:mad:
http://www.slate.com/articles/news_and_politics/explainer/2012/05/john_edwards_trial_why_can_t_lawyers_agree_on_the_meanings_of_simple_words_.html
QuoteThe Meaning of The
Why can't lawyers agree on the meanings of basic words?
By L.V. Anderson|Posted Monday, May 14, 2012, at 7:04 PM ET
John Edwards' legal team, which began its defense of the former senator today, intends to argue that Edwards did not violate campaign finance laws by using donations to hide his affair with Rielle Hunter. The law proscribes "any gift, subscription, loan, advance, or deposit of money ... for the purpose of influencing any election for federal office." Edwards' lawyers argue that the word the, as in "the purpose of influencing any election," suggests the sole purpose. That's a key distinction, since prosecutors argue that the, in this case, means a—and that the whole phrase suggests at least one among several purposes. Why can't lawyers agree on the definitions of basic words like the?
Because language is often ambiguous, and the people who write laws sometimes fail to define their terms. In regular speech, the definite article (the) can sometimes refer to something unique—for instance, "I have a cat. The cat is sleeping." Other times, it can refer to something that's not unique: If I say, "My cat is lying on the arm of my chair," I'm not implying that the chair has only one arm. Whether the refers to something unique depends on the context in which it's used and can be open to interpretation. (The can also refer to a broad category of things, as in "The cat is a kind of mammal," but neither side of the Edwards case is arguing for this meaning of the.)
It's up to a judge to determine which definition of a word is more likely to apply in a given statute. Many lawyers and judges try to apply what's known as the "ordinary-usage canon"—that is, what a reasonable native speaker of English would assume a word, phrase, or idiom to mean. Sometimes judges' rulings don't exactly adhere to ordinary-usage canon—for instance, in 1993, the Supreme Court ruled that the phrase "using a gun" could mean not only using a gun as a weapon (as one might commonly use that phrase to mean) but also giving someone a gun in exchange for something else (in this case, drugs). More recently, in Caraco Pharmaceutical Laboratories v. Novo Nordisk, the Supreme Court ruled that the phrase not an, as in "not ... an approved method of using the drug," means "not a particular" method, rather than "not any" method.
Other seemingly simple words that are often contested in the courts include any, and, or, and shall.
Journalists talk shit about technical fields they know nothing about, example aleph null.
Quote from: Ideologue on May 14, 2012, 08:51:44 PM
Journalists talk shit about technical fields they know nothing about, example aleph null.
Indeed. But lawyers are still bad.
Given.
Tim, unfortunate lawyers are nessesary.
Quote from: 11B4V on May 14, 2012, 09:34:08 PM
Tim, unfortunate lawyers are nessesary.
We have several of the unfortunate kind here.
*sighs* Every word matters. That said, there's no way the "the" versus "a" argument is going to hold up:
Sole case: Poisoned contributions stand, as long as there's *some* other provable motive behind the gift as well, even if the *primary* purpose is to influence.
Plural case: Every contribution that has a provable motive of influence is verboten.
Any judge worth their gavel, and better yet, any attorney worth the paper their JD is printed on, is going to attack that one in seconds. No judge is going to want to be the one that effectively destroyed the contribution ban over the choice of article in the wording.
Any ambiguity in language needs be resolved in favour of the accused. I thought you, Tim, the big civil libertarian, would appreciate that principle. :rolleyes:
(that is in fact a stupid rule of interpretation - a law means what it means)
One more reason I could never be lawyer.
Quote from: DGuller on May 15, 2012, 12:01:28 AM
One more reason I could never be lawyer.
Not smart enough?
:console:
Funny, us Ukrainians are usually pretty damn smart...
I think we all know in terms of raw intelligence DG is way smarter than any lawyer here with the possible exception of Joan. Math > application of rules and policy at best and bullshit at worst.
Bah!
A most lawyerly reply. :hmm:
Quote from: Ideologue on May 15, 2012, 12:14:40 AM
I think we all know in terms of raw intelligence DG is way smarter than any lawyer here with the possible exception of Joan. Math > application of rules and policy at best and bullshit at worst.
:yes: That said, in my experience, corporate lawyers that I was involved with in the course of my work have all been very sharp.
Quote from: Barrister on May 15, 2012, 12:05:08 AM
Quote from: DGuller on May 15, 2012, 12:01:28 AM
One more reason I could never be lawyer.
Not smart enough?
:console:
Funny, us Ukrainians are usually pretty damn smart...
you must know different Ukrainians then I know : P
I thought the purposive approach to statutory interpretation held sway in the States. If so, surely this is a pretty easy bit of interpretation.
Quote from: Gups on May 15, 2012, 02:59:37 AM
I thought the purposive approach to statutory interpretation held sway in the States. If so, surely this is a pretty easy bit of interpretation.
It does, but even a strict constructionist not on Romney's legal team wouldn't normally try to make this argument. The precedent would be disastrous, since Congress would spend even MORE time fighting on the proper wording, and all a plaintiff would have to do to invalidate quite a few laws would be to hire a language expert.
I can't follow the argument without the full text, but if the prohibition is against spending money for "the purpose of influencing an election", why isn't it a good argument that spending money for some other purpose is okay? The fancy-dancy common law latin phrase is "expressio unius est exclusio alterius" ("the express mention of one thing excludes all others"). That is, if you expressly state X is prohibited, only X is prohibited unless you make in clear in the statute that X is only an example of the sort of thing that is prohibited.
In any event, the article is silly. Use of simple words can often lead to ambiguous meanings, where clarity is required. I have a case like that right now.
The issue is the test for approving a plant. The statute states the test as follows:
Quote(3) No permit shall be issued by the Director unless,
(a) in the opinion of the Director, the plant is necessary and desirable, having regard to the needs of the producers in the locality in which it is proposed to locate the plant and to the facilities of the existing plants in operation;
The question being - does the director have to have "regard" to the needs only of the producers, in the context established by the existing facilities, or does the director have to balance the interests of the producers against the interests of processors (who own the existing plants)? The "and too" seems to indicate the former.
Somewhat surprisingly, in previous administrative tribunal hearings the tribunals have all opted for the latter interpretation.
This makes a huge difference, as the owners of existing plants will of course always be negatively impacted by issuing a permit to a new competitor.
Quote from: DontSayBanana on May 14, 2012, 10:00:03 PM
*sighs* Every word matters.
Yes, it does. Legal battles are like dogfights, and every word can determine the initiative.
OUT OF THE SUN! OUT OF THE SUN!
Quote from: Ideologue on May 15, 2012, 12:14:40 AM
I think we all know in terms of raw intelligence DG is way smarter than any lawyer here with the possible exception of Joan. Math > application of rules and policy at best and bullshit at worst.
He has a lack of street smarts that is noteworthy even by Languish standards, however.
Quote from: Peter Wiggin on May 15, 2012, 08:47:51 AM
Quote from: Ideologue on May 15, 2012, 12:14:40 AM
I think we all know in terms of raw intelligence DG is way smarter than any lawyer here with the possible exception of Joan. Math > application of rules and policy at best and bullshit at worst.
He has a lack of street smarts that is noteworthy even by Languish standards, however.
:yes: :cry:
Quote from: Barrister on May 14, 2012, 10:24:19 PM
Any ambiguity in language needs be resolved in favour of the accused. I thought you, Tim, the big civil libertarian, would appreciate that principle. :rolleyes:
(that is in fact a stupid rule of interpretation - a law means what it means)
This is why laws need to be replaced with computer code, so there is no ambiguity.