Defining definitions

 

Here’s a new article by a law librarian about statutory definitions:

Price, Jeanne Frazier. “Wagging, not barking: statutory definitions,” 60 Cleveland State Law Review 999-1055 (2013).

And here’s its abstract:

 

 

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader’s understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some cases, definition serves predominantly a communicative purpose; it clarifies the speaker’s intent. But at other times the legislative definition empowers; it serves a performative function, investing groups of individuals or instances with rights or obligations. The Article suggests that a better understanding of the effect of definition on a reader’s interaction with a text, coupled with an appreciation of the different roles served by definition, will enable legislators to draft more useful definitions and enable interpreters to better apply those definitions.

 

Books to Help with LLM Student Training

A couple of recent book releases that may be helpful for LLM students:

International Legal English: a practical course book for speakers of English as a second language
Angela Williams
Torino: G. Giappichelli, 2012
ISBN: 9788834898024
http://www.giappichelli.it/Home/978-88-348-9802-4,3489802.asp1

An American Constitutional History Course for Non-American Students
Luis Grau
Madrid: Dykinson, 2012
ISBN:9788490312902
http://www.amazon.com/American-Constitutional-History-Non-American-Students/dp/849031277X

The superhero approach to legal research

We haven’t asked our students to buy a textbook in advanced legal research for a long time.  The existing books are just too darn expensive.  But a new book crossed my desk today that looks particularly useful for teaching legal research; it is:  The Law of Superheroes (catalog record copied below).

This book starts with three pages explaining “Legal Sources and Citations” that explain legal citation about as well as anything I’ve seen.  It also points the reader, presumably the lay reader, to sources of free law:  Google Scholar for legal opinions; Cornell’s LII for the United States Code.  Peter Martin is cited on page xiii, so this tells me the authors know their research!

Throughout the book are wonderful footnotes explaining, in the clearest language possible, different aspects of legal research.  For example, footnote #4 on p. 113:

. . . Restatements of law are scholarly works that attempt to set forth the majority position on particular areas of law or recommended changes to the majority position.  They mostly cover subjects that are still primarily common law rather than those based on legislation. The Restatements are not law themselves, but courts often find them persuasive, and many sections of various Restatements have been adopted as law by state courts.

The section on immigration (is Superman a citizen?) offers a great explanation of private laws:

Private Acts of Congress

There’s another way that someone can become a citizen without going through the immigration process: a “private act” of Congress, i.e., a law targeting a specific person and declaring him or her to be a citizen.[fn 9]  Although unusual today, private acts have a long history in the United States.[fn10]  . . . As a matter of fact, in at least one story, Superman is granted citizenship by every country in the world, presumably by their respective versions of a private act of Congress. . . .

9. . . . These bills are not very common, nor are they usually passed, but it happens.

10.  In fact, for decades after the founding of the country, private acts by state legislatures were the only way for a legitimate 9i.e., non-annullable) marriage to be dissolved.  Similarly, prior to the passage of general incorporation statutes, which create the procedures by which corporations may be chartered with state-level secretaries of state, creating a corporate entity required an act of the state legislature.

The sections on international and interplanetary law are really fun, and explain the very basics of “law” itself:

The important thing to remember about international law . . . is that international law is a matter of custom and practice as much as it is anything else.  This is true of domestic law as well, and is really the reason the common law exists: a “law” is, essentially, a custom or tradition that is enforced by a government.  In the case of common law that tradition is built up by the decisions of the courts. . . .

I may have more to add later, as I’m taking this book home with me for the Thanksgiving break.

Here’s its catalog record:

The law of superheroes / James E. Daily and Ryan M. Davidson.

At the Library:
Crown (Law) > Basement > PN56 .L33 D35 2012

Bookmark: http://searchworks.stanford.edu/catalog/9734665

 

Becoming the “compleat lawyer” the Aldisert way

From time to time I will get a call or e-mail from a proud parent whose son or daughter has been admitted to Stanford Law School.  The parent wants my advice on a book for their accomplished child to read upon the beginning of their new-found career.  A wonderful book has just come along which fits the bill perfectly:  Judge Ruggero Aldisert’s A Judge’s Advice: 50 Years on the Bench.

