The Faculty Lounge

Hamann, "K is for Contract—Why is it, Though?

Hanjo Hamann (Max Planck Institute for Research on Collective Goods, Germany) has posted to SSRN K is for Contract—Why is it, Though? 106 Minn. L. Rev. Headnotes (2022). Here is the abstract:

Just like Supreme Court justices, law students in the United States almost unanimously abbreviate the word “contract” using the capital letter K. Despite this consensus, no writer has ever explained why a word that starts with “c” should be abbreviated to “K” instead. The present paper investigates this question, following threads of legal discourse into various interconnected societal contexts―including Boston high society, 19th century baseball, German intellectual property law, the neuroscience of sleep, and Civil War contract management. I show that the K-for-Contract convention probably originated between 1900 and 1949, and may have come, of all places, from satirical military lingo. In arriving at this finding, the present essay offers an intriguing case study of legal narratology and the propagation of lawyerly conventions. By empirically surveying contract law professors to trace the origins of K-for-Contract, the study also shows that even seasoned instructors who use and teach this legal shorthand can no longer justify its usage. This proves to be an instructive illustration of boilerplate effects, or what one Contracts professor called the “arcane underpinnings of the rules we all follow."

The full essay is available here.

I've always wondered about that K! 

To All the Statutes I've Ever Loved

This excerpt from Learned Hand's Eulogy for Thomas Swan caught my attention today:

[T]he words of such an act as the Income Tax, for example, merely dance before my eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception—couched in abstract terms that offer no handle to seize hold of—leave in my mind only a confused sense of some vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time. I know that these monsters are the result of fabulous industry and ingenuity, plugging up this hole and casting out that net, against all possible evasion; yet at times I cannot help recalling a saying of William James about certain passages of Hegel: that they were no doubt written with a passion of rationality; but that one cannot help wondering whether to the reader they have any significance save that the words are strung together with syntactical correctness.

Learned Hand, Thomas Walter Swan, 57 Yale L. J. 167, 169 (1947).

I suspect that my Federal Income Tax students feel Judge Hand's pain!

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Winner of 2016 Penny Pether Award + Call for Nominations for 2017 Award

The organizers of the Penny Pether Law & Language Scholarship Award for 2016 have issued these announcements:

2016 Winner

The winner of the Penny Pether Law & Language Scholarship Award for 2016 is Stephen Paskey, Telling Refugee Stories: Trauma, Credibility, and Adversarial Adjudication of Claims for Asylum, 56 Santa Clara L. Rev. 457 (2016). The committee reviewed 25 nominated articles, and we struggled to identify a winner due to the high quality and strong diversity in the scholarship. We congratulate Professor Paskey, and we thank all the nominees for participating.

Call for Nominations: The Penny Pether Law & Language Scholarship Award 2017

A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether (1957-2013) was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation.

Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship has been given annually to an article or essay published during the preceding year (September 1 to September 1) that exemplifies Penny’s commitment to law and language scholarship and pedagogy.

The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics:

1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.”

2. Scholarship that “attempts to think through the relations among subject formation, language, and law.”

3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.”

4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.”

More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010).

Nominations should be sent by January 8, 2018, to J. Amy Dillard at [email protected]. You are free to nominate more than one work and to nominate work you’ve written. Please provide a citation and a pdf for each work you nominate.

We are shifting our definition of the preceding year to simply our process. But in this year of transition, for the 2017 prize, we will consider any work published between September 1, 2016 and December 31, 2017. In the future, we will work with a calendar year.

The Selection Committee includes Linda Berger, David Caudill, Amy Dillard, Bruce Hay, Ian Gallacher, Melissa Marlow, Jeremy Mullem, Nancy Modesitt, Stephen Paskey, and Terrill Pollman.

Members of the Selection Committee are not eligible for the award.

CFP: International Language and Law Association (ILLA); Abstracts Due October 15, 2016

From an email I received today from a German colleague: 

 

The International Language and Law Association (ILLA) was founded by legal linguists Peter Tiersma, Lawrence Solan and Dieter Stein in 2007. Their initiative was to create a network of linguists and lawyers around the world working on the language matrix of law. In that framework, language is not simply seen as a subject in the legal context or an object of forensic analysis, but as the central medium of modern constitutional states, as the mediator of social conflicts and the core of legal methodology.

