Lawrence M. Solan

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 Courts 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, Solans lucid, engaging book is equally accessible to linguists, lawyers, philosophers, anthropologists, literary theorists, and political scientists.

Parameter Setting and the Development of Pronouns and Reflexives

In recent writings and lectures, Chomsky has emphasized a shift in focus occurring in linguistic theory during the 1970s and’80s. While earlier models, such as that set forth in Chomsky (1965), directed their attention at positing and characterizing rule systems, in recent years, linguistic theory has focused more on conditions on representation.

The Language of Statutes: Laws and Their Interpretation

This is chapter 1 of The Language of Statutes: Laws and their Interpretation (University of Chicago Press (2010). The chapter situates debate about statutory interpretation as a battle between those who are concerned that judges, especially common law judges, have too much interpretive discretion, and those who would prefer that judges play a more significant role in the development of the law. At the root of the problem is the extent to which the human language faculty is able to produce rules of law that are at once “minute” and “flexible”, as Cardozo put it. This chapter illustrates communicative breakdowns in statutory language, and discusses their implications. It further outlines the argument of the book, in which legislative intent plays a significant role in interpretation, both empirically and normatively. At the same time, however, competing values - ranging from fair notice to dynamism to formalism - contribute substantially to interpretative decisions. Weighting these values and choosing among them is too subjective to create a theory that will produce consistent results in statutory cases. For the most part, however, judges and others limit themselves to relevant considerations. Fortunately, when proper base rates are taken into account, the set of statutory cases that are likely to produce results that more reflect the personal and political value of the decision maker than a legally-based result are few. Thus, we are left with a system in which a constant flow of uncertainty at the margins is a given, but which generally works well enough to sustain rule of law values.

A Comparison of Null and Pronoun Anaphora in First Language Acquisition

In this paper we report selected results of an experimental study of the acquisition of certain forms of anaphora in first language acquisition of English. The results of this study provide evidence that children who are acquiring English distinguish a phonetically realized pronoun with free anaphora from a null nominal category with bound anaphora in environments such as those shown in 1 and 2. At the same time, however, the data from this study provide evidence that at early language levels children apply general principles to constrain both null and pronoun anaphora similarly in these environments. Specifically (a) children generalize certain grammatical restrictions which hold on free pronoun anaphora as in 1 to hold also on bound null anaphora as in 2; and (b) they fail to observe certain grammatical restrictions which should hold on bound null anaphora as in 2 and not on pronoun anaphora as in 1.

When Does Knowledge Become Intent? Perceiving the Minds of Wrongdoers

In a series of experimental studies, we asked people to assign appropriate civil and/or criminal liability to individuals who cause harm with various culpable states of mind and kinds of knowledge. The studies are principally aimed at two related issues. First, do people actually separate the various states of mind conceptually? How much knowledge, and what kind of knowledge, regarding something that may go wrong (understanding risk) is sufficient to count as knowing that something will go wrong (having knowledge legally equivalent to intent)? Second, to the extent that people distinguish among the states of mind that help define normative behavior, how much do those distinctions contribute to peoples judgments of civil liability? Our studies show that people are able to make explicit distinctions about the states of mind of others that more or less correspond to legally relevant categories. Yet, when asked to assign consequences, their “hot” moral judgments play a larger role than do their “cold” cognitive categorizations.

Legislative style and judicial discretion: The case of guardianship law

The criteria for appointment of a guardian, and the powers that the guardian will be given depend upon how a particular political entity balances respect for the individuals right to autonomy on the one hand, against societys desire to protect those who cannot manage their own affairs, on the other. In recent decades, the balance has tipped from concern about protection to concern about autonomy. This shift, in turn, has resulted in an evolution in the linguistic style of the laws enacted. This article examines many different guardianship statutes from around the United States, demonstrating that subtle linguistic maneuvers in the style of drafting affects the degree of discretion given to decision makers. Using advances in the psychology of concepts and categories, the article demonstrates the descriptive inadequacy of the classical distinction of rules versus standards in legislative drafting, and adds prototype-based laws and laws dependent upon enriched mental models to types of laws that legislators employ. The goal of the article is to build a self-conscious awareness of the tools available to policy-makers in their efforts to hone legislation in this important area of mental health law.

A reevaluation of the basic operations hypothesis

Some recent work in language acquisition has emphasized the importance of linguistic theory to our understanding of the data from child language. In their paper, “Transformations, Basic Operations and Language Acquisition”, Mayer, Erreich and Valian propose that certain data from child language reflects the analysis of syntactic movement rules as a combination of two “basic operations”: copying and deletion. Errors of the type in (1 ),

Does the Legal System Need Experts in English Syntax

The field of language and law is now a rapidly growing one, with more and more published material and conferences. Perhaps it should be surprising that it has taken so long for this to happen since so much of legal decisionmaking involves the analysis of spoken and written language. In substantial part, joint interest in the two fields has become possible as a result of the enormous growth in our understanding of linguistic principles during the past three decades, largely attributable to work in generative grammar.’ This new knowledge has in turn led to an increase in linguists serving as experts in legal cases. In this paper, I wish to address some difficult systemic and ethical issues that arise as by-products of linguists serving as experts, and to explore some cases that may well have been decided differently if syntacticians had been asked to testify.

Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus?

Abstract Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning.” The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis. We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss. We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

“Begin at the beginning”. Lawyers and Linguists Together in Wonderland

What do patterns in legal language tell us about power, policy and justice? This question was at the heart of a conference on “The Fabric of Language and Law: Discovering Patterns through Legal Corpus Linguistics”, convened in March 2016 by the international research group “Computer Assisted Legal Linguistics” (CAL²) under the auspices of the Heidelberg Academy of Sciences. About forty scholars from Germany, Switzerland, Italy, Poland, Spain and the US brought together their different intellectual and disciplinary perspectives on computational linguistics and legal thinking. Concluding the conference, four legal linguistics experts – two native linguists, two native lawyers – discussed the perspectives and limitations of computer-assisted legal linguistics. Their debate, which this article faithfully reproduces, touches on some of the essential epistemological issues of interdisciplinary research and evidence-based policy, and marks the way forward for legal corpus linguistics. Cite as: Vogel et al. , JLL 6 (2017), 90–100, DOI: 10.14762/jll.2017.090