Unused and Probably Unusable

Okay, not the whole thing.

A tip of the metaphorical hat to Howard at How Appealing for the link to the news story:

Part of Supreme Court Facade Collapses. That AP brief states in full,

Part of the marble facade on the front of the Supreme Court collapsed Monday morning, falling onto the steps leading into the venerable building. No injuries were reported.

Nevertheless, despite the minor nature of the event, I felt this cried out - yea, demanded - some blogtime.

I pictured something more catastrophic - something more like this picture from a news story about 9/11.

I thought back to the near-bonking of Justice O'Connor at the ceremonial opening of Philadelphia's National Constitution Center.

I wondered, how are we going to go on Doing Justice with the beautiful face of One First Street, N.E. in ruins? That majestic work by Cass Gilbert cast down in pieces?

Then I realized: it was just a metaphor.

Probably all that happened is the Federalism Revolution was shown to be a joke - "just kidding!" winked the genial Justices, as they went about scrubbing that amusing but unsightly and ultimately nonserious error from the face of contemporary jurisprudence.

Then I read it, and realized it was just an overblown minor news story.

update: Lyle Denniston at SCOTUSblog is, like, ALL over this story:

The Court is NOT falling down

The post is notable for containing a) actual facts about the incident (9:30 a.m.), b) context (before the Court had taken the bench), and c) architectural information (the piece came from the dentil molding on the West Pediment, which represents Liberty Enthroned).

Nice. And the post manages to clear up and dismiss those baseless allegations that the Supreme Court had collapsed into a pile of rubble. Assuming you'd seen any.

further update: Howard covers the non-story quite nicely.

See also: a Washington Post article describing some of the snarky symbolic interpretations. Things like, "It came from the right side!" "It damaged 'Authority'!" And one naughty person took a piece home. Read the whole thing.

Since I know I *never* commit typos, grammatical errors, solecisms, malapropisms, blatant errors of composition resulting in reversal of intended meaning, or any other sort of language production errors, it delights me no end to pick on others who do. Or more precisely, since I seldom feel comfortable broadcasting my superiority (indeed, invincibility... okay, maybe pseudonymous blogging is going to my head...), I delight when others do the correcting.

So, for example, I like the eggcorn database, where totally comprehensible, somewhat justifiable, and wildly silly reinterpretations (such as "eggcorn" for "acorn" are caught, categorized, tagged and released into the wild. It's like looking at everyone's meta-spellcheck.

I also try not to go overboard making corrections in others' comment spaces. If you blog on something of interest, that's the value; the added value of being corrected (you meant Theirs, not Theres) is minimal. Was your meaning clear? Was the context casual? Was your audience offended? The (usually) obvious answers lead to the conclusion that some typos are okay, and don't detract from the project.

Nevertheless, I found a typo I like, at Chateau D'If, by the blogger dantes (a lawyer in York, PA): The Robe is Off (one in the many, many - many! - posts collected by Howard Bashman about the reaction and backlash to the revelation of the identity of Article III Groupie).

In that post, dantes writes

At any rate, I hope the best for David Lat. I think his unmasking is going to be problematic -- his colleagues and, more significantly, his audience on the 3d Circuit, now know his alterior identity. Here's hoping it's not.

What's the interest? Alterior, a blending of ulterior (as in motive) and alternate. A simple slip of the mind or hand, but also a neat recombination. Was it intentional? Who cares? Like any great work of art, it is its own justification.

Have you got any favorite reinterpretations (eggcorns) or invented words? Bonus points for legal "words."

I see from a Reuters article (Italy prosecutors seek extradition of CIA agents) that there is trouble brewing over what I can only describe as allegations of

the forcible kidnapping by Americans of an Egyptian-born terrorism suspect from Italy, the removal of the same to Egypt, and the interrogation under torture of that same gentleman

Now, this may not come as a surprise to any who were attending to the news in the last year, as reports about "extraordinary rendition" came bubbling to the surface. We were apparently bypassing the difficult obstacle that torture is illegal, and the problem of sullying our hands by enlisting foreign police and military interrogators to do our dirty work. Kidnapping would necessarily be involved.

This story, however, points up an issue that I had not considered. Where are these victims, these alleged bad persons? Were they in international airspace? In the U.S.? Some of them, sometimes. But generally they are somewhere, within a country, when we grab them and send them off to be, uh, questioned.

