Category Archives: Uncategorized

Donald Trump, hoping, and the Third Reich

From Richard Grunberger, The 12-year Reich: A Social History Of Nazi Germany 1933-1945 (1971; Da Capo reprint 1995):

Techniques for promoting Nazi newspapers are best illustrated by Julius Streicher’s own local daily, the Fränkische Tageszeitung, which sent this circular to all readers reluctant to renew their subscriptions:

Your intention expresses a very peculiar attitude towards our paper, which is an official organ of the National Socialist German Workers’ Party, and we hope that you realize this. Our paper certainly deserves the support of every German. We shall continue to forward copies of it to you, and hope that you will not want to expose yourself to unfortunate consequences in the case of cancellation.

(Link)

The semantics of sleeping in railway stations

“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.’

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Legal-ethics complaint against White House lawyers

No linguistics in this post, just law. The post is about a legal-ethics complaint that I’ve filed with the District of Columbia Bar against three lawyers in the Office of White House Counsel, including White House Counsel Don McGahn.

The complaint relates to the episode in March when, two days after the House Intelligence Committee’s public hearing with Jim Comey and Admiral Mike Rogers, Rep. Devin Nunes (chairman of the Committee) held an impromptu press conference at which he breathlessly announced that “he had been shown evidence that ‘on numerous occasions, the Intelligence Community incidentally collected information about U.S. citizens involved in the Trump transition.'” (NYT [watch video]; press release.) Nunes then rushed to the White House to present this information to the president, who said that it “somewhat” vindicated his claim that President Obama had wiretapped him. Nunes was widely seen at the time as carrying water for Trump, and that view was confirmed when it was reported that the information in question had been provided to Nunes by the White House.

It was later reported that two lawyers in the Office of White Counsel had been involved in disclosing the information to Nunes. One of those lawyers, Michael Ellis, had until only a few weeks earlier been the House Intelligence Committee’s general counsel. Ellis is the primary target of the complaint, and the principal allegation against him is that his reported actions violated violated legal ethics that arose because of his previous work the House Committee’s lawyer.

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But I did it, though, because he lied / Because he took you for a ride / And because time was on his side / And because I…

IWantYouBobDylanI filed another amicus brief in the Supreme Court last week that I regard as an example of using linguistics in legal argument. Although the brief contains no discussion of linguistics, it was enabled by the fact that I have learned, to a certain extent, how to think like a linguist.

The case is University of Texas Southwestern Medical Center v. Nassar, and it deals with employment discrimination. The linguistic issue that the brief deals with is the interpretation of prohibitions against discrimination “because of [the employee’s] age” or “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the adverse action? Or is it enough for the plaintiff to prove that the prohibited factor was one of several motivations for the action, any one of which would have been sufficient on its own?

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The Recess Appointments Clause: LAWnLinguistics goes to court

My post on the Recess Appointments Clause was cited in a supplemental letter brief that was filed by the Justice Department in a Recess-Appointments case pending in the U.S. Court of Appeals (page 11, footnote 10).

The letter brief also makes several arguments paralleling what my post said; whether those arguments were taken from the post rather than developed independently, I can’t say. (Though I certainly know what I choose to believe.)

H/t Legal Times Blog via HowAppealing.

Whoa

I’m late in learning about this; it apparently went public  back in May, but doesn’t seem to have attracted much blogospheric notice.

Mark Davis, the proprietor of the Corpus of Contemporary American English (COCA) and the Corpus of Historical American English (COHA), has made another corpus available via the same interface as COCA and COHA. This one’s a little bit bigger though.

155 billion words, 62 billion of them the 1980s-2000s.

Billion with a b.  Bill-yun.

Update: Apparently some of the features of the interface aren’t available yet.

Sherley v. Sebelius: What does “research” mean?

This is the second installment of my look at the recent court of appeals decision in Sherley v. Sebelius, the litigation over federal funding of research on human embryonic stem cells (hESCs). The first installment, which sets the stage, is here. And before I begin, let me repeat that I represent the Genetics Policy Institute as an amicus curiae in support of the government in the case, and that some of what I say here will be adapted from my brief.

I ended my last post by noting that one of the points of disagreement between the majority and the dissent was about whether the word research could be understood to denote a “discrete project.” The majority concluded that the word as used in the Dickey-Wicker Amendment could in fact be understood in that way—an understanding under which the focus is on the specific work for which funding is sought:

NIH funding decisions are forward-looking, requiring the NIH to “determine  whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected….The definition of research is flexible enough to describe either a discrete project or an extended process, but this flexibility only reinforces our conclusion that the text is ambiguous. [paragraph break deleted]

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