Interesting news and cases
relating to language and law
The following are some interesting tidbits,
mostly from newspapers, that relate to language in the
legal system.
Cyberbullying. Bullying among children has
probably always been been a problem, but it has taken on
epic proportions as a result of the wide availability
and use of social networks, Facebook in
particular. Much of the bullying (disparagement,
insults, threats, etc.) is done by means of language,
especially when it occurs online. It occurs so
often that it has produced a new lexical item:
cyberbullying. While it might sound trivial,
Consumer Reports estimated in 2012 that 800,000 minors
had been bullied on Facebook during 2012 (another
statistic puts the number of victims at 15% of social
media users between the ages of 12 and 17).
Facebook is aware of the problem,
which violates its rules for members ("you will not
bully, intimidate, or harass any user"). If a
member reports bullying, the Hate and Harassment Team
will remove the offending material. But when a
report is made by a third party (parent, teacher,
friend, etc.), Facebook has to decide whether a posting
is indeed a violation of the rules. They use a
device known as the Common Review Tool where a team of
human beings looks over the complaints they receive and
decides whether to allow or expunge the material.
Couldn't someone devise an algorithm
that allows a computer to identify hateful or
threatening language? Some linguists are engaged
in the analysis of the language of threats and suicide
notes, for instance. It turns out that this is a
very complex process, since threats and insults are
often made indirectly, and context and the relationship
between the parties can be very important. The
comment "put on a wig and some lipstick" could be a
hateful remark if made to a boy, especially one thought
to be gay.
As far as I know, there are no
linguists studying the issue (perhaps a missed
opportunity??), but a statistician named Henry Lieberman
at MIT has developed precisely such an algorithm (called
Bullyspace) that claims to identify around 80% of
insults that were flagged as such by human
testers. Maybe linguists could get involved and
improve that percentage. See Emily Bazelon, How
to Stop the Bullies, The Atlantic, March 2013, at
82.
Another example of "misconduct" by a juror (see item
directly below this one) was reported with respect to a
very high profile case in southern California against
Bell city officials, who were alleged to have acted
corruptly in taking very high salaries for very little
work. Following five days of deliberation, one of
the jurors was dismissed for misconduct and replaced by
an alternate. Her misconduct consisted of going to
a legal website to look up jury instructions, and she
asked her daughter to look up the word "coercion."
Judge Kathleen Kennedy remarked that "I've repeatedly,
repeatedly throughout this trial--probably hundreds of
times--cautioned the jury not to do that" (referring to
looking things up on the internet). Corina Knoll
& Jeff Gottlieb,
Bell jurors ordered to begin anew after panelist is
dismissed (March 1, 2013, at AA1). I
should note that Judge Kennedy, according to my
research, continues to use the old CALJIC instructions,
rather than the plain language instructions (known as
Calcrim; see the
jury instruction page of this website.)
So, perhaps it is not so odd that jurors are looking
things up on the internet.
CBS DC reported on January 31, 2013 that the jury that
heard a murder trial against defendant Daniel
Harmon-Wright in Culpepper, Virginia may have committed
misconduct. Following the verdict finding him
guilty of manslaughter, two dictionaries and a thesaurus
were found in the jury room. The jury admitted
that it used these sources to help define the words
"malicious" or "malice." There is a pending motion
for a mistrial. Reported in the National Center
for State Courts Jur-E Bulletin (2-1-2013).
This is actually not very surprising,
since malice (esp. in the phrase malice
aforethought) has a very specific legal
meaning. See the
jury instruction page of this website.
There has been a huge amount of debate among regarding
the meaning of "vehicle," especially with respect to
such implements entering parks. I wrote about this
issue in my article called A
message in a bottle. You could also consult
the articles by Brian Bix or Ralph Poscher in the Oxford
Handbook on Language and Law (and many other
sources!). Now the Supreme Court has ruled on the
meaning of "vessel," and specifically the question of
whether a floating house moored to the shore is a
vessel, making it subject to federal admiralty law (and
not local state regulation). Lower courts had held
that the houseboat in question was a vessel because it
had been towed over the water on occasion. The
Supreme Court of the US, however, held recently that it
was a "home" rather than a vessel. This was a
victory for the owner in this case, because he wanted
the protections that state law affords to homes.
According to the court, to qualify as a vessel, the
object must actually be used for transportation, using a
reasonable observer test. Lozman v. Riviera Beach,
133 S.Ct. 735 (2013).
Congress has recently been replacing what many people
regard as outmoded or pejorative terminology with more
modern equivalents. In 2010 the term mental
retardation was replaced in federal law by intellectual
disability. I generally agree with such
sentiments, but it is worth noting that saying someone
is retarded suggests merely that their development is
relatively slower (more tardy) than that of
others. In 2012 the word lunatic was
likewise banished. This word is in some ways
rather whimsical and euphemistic, suggesting that
someone tends to howl at the moon (Latin luna "moon").