Kidnapping is apparently something that we "do." Are we okay with that? Do we deny that we do it? Is it in line with our highest standards? Is it necessary?

An aside on torture itself:

In the process of losing our souls, what else are we doing wrong?

Well, kidnapping. Big issue. We did it in Mexico, and got away with it once - sort of. See the fascinating and horrifying case of Humberto Alvarez-Machain, who was kidnapped from Mexico by order of the DEA, in order to stand trial in the U.S. A transnational conspiracy to do what could not be done legally? Apparently that was not a problem as far as preventing his legal prosecution in this country, on charges that were admittedly very serious, involving a DEA agent who was tortured and murdered. But after his acquittal on the charges for which he was brought to stand trial under, he sued under the Alien Tort Claims Act of 1789. Paul Hoffman, lead counsel for Alvarez, provides this interesting summary of the legal issues underlying the claim in the case and in related ones.

Is it okay to kidnap the citizens of one country in order to force them to stand trial in another? I always thought we had other mechanisms for that sort of thing. Extradition, where there is bilateral agreement. Victory in war, when war crimes are at issue. Not, you know, kidnapping. That's more of a tactic used by, I would have conjectured, rebels, militants, criminals, and of course terrorists. And it's not the sort of thing any country likes to see.

Comparison: how would the U.S. feel if legal American residents were kidnapped out of the country to stand trial on charges that are either not crimes here (speaking negatively about the ruling party of, say, Myanmar or China or North Korea or...) or are likely to be punished far more harshly, or the trial will lack important legal protections?

Wouldn't we consider that a major affront to our sovereignty, indeed our geographical integrity? How dare they, we might say.

When we pursue the Drug War, or the Terror War, into other countries, we are apparently not always very concerned with the rights and interests of those countries.

Those who give succor to our enemies, Bush warned and as I might agree to a limited extent, are against us as well. But who are the enemies? Do we even know? The folks we kidnap off a city street are not the ones making announcements about how evil we are. What about trials? What about the truth? And is Italy an enemy state giving material support and cover to terrorism, like Afghanistan under the Taliban?

How far is too far?

Ultimate answers, as always, may be a long time in coming.

Since I'm not aware of any Carnival of the Linguists... not that one would need one, since the folks at Language Log are so good at linking to other folks...

Some law-related language and linguistics stuff.

Benjamin Zimmer references eminent legal thinker Chico Marx in the title ("There Ain't No Sanity Clause") of his interesting post on the so-called "liberty clause" of the Constitution - a clause with possibly magical properties, in my view. As Ben points out,

This is, on the face of it, further proof of the cultural divide between legal studies and linguistic studies. A syntactician might think a "one-word clause" in English would need to be an unmodified imperative intransitive verb like "Surrender!" (See Geoffrey Pullum's post on very short sentences.) But of course, the definition of clause in the world of law has nothing to do with syntactic structures. The legal sense, meaning "a distinct article, stipulation, or proviso in a legal document," has a long history in English. (The Oxford English Dictionary offers a quote from Chaucer's Troylus And Criseyde: "He shall me never binde in soche a clause.") Still, could the "liberty clause" really consist of a single word?

The definitive answer: maybe. Check out the post for further updates, including references to Dred Scott, confusion over which part of the Constitution is even involved (14th Amendment? 5th? All of the above?)

There's also a neat post, also at Language Log, about how strange it is to claim that "Scalito" is a diminutive of Scalia - since it isn't, and never was, even though the person who coined the phrase (a journalist) says it is.

Finally in LL matters, there's the amusing situation of artless and, in my view, moronic drafting resulting in a highly ironic result. A statute, clear in intention, designed to protect marriage from incursion, seems to outlaw marriage. Read about how Texas flubs elementary logic in the post Is Marriage Similar or Identical to Itself by Mark Liberman.

I am also moved - almost to tears - by a plaint from Death, a pseudonymous law student (hat tip to Mike at Crime & Federalism). Death (blog name: Death in the Afternoon) mourns the tendency of good writing to disappear under the influence of Law.

Legalizations - meaning specifically the bad language I dub Law-ese - will be reinserted. "The active voice will be trampled and beat back into its passive state. You will no longer use anything, certain objects will be utilized. The court will not find any statute to violate the Constitution, the statute will be held to be unconstitutional by the Court." Death is tilting at windmills, I am afraid. Bad writing is something individual can overcome. There is little to be done, however, about pervasive poor writing - as there is little to be done about pervasive poor thinking.