This slender volume packs a lot of punch.  In less than 250 pages the judge offers answers to questions that have occupied his thoughts for decades:  : “What is the bedrock of our common law system? What are trial and appellate judges really looking for? What is the logical configuration that is absolutely necessary in any legal argument? What practical challenges do judges face when deciding a case? What is the difference between the philosophy of law and a philosophy of law? What is the difference between a judge making a decision and a judge justifying it, and why does that difference matter to me?  Precedent in the law: When do you kiss it and when do you kill it?”

The judge organizes his thoughts among the following five themes:

  • Our Common Law Tradition: Still Alive and Kicking
  • Logic and Law
  • Avoiding Assembly Line Justice?
  • The “Write Stuff”
  • How Judges Decide Cases

And within these themes are found the following chapters:

The house of the law — The role of the courts in contemporary society — Precedent : what it is and what it isn’t, when do we kiss it and when do we kill it? — Elements of legal thinking — Logic for law students : how to think like a lawyer — Formal and informal fallacies — State courts and federalism — Life in the raw in appellate courts — “The seniors” suggest a solution — Brief writing — Opinion writers and law review writers: a community and continuity of approach — Reading and evaluating an appellate opinion — Philosophy, jurisprudence and jurisprudential temperament of federal judges — Making the decision — Justifying the decision.

While I know that all law students would benefit greatly from reading this book, when I first saw it our international students immediately came to mind as no other single volume that I am aware of so neatly and clearly explains the American legal system.  This book explains stare decisis better than anything else available.

Judge Aldisert writes about his particular passion — the law — with an enthusiasm that is almost exhausting.  Through this book the law student can get a glimpse of just how enormously satisfying the next 60 or 70 years of his or her life can be.

As the judge states in his Introduction:  “. . . These pages flesh out the instruments and implements of lawyers with a far-ranging ‘view from above’ with one objective in mind: to enrich the skills of these men and women so that each may bear — to borrow from Izaak Walton’s The Compleat Angler — the noble title of ‘compleat lawyer.’

This book really should be required reading for all law students, lawyers and others too.  Judge Aldisert is one of my heroes, along with others who inspire me such as Roger Ebert, Vin Scully, Tony Bennett and Keiko Fukuda (Google her)  — people who, while they may have stopped buying green bananas, they have not stopped working and never will.  These are people who make no distinction between work and play and who will be carried off the job feet-first.  They know the secret.   People who I want to be like when I grow up.

Full disclosure:  I was first charmed by Judge Aldisert when I met him during my daughter’s clerkship for him.

How to Use Legislative History to Teach Grammar

Anyone teaching the importance of legislative history in legal research need only point to a single punctuation mark: the mighty comma.  As a disclaimer, I strive to put my years of Latin classes to good use, but do not profess to be punctuationally-perfect.  (Interestingly, the Romans did not use modern punctuation, but I digress…)   One thing I do know, however, is that other people’s grammatical shortcomings sure can wreak a lot of havoc… making them a great teaching tool.

This past week, I was researching a state statute that, among many other things, imposed conditions on persons who had committed a “felony or misdemeanor crime of domestic violence.”  At first blush, one would read this to mean that the conditions apply to persons involved in domestic violence felonies and misdemeanors.  Get this:  That provision actually governs anyone who commits either a “felony” or a “misdemeanor crime of domestic violence.”  In other words, we should really be reading a comma into the statute between “felony” and “misdemeanor” where the legislators neglected to put one!

Uncovering the latent comma was not easy.  News articles referred to the imposition of the conditions on felons, but without citing the supporting statutory clause.  Secondary sources referred to conditions emanating from the “domestic violence clause” of the statute, failing to illuminate that the clause also covers all felonies.  Case law cited the statute as creating certain conditions, but decided matters on other grounds.

The best recourse was to trace the historical progression of the clause, which I was able to do through older versions of the statute and the legislators’ own analysis.  Earlier iterations made no reference to domestic violence whatsoever, as the clause originally pertained to persons who had committed any felony.  Years later, the legislature added “or misdemeanor crime of domestic violence,” but failed to demarcate this clause with a comma that would have resolved ambiguity.  If the legislators had simply written “any felony, or misdemeanor crime of domestic violence,” I would have spent fifteen minutes on a project that instead took five hours!  (Note:  I do not require legislators to bold, italicize, or underscore the comma; any font or stylization will do!)