See Richard Simon, Lunatic
Laws are Reworded, Los Angeles Times, Dec. 9,
2012, at A15.
It goes to show that it is not so
much the meaning of a word, but the way that it tends to
be used, that can be problematic. Of course, we
should eliminate any hurtful terminology. Yet if
people's attitudes don't change, it will not be long
before individual with an intellectual disability will
become stigmatized and have to be replaced by yet
another euphemism, it seems to me. The ultimate
hope is that avoiding a stigmatized word will eliminate
the stigma. I'm not so sure.
This specific change also
raises some interesting questions. What will
happen to the insanity defense? In
ordinary language, insane is also an offensive
term. And the same question for insane
delusion in wills law. Maybe we should just
call it the mental defense, or refer to mental
delusions.
Meanwhile, the U.S. Census Bureau has
decided to stop using the word Negro. See
Census Bureau Survey to stop Using "Negro," Los Angeles
Times, February 26, 2012 at A9, which has led to some
interesting discussion.
Although issues relating to language policy and the role
of English seems to have died down somewhat in the U.S.
during the past few years (no doubt, reflecting a
decline in levels of immigration), the issue does come
up now and again. It seems that every year there
is an effort to make English the official language of
the federal government, for instance. And there
are routinely disputes about language use in the
workplace. In 2012 there was a lawsuit arising
from a hospital in Delano (where Cesar Chavez led the
farm workers' union many years ago). A local
hospital there had unofficially forbidden employees to
speak "Tagalog and other dialects" among themselves,
even in the break room or in the cafeteria, according to
reports. And people were reportedly mocked for
their accents when speaking English. The hospital denied
liability but settled the case for around $1
million. Anh Do, Filipino Nurses Win Nearly $1
Million in Bias Settlement, Los Angeles
Times, Sept. 18, 2012, at AA1.
Author identification has been somewhat of
a controversial issue among linguists, and it recently
became an important issue in a case involving Mark
Zuckerberg, the founder of Facebook. A certain
Paul Ceglia has claimed that he is entitled to half the
value of Facebook, based largely on emails that he
claims were sent to him by Zuckerberg. Gerald
McMenamin, who has written extensively on this topic,
has filed a report in court detailing his forensic
stylistic analsyis and concluding that it is probable
that Zuckerberg was not the writer of the emails in
question. Other experts, including Ron Butters,
who has also done work in the field, question whether
any conclusions can be reached on relatively short
samples. See Ben Zimmer, Decoding
Your
Email Personality, New York Times, July 24, 2011.
There was once a time when laws had
names that expressed what they were meant to
accomplish. Consider the Endangered Species Act or the Civil Rights Act or
the Marine Mammal
Protection Act. For the past decade or
so, however, it has become increasingly common for
sponsors of bills to turn the names of bills into
political statements, sometimes called "attack
titles." It is also common for them to function as
acronyms. A bill to repeal the new U.S. health care law
was titled the Revoke
Excessive Policies that Encroach on American Liberties
Act, a.k.a. the REPEAL Act. Other
examples include the Big
Oil Welfare Repeal Act, the Reducing Barack Obama's
Unsustainable Deficit Act, and the Repealing Ineffective and
Incomplete Abstinence-Only Program Funding Act.
In 1997, Representative Pete Stark became
concerned about doctors trying to induce patients to
agree to pay for additional services when they were in
the examination room. He sponsored a bill called
the No Private
Contracts to be Negotiated When the Patient is Buck
Naked Act, also known as the Stark Naked Act.
Fortunately, most of these bills were
not enacted into law. In fact, it seems likely
that often they were not meant to be taken seriously, as
the silly names suggest. The problem, in other
words, is not just highly politicized names, but also
highly politicized bills.
See Richard Simon, Putting Hot Air Up For a
Vote, L.A. Times, June 20, 2011, at A1
These
days, oral argument in most US appellate courts is not
so much lawyers arguing their clients' cases to the
judges, but instead could better be described as
argument between bench and bar. A recent study
found that the justices on the US Supreme Court asked an
average of 133 questions per hour. Like
cross-examination at trial, these questions are often
not really requests for information, but invitations to
debate. One reason for all these questions (or
pseudo-questions) is that at the time of argument,
lawyers have laid out their case in extensive briefs,
often aided by additional briefs from amici
curiae. Thus questions serve to probe or
test an argument made by one of the parties.
According to the NY Times article,
one justice who has not participated in the verbal
interaction with lawyers is Clarence Thomas. In
the past 5 years, he has not asked a single question or
made a single comment. Justice Thomas claims that
he maintains his silence out of respect for the
lawyers--that he wants to hear their arguments. Of
course, if he read the briefs he would already know what
the positions of the parties are.
Adam Liptak, Clarence Thomas Keeps
5-Year Supreme Court Silence, N.Y.
Times, Feb. 12, 2011
Los Angeles police
arrested a Mexican immigrant, Candido Ortiz, and charged
him with attempted murder. He apparently spoke
only an indigenous Mexican language, along with some
very basic Spanish. Thus, an interpreter was
needed for his preliminary hearing, were a judge would
take his plea. The courts in L.A. have access to
interpreters of over 100 languages, but in this case
they were stymied. They began, logically enough,
with a Spanish interpreter, who soon realized that Ortiz
seemed not to understand much Spanish. The next
hypothesis was that he spoke Zapotec, a Oaxacan
language, but that proved incorrect. He was then
identified as a speaker of Mixe, a less common Oaxacan
language. An interpreter of Mixe was flown in from
San Francisco, but he spoke Mixe alto, a dialect which
Ortiz did not understand. The next interpreter
spoke Mixe bajo, but this was again the wrong
dialect. It turns out he spoke Quetzaltepec
Mixe. Apparently there are no qualified
interpreters of this language in the U.S., but a
university student who spoke it was found in
Mexico. He interpreted from Mixe into Spanish by
telephone, and another interpreter in the courtroom
interpreted the Spanish into English, a process called
"relay interpreting." When all else fails, the
court interpreter's office sometimes sends someone to an
ethnic restaurant in search of speakers of exotic
languages. Prosecutors in the case had a simpler
solution: make him speak Spanish. He's faking it.
Victoria Kim, How Do You Say 'Plea' in
Chuukese?, L.A. Times, Feb. 21, 2009, at A1.
Along the U.S.-Mexico border,
immigrant-rights activists have been placing water
bottles in areas where immigrants cross the border,
since the area is extremely dry in places and immigrants
sometimes die of heat and dehydration. One such
area is a wildlife refuge (the Buenos Aires National
Wildlife Refuge), where it is illegal to dump "waste,"
which might be dangerous to the endangered species
living there. Three men were arrested for placing
bottles filled with water in the refuge, which
prosecutors claimed was a violation of the
statute. They were convicted at trial, but a
federal court of appeals later held that placing water
bottles in the refuge did not constitute "dumping
waste." That seems like the correct decision,
since a bottle with water in it is not normally
"waste." But it does open the question of whether
a border-crosser, having drunk the water, is legally
required to carry the bottle to a proper disposal or
recycling site. Leaving behind an empty bottle
probably would constitute "dumping waste," in my
opinion. Of course, if such a person were to come
to the attention of law enforcement officials,
deportation would be a more likely option.
Carol J. Williams, Conviction in
Migrant-water Case Overturned, L.A. Times,
Sept. 3, 2010, at AA3.
A black supervisor at a Tyson Foods
chicken plant was twice passed up for promotion and
brought a lawsuit alleging racial discrimination.
He presented evidence that the white manager of the
plant had the habit of referring to African-Americans as
"boys." The federal court of appeals held that
this usage was "nonracial in context." One would
think that a court in Atlanta, of all places, would know
a bit more about the historical (and, apparently,
current) derogatory use of this word in reference to
grown black men.
Adam Liptak, Appeals Court in Atlanta
Again Rejects Racial Discrimination Claim, N.Y.
Times, Sept. 6, 2010.
Jurors in the corruption trial of Rod
Blagojevich, former governor of Illinois, found him not
guilty of almost all charges against him, much to the
surprise and dismay of prosecutors, who believed they
had an "overwhelming" case against him. One of the
causes of the verdict was the jury instructions, which
went on for more than one hundred pages, along with a
verdict form "as elaborate as some income tax
forms." It took the jurors several days to figure
out what they were supposed to do. One juror
expressed "frustration that we didn't accomplish what we
set out to do." As they say, "garbage in, garbage
out."
Monica Davey & Susan
Saulny, Jurors Fault
Complexity of the Blagojevich Trial, N.Y.
Times, Aug. 21, 2010
In an article published by the
Journal of Experimental Social Psychology, researchers
have reported on a study showing that people tend to
distrust people who speak with a foreign accent.
This is consistent with other studies that show a
"simplicity-sincerity effect"--people tend to find that
a statement written in a clear font (one that is easy to
read) is more likely true than more obscure fonts.
Even when subjects were told about this effect (i.e.,
that people have less trust in statements made by
nonnative speakers), it persisted. The study is
reminiscent of the "powerless" speech style identified
by William O'Barr in his book, Linguistic Evidence. He
likewise found that instructing subjects to ignore the
effects of what he called the powerless speech style did
little to counteract that effect (pp. 95-96).
Pamela Paul, An
Accent Makes You Less Credible, Study Says, N.Y.
Times, August 27, 2010