After an initial period of gestation, documentated in two conferences, it is now time to relaunch the ILLA, to reconfigure the society on the basis of the experiences up to this point and to give it a new sustainable structure. In memory of Peter Tiersma (1952–2014) we are organizing ILLA’s first international conference of legal linguistics in August 2017, to be held in Freiburg (Germany):

Language and Law in a World of Media, Globalisation and Social Conflicts

Refounding the International Law and Language Association (ILLA)

to make law more transparent

September 7th – 9th, 2017, University of Freiburg, Germany

Under this general topic we especially want to discuss the following issues:

(1) The current state of research in the field of legal linguistics in the context of increasing social conflicts in globalized, multilingual and digitalized societies. Here it is also necessary to bring together the particular research traditions of legal linguistics in different countries – for example in Germany, the United States, Russia and China.

(2) Defining the most important tasks for the young discipline of legal linguistics in different cultural, linguistic, and (inter)national contexts. It will not only be beneficial in the legal domain itself, but it will also generate extensive applicational insights at large, by searching for answers to the following questions: How can research results be transferred into the education of future lawyers both in existing programmes and in new international Master’s degree programmes? How can models of legal linguistics be useful for rethinking methodological problems in the context of transnational and multilingual law in a globalized and digitalized world? How can legal linguistics contribute to understanding and resolving social conflicts? And how can we approach legal linguistics as a “theory of practice” (Bourdieu 2009) and as a practice of courts and legislation?

(3) The foundation and restructuring of ILLA, its future guidelines and organisational framework.

The first conference of the International Language and Law Association will be hosted by the University of Freiburg (Germany) under the direction of Prof. Dr. Friedemann Vogel, from September 7th to 9th, 2017. In response to many requests we now extend the deadline for paper submissions:

The extended deadline for all submissions of abstracts is October 15th, 2016. More information at: https://www.illa.online

Revising Internal Revenue Code Terms Relating to Marriage

In the post-Windsor, post-Obergefell world, the Internal Revenue Code needs to be revised to take same-sex marriage into account.  The ABA Section of Taxation has submitted to the IRS comments on proposed regulations defining terms related to marital status in the Internal Revenue Code. The principal drafter of the comments was Anthony Infanti (Pitt), chair of the Teaching Taxation Committee of the ABA Section of Taxation. Substantive contributions came from Pat Cain (Santa Clara), David Herzig (Valparaiso), Ted Seto (Loyola Law School, Los Angeles), and others (with some minor comments from me). Tony Infanti's leadership was absolutely key.

One important aspect of the comments is the recommendation that the IRS recognize domestic partnerships, civil unions and similar relationships for federal tax purposes.  The Comments explain that "recognizing these alternative relationship statuses for federal tax purposes would better fulfill the Service’s professed purposes in issuing the Proposed Regulations, would result in fairer treatment of similarly situated taxpayers, would render tax considerations neutral in choosing between the different relationship statuses, and would better accord with the reality that several states already treat these relationships as marriages for purposes of their laws."

You can read the Comments here.

The Geography of Legal Thought

Each year I spend the first few minutes of my Civ Pro class, as I expect so many other profs must do, showing my students the death cage match from Mad Max Beyond Thunderdome. The battle between the “man with no name” and the baby-faced giant, all to decide who really owns a vehicle, sets up a lively discussion about procedural justice and modes of dispute resolution.

The second day I turn away from no-holds-barred adversarial battles and towards topics that are less traditional for Civ Pro classes. For reasons that at first clearly perplex my students, we take our second day in Civ Pro to discuss a book called The Geography of Thought, written by a psychology professor named Richard Nisbett. The book collects the results of decades of research by Nisbett and others, in which experiments are run on the cognitive styles of different cultures. In particular, he contrasts the cognitive style of east Asians – such as my students – with the cognitive styles of Europeans and Americans, such as myself.

The first interesting thing about Nisbett’s results is that cognitive differences are notable in very early childhood. They are in no way genetic – Chinese Americans, for example, test as Americans after a generation or two – but they are sufficiently deeply rooted in cultures that they show up before philosophies or dogmas can be taught with any sophistication.