Do you have any grammar-related teachable moments you’d like to share?  We’d love to hear them and pass them along to our classes.  To that end, I particularly enjoyed Prof. Susan J. Hankin’s “Statutory Interpretation in the Age of Grammatical Permissiveness:  An Object Lesson for Teaching Why Grammar Matters,” which references recent literature on the subject and also offers some great case law examples to use in class.

New to the legal lexicon: dissental and concurral

A story in today’s Daily Journal reports on the usage by Chief Judge Alex Kozinski of the 9th Circuit U.S. Court of Appeals of two newly coined (by him) words: dissental and concurral.

According to the story, “Chief Judge coins new words for failed en banc calls – Alex Kozinski coined his own words to describe a common practice,” by John Roemer,

Dissental conflates the words “dissent” and “denial” while concurral combines “concurrence” with “denial.” They are intended to replace the clunkier phrases “dissent from denial of rehearing en banc” or “concurrence in denial of rehearing en banc” used by the court.

The words are used “as shorthand descriptions of judges’ widening practice of delivering often-passionate commentary on failed en banc calls.’

So, have some fun and and search for those terms in CALR databases.

My White Horse Case Book Now in Its 3rd Edition! Happy Day!!

How many times have we seen students spinning their wheels online seeking that illusive “white horse case?”

Don’t know what a white horse case is (I’m showing my age here)?  Then look it up in Garner’s Dictionary of Legal Usage, one of my most favorite reference books.  I love this book and I read it for fun and find many definitions — besides “white horse case” (and this is the only book I’ve found which offers a good definition of the phrase) —  to share with my students, so I was delighted to see that this book is now out in its third edition; from the Oxford University Press Law Newsletter:

Bryan A. Garner reaffirms his position as the foremost expert of legal usage and style with the Third Edition of his Dictionary of Legal Usage. This month, be among the first to own this revamped and expanded new edition with more than 800 new entries.
Garner’s Dictionary of Legal Usage
Third Edition
Bryan A. Garner

This new edition discusses and analyzes modern legal vocabulary and style more thoroughly than any other contemporary reference work.

I can’t wait to start pouring over those 800 new entries.  Talk about poolside summer reading!

New Book – Researching Language and the Law: Textual Features and Translation Issues

Davide Simone Giannoni and Celina Frade’s new book “Researching Language and the Law: contains the following chapters that will be of interest to people studying legal translation and interpretation.

Researching Language and the Law: Textual Features and Translation Issues

Davide Simone Giannoni and Celina Frade

Bern: Perter Lang, 2010

Selected Book Chapters:

English Legal Discourse and the French Continuum

Susan Kermas

“What I argue in this chapter is that the unique language contact situation within the EU has triggered another phase of French influence. My examination of English and French legal documents in the Eur-Lex archive … will demonstate not only that many words have been influenced by French, but, more importantly, that efforts to harmonise legal language within the EU may also be creating a further rift between British and American legal discourse and subsequently, ordinary language.”

Axiological Analysis of Entries in a Spanish Law Dictionary and their English Equivalents

Angel M.  Felices Lago

 

Legal Translation and Interpreting in the UK Today

Francisco Vigier

The UK has two main translator and interpeter organizations, the Institute of Translation and Interpreting  and the Charted Institute of Linguists, which are recognised by the government and committed to promote quality in translation and interpreting services. Nonetheless, a translator or interpreter willing to practise in Britain is not bound to belong to any of them. . .”

 

Legal Interpreting and Translating: A Research Guide

Legal Interpreting and Translating: A Research Guide

Don Ford

FCIL Librarian, University of Iowa

Although the guide is specific to the Iowa Library System, the guide offers a nice bibliography of legal translation titles and a list of glossaries and dictionaries in 20 languages from Europe, Asia ,and Africa. Particularly useful are the links to online legal glosssaries from state courts covering the following languages: Arabic, Armenian, Cantonese, Chinese, German, Hindi, Hmong, Korean, Laotian, Punjabi,Romanian, Russian, Spanish, Urdu and Vietnamese.

http://www.law.uiowa.edu/documents/pathfinders/court_interpreter.pdf