What we can do is make efforts (where appropriate) to rise above the worst tendencies of lawyers. Take a look in the mirror. Do you abuse jargon? Do you use unwieldy and meaningless phrases because you don't want to be clear and concise? Do you ever use long lists of near-synonyms in order to plug possible loopholes in discovery requests? Do you take refuge in obfuscation?

I was particularly amused by the comment from Evan that Death should relax - partners seldom have time to do a really thorough job of editing your work anyway. A grim hope to hang onto.

In fact, partners (or more-experienced lawyers) may know exactly what they are doing when they beat all the style and rhythm and creativity out of writing. That's because some writing is more than just an amusement. It serves legal purposes - it requests admissions, it crafts demands, it parries, it may even have the force of law, if adopted by a court. In such situations, a young enthusiast's eagerness to inject flavor can do unwitting harm.

I wonder how many junior associates have decided that the memo at hand would be ever so much cleaner if those annoying stock phrases were taken out and replaced with something neat and in plain English... only to be later told that the stock phrase was required, and they'd better revert all their changes, and not get any more bright ideas.

More law-related language and linguistics posts and news as I come across them.

I wanted to point out a small issue in a big case: Small violations of a court's rules can cut both ways. Annoying the judge, or giving your opponent any reason to call you out as a hypocrite, can leave a litigator open - even when it's not fair.

In other words, sauce for the goose can be a bitter pill to swallow.

Without putting myself in the middle of the vast Vioxx debate that has raged at Evan Schaeffer's Legal Underground, Overlawyered, and other blawgs throughout the land since well before Mark Lanier's huge victory in a Texas courtroom earlier this year brought it before the public's eye... perhaps, to continue my theme of poorly mixed metaphors, I should say without opening an entirely different can of fish...

Let's look at an excerpt from a news report on the closing arguments out of New Jersey, where thousands of pending cases before Judge Carol Higbee await the outcome of the first case, which I am guessing is captioned Humeston v. Merck. (Ed.: Yes, that sounds right; see Point of Law, which points out this weblog).

After Seeger has spoken for about an hour, Merck's lead lawyer took the unusual step of objecting, prompting Higbee to send the jurors from the room. Sullivan complained the Seeger had mentioned Merck's failure to call a witness to talk about the Food and Drug Administration's conclusions. But Higbee overruled the objection, saying she had allowed Seeger leeway after Sullivan broke rules in her closing arguments.

What happened here?

It looks like the plaintiff's lawyer, Mr. Christopher Seeger, made an objectionable argument. Usually a party does not make objections during closing arguments - but then, usually both sides play fair. That is, when evidence has been ruled inadmissible, it isn't discussed. Here, the defense counsel took the unusual step of objecting, possibly because they felt that the harm of allowing the jury to further listen to argument on this evidence outweighed any potential harm from raising an objection during a closing. As it turned out, the objection was overruled.

Why?

Because the defense, too, had made a mistake of some kind. Deliberately or not, they had given the judge a reason to rule against them. What's the lesson to take home?

If you can put on your case without angering the judge, try to do that. The judge is in a position to make many, many discretionary judgment calls, and the more you can create a coherent theme - your side, your client is on the side of the angels, and the law and Justice are on your side; meanwhile, the other side, and their attorneys, are in the wrong - that persuades the judge to make (non-reversible) decisions in your favor, the better.

[update: As today's news shows, Merck seems to have survived its New Jersey trial just fine. This early news story seems to indicate that the media, as usual searching for "the reason" for a verdict one way rather than another, may be trying out the "He bored the jurors with lengthy discussions of science" storyline. Since I doubt that the jurors have been interviewed in detail yet, and I doubt that their hypothetical answers have been compared by knowledgeable folks to those the jurors in Texas gave or would have given, this is all a guessing game.

A reminder to both plaintiffs and defense counsel in cases involving scientific proof: if you can't prove by a preponderance or rebut the other side's case, depending on your burden, having "scientific truth" on your side is a nonsense proposition. You must show that your scientific story is compelling, true, and coherent, and that the other side's is not. Or at least not as much. That means your witnesses matter, and their demeanor matters, and your mastery and ability to convey the science matters. If you can't deal with those things, you'll lose.]