3L Nuggets: 2. Are typos the enemy?

The legal profession takes a strong stand against typos.

I will admit that as a history graduate student, I thought the research and the writing would speak for themselves. The occasional typo or style slipup, while I would try to catch them when I proofread, would not faze me too much.

For more than two years now I have seen hawkeyed professors and firm partners find even the smallest typographical error with a kind of typo omniscience that puts the fear of the almighty into law students everywhere.

This is especially the case when it comes to legal citation, when a misplaced apostrophe or comma is an easy sin to commit.

Indeed, legal professionals can make a strong argument when pressed on the importance of eliminating even the smallest typos:  Lawyers need to care about such things because they have clients to represent and judges to persuade.

Clients see carelessness that ignores how important the case is to them and how much money they are spending on your services. Judges see an insouciance that keeps them from trusting you. How can they be sure you are citing cases properly and advancing credible arguments when you reference a “squid pro quo” exchange?

I will say that I read and reread what I write many more times and much more carefully than I did before law school. Will I catch everything? Maybe not. Maybe there's a typo in this very post! But if I don’t, at least at this point it won’t be because I don’t care. This is another area where law school successfully indoctrinates the law student.

Can you spot the difference between the italicized and regular period? . .

Anyone out there want to defend the occasional typo? One argument I can think of is that spending hours checking for typos can increase legal costs and make law less efficient. 

One Woman's Response to Street Harassment

For fans of the "Missed Connections" genre on Craig's List, this gem:

The blonde you shouted at - w4m - 27 (American Blvd/34th Ave)

The scene: 4:30 pm Friday, intersection at American Blvd and 34th Avenue.

You: Middle-aged, dark hair, tan skin, driving a green SUV * * * 

Me: 20s, blonde hair, black fitted dress, gladiator sandals and waiting at the intersection to catch the lightrail. * * * 

So, that's where we were. Me, minding my own business. You, apparently observing my ass. At that point you had options. You could have driven past me and said nothing. You could have turned up your radio and waved, ensconcing us in some beats and camaraderie. You could have shouted out, "Happy Friday! Yeehaw!" Any of those options would have been great. I probably would have waved, smiled, and started my weekend on the same high note as you.

Instead, you chose the most pathetic option available to you: You leaned out of your window and made some ridiculous series of leering comments about whether I was wearing a thong, right as the light changed and you peeled off, pleased with yourself and saved from any consequences. * * * 

Let me make this abundantly clear, to you and to the other men reading this: when you comment on a woman's appearance, you are not doing it for her. You are doing it for you. It's not some great way to make a woman feel sexy and appreciated. It's not flattery, even if you mean for it to be. The only thing it is is a great way for you to create a shitty power dynamic, by which you have announced yourself as the arbiter of her value, and you've deemed her fuckable, and she is supposed to be happy or impressed by that. 

If you really find a woman beautiful, don't choose the juvenile selfish route that makes her feel weird and you look like an asshole. Just take a deep breath, commit the image to memory, and get on with your life. Or, if it's really that great of an ass that you can't possibly survive without commenting on it, post about it on CL missed connections after the fact and let her decide what to do about it. 

Read the full post here.

My favorite line? "Just take a deep breath, commit the image to memory, and get on with your life." 

 

New Statistical Evidence Shows Ancient Book May Have Meaning

The BBC has an fascinating story today about the Voynich Book, a book dating from the early 1400s written in an unknown language.  Since no one has yet been able to decipher the language in which the book is written, controversy has been raging for years about whether the book is a hoax or was written in an unidentified language.  Another possibility is that it has meaning but has been encrypted.  New statistical evidence suggests that the words appear in patterns that are similar to those in other languages.  One of the authors of the new study, physicist Marcelo Montemurro, believes this evidence all but rules out the possibility that the book is a hoax, although other scientists disagree. 

It does seem like a lot of trouble to go to create a hoax, and for some reason I have a preconceived idea that elaborate hoaxes are a more recent phenomenon.  At any rate it's an interesting read and makes me hunger to learn more about statistics for yet another reason. 

Up Goer Your Law Review Article

To those faculty hiring committees who asked me to explain my PhD dissertation, Finitude, Transcendence, and Ethics: Sartrean-Niebuhrian Resources for Understanding Difference and Dominance, in layman’s terms: I regret that this explanation is coming so late, but here it is, using only the most commonly used 1,000 words in the English language.

Cedar Riener (follow him @criener), an enterprising psychology professor, has begun a Tumblr, Up Goer Your PhD, collecting doctoral dissertation abstracts written in layman’s terms, as described above. His project is a riff on this brilliant layman’s diagram of Saturn 5, otherwise known — when one is limited to the most common 1,000 words — as “Up Goer 5.” People using Up Goer to explain a variety of other complicated concepts can be found on Twitter at #UpGoerFive. Many Up Goer projects turn out to be hilarious, and they’re fun to create, too.

But there’s a serious point here as well. Jargon (including technobabble, neurobabble, and other babbles) can be efficient shorthand when conversing among other experts. But let’s be frank: it can also conceal some serious B.S., not only from our readers, but also from ourselves. Why? We often believe that we understand concepts better than we actually do — sometimes called the Illusion of Knowledge (disclosure: the interviewee is my husband), or the Illusion of Explanatory Depth. Many studies have found that people often overestimate how well they understand complex phenomena (even distinct from general overconfidence bias). In one set of experiments, subjects were often unable to draw a functioning bicycle, despite having previously reported that they understood bicycle mechanics. In another, subjects displayed similar overconfidence in their understanding of devices, procedures, natural phenomena, and movie plots.

In addition to being fun, being forced to “up goer” your writing on a complicated subject is an extraordinarily useful exercise. It’ll keep you honest. Try it with this handy text editor that lets you type your layman’s explanation into a box, and tells you when you’ve used a verboten word. When you’re done, there’s a button to click that lets you permalink your Up Goer creation and tweet, Facebook, or blog it — but the button only appears when you have avoided all verboten words. In some contexts, this could also be an excellent teaching tool. Give it a try: it’s harder (and more illuminating) than you think.

Postscript 1: The original dissertation abstract from which I was working is here. It's been a while since I wrote it, and I confess that as I began to up goer it, even I wasn't sure, at points, exactly what I'd been talking about. (When you live and write long enough, I suppose you have this out-of-body experience more and more often.) With some effort and recollection and the help of the Up Goer text editor, however, I satisfied myself that my dissertation was not, in fact, B.S. There was a there, there after all. On the other hand, I now sort of feel like my 5-year-old could have written it. Tradeoffs.

Postscript 2: A bit of nerd humor about empirical versus non-empirical methods. 

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

"Gender and the Legal Profession's Pipeline to Power" Symposium Under Way at MSU

  The MSU Law Review Symposium on "Gender and the Legal Profession's Pipeline to Power" is in full swing of today.  I'll be live blogging and tweeting (@ProfBCrawford  #genderandlegalprof) throughout the day.  Here's the morning's line-up:

Panel 1--Gender, Race and the Judiciary

Moderator: Linda Greenhouse

Renee Newman Knake (MSU), Rethinking Gender Equality in the Legal Profession's Pipeline to Power

Keith Bybee (Syracuse), The Limits of Debate or What We Talk About When We Talk About Gender Imbalance on the Bench

Sally Kenney (Newcomb College, Tulane), Gender at Work: The First Women on State Supreme Courts

Angela Onwuachi-Willig (Iowa) and Amber Fricke (Iowa), The Inexorable Zero: Female Judges of Color [unintentionally omitted from initial post; updated 4/14/12--BJC]

Panel 2--Gender Equality: From the Boardroom to the Electorate

 Moderator: Winona Singel (MSU)

Doug Branson (Pitt), Diversity in Corporate Governance

Christine Corcos (LSU), Toward Cognatic Primogeniture: The Rise of Equal Rights of Succession in the Modern European Constitutional Monarchy

Erika Falk (Communications, John Hopkins), Unnatural, Incompetent, and Unviable: Press Portrayals of Women Candidates for President

Panel 3--The Roots of Gender Inequality in the U.S. and Abroad

Moderator: Melanie Jacobs (MSU)

Jen Mullins (American), Reactions to Lose: Investigating Lack of DiPersistent Gender Disparity in Student Note Publication

Dara Purvis (Illinois), Gendered Self-Evaluation of Female Law Students

Abigail Rury (Iowa), All Things Being Equal, Women versity Among the Recent Appointments to the Iowa Supreme Court.

More to come!

(cross-post at Legal Ethics Forum)

A Rose By Any Other Name . . .

First off, a big thank you to Dan for allowing me to serve as a guest here at the Faculty Lounge.  I'm honored to participate in this wonderful community.  So thank you very much for having me.

Today I was talking with a good friend of mine about the art of titling law review articles.  Personally, I've often thought that it would be quite interesting to enter all the law review titles (from some discrete time period) in a database and see which key words pop up the most often.  I'm thinking "normative" and "heuristic" would have to be up there . . . 

All this begs the question:  How do we go about titling our law review articles?   More specifically -- Should we try to sound fancy?  Should we try to be cute?  Should we try to write something that will simply sound impressive to the law review editors we hope to persuade to publish our work?

A relatively recent article by Professors Leah Christensen and Julie Oseid, entitled "Navigating the Law Review Article Selection Process" (available on SSRN here) found that, in some cases, a "catchy" title can work against you with law review editors.

So, I'm curious.  How do you go about titling your articles?  And, other than to simply describe what the article is about, what other motivations influence the titles you ultimately select?

Wise Words

Recently, I’ve blogged about good (and bad) writing, here and here.  In a bit of serendipity, I came across yesterday two happily short essays, both written by law professors who are masterful writers with formal training in literature. 

One essay is by Bill Miller at Michigan, the other by Stanley Fish at FIU, and both dwell on the meaning of old age.  As he does in his addictive books, Miller writes with brio and a wit that is generous and droll.  Fish, surely one of the eminent public intellectuals of his time, reflects on his life with candor, humility and, something that I didn’t naturally expect from a law professor, a moving and genuine affect. 

Miller and Fish hint that they are near the end; as someone who, by turns, adores and covets their talent for the craft of writing, I hope not.   

Big Words

Jacqui’s post got me thinking about prose, and especially, the meaning of good prose; I had written about that before. 

In Jacqui’s post, Stephen King was quoted as saying that a simple word, with its purported directness and lucidity, is usually better than a longer one, with its clumsy pretentiousness. 

There’s a happily intuitive appeal about King’s view.  I mean, do I really want the 2L students in my First Amendment seminar, the night before their papers are due, to raid Roget’s Thesaurus, looking desperately for pseudo-scholarly substitutes for “significant” and “odious,” in some vain endeavor to gravy over an otherwise substantively mediocre paper? 

But should King’s dictum apply for everyone?  Take the satirist David Lodge or, for that matter, Christopher Hitchens, with their luscious grammar and deft—no, masterly—grasp of English.  (Lodge and Hitchens, both British,. . . that wasn’t intentional, by the way,. . . please, no accusations of America-bashing.)

I find their vocabulary, multisyallbic and challenging, to be gorgeous and illuminating, the sort of stuff that I wish I had written, not just for their substance, but their fabulous style.    

 

 

 

Lawtalk, Old and New

I've long been fascinated by the interaction of law and culture, and so jumped at the chance to be one of the authors of Lawtalk:  The Unknown Stories Behind Familiar Legal Expressions, due out in November. The rich histories behind phrases we law professors use every day, coupled with their tendency to pop up in today's headlines, is just plain fun.  So I'm also very happy to get this chance to guest blog a bit and share some of those stories with readers of The Faculty Lounge.

I'll start with two related terms:  "rap" and "rap sheet."  The former started life meaning a blow to a person or sharp tap on an object.  Over the centuries it developed a figurative meaning, and by the end of the 19th century to "get the rap" for something was well-established slang for getting the blame.  The lingo of criminal world then adopted "rap," adding colorful variations.  The New York Times in 1926 helpfully provided this translation of one meaning of "rap" for its readers:  "When one is singled out from a line of suspects as the dick who slid with the ticktick, one is the victim of a 'rap.'"

"Rap sheet" came along later, but was based on the well-established sense of "rap" as a criminal charge.  This straightforward history did not, however, prevent the establishment of a false etymology -- the belief that the "rap" in "rap sheet" is an acronym for "Record of Arrests and Prosecutions." It would make a logical acronym, like SCOTUