provides that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” One of the questions raised by this provision is what exactly is meant by the phrase the Recess of the Senate. That’s the issue I will discuss in this post.
To put the question into context, here’s some quick background. Every two years, when the most recently-elected members of the House of Representatives start their terms, a new term of Congress begins. Each new term is referred to as a separate Congress; the current Congress is the 113th. Since the Constitution requires Congress to meet at least once a year, each two-year Congress is divided into at least two officially-designated sessions. Currently, the 113th Congress is in its first session.
In between its formally-designated sessions, Congress is in recess. Everyone agrees that these breaks count as “recesses” for purposes of the Recess Appointments Clause. Congress also takes breaks periodically during each officially-designated session. During those breaks, Congress is simultaneously in session and not in session. It is in session because the officially-designated session is still in progress, but it is out of session because it has temporarily stopped conducting business.
The question is whether these breaks within an officially-designated session constitute “recesses” such that the president can exercise his recess-appointment power. According to the D.C. Circuit, the answer is no.
Posted in "recess", "the", Ambiguity, Cases, Constitution, Corpus linguistics & lexicography, Definiteness, Dictionaries, Indeterminacy, Law & corpus linguistics, Law & linguistics, Noel Canning v. NLRB, Recess Appointments Clasue, Semantics, Textualism, Underspecification, Words
Coming soon in the Brigham Young University Law Review: “The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning,” by Stephen Mouritsen.
Mouritsen, who is currently clerking on the Utah Supreme Court, has an MA in linguistics from BYU, with an emphasis on corpus linguistics. He studied under Mark Davies, who compiled the Corpus of Contemporary American English and the Corpus of Historical English. The appearance of his article at a time when blogospheric attention is being paid to the legal uses of corpus analysis (e.g., on at The Atlantic and on Language Log) is a nice bit of serendipity.
Posted in Breyer, Cases, Corpus linguistics & lexicography, Dictionaries, Easterbrook, Ginsburg, Judges and justices, Law & corpus linguistics, Law & linguistics, Law review articles, Muscarello v. United States
The Supreme Court has decided FCC v. AT&T, the most recent case in which I filed an amicus brief, which I wrote about here. The issue in the case is whether corporations are protected by the “personal privacy” exemptions in the Freedom of Information Act, and the Court unanimously ruled that (as my brief had argued) they are not. The decision is available here.
In my unbiased opinion, the opinion was influenced by the brief in several respects.
I didn’t intend for the first substantive post here to be devoted to shameless self-promotion, but it’s not every day that a Supreme Court justice gives you a shout-out during an oral argument.
Posted in "personal", Corpus linguistics & lexicography, FCC v. AT&T, Ginsburg, Law, Law & corpus linguistics, Law & linguistics, Roberts, Self-promotion, Statutory interpretation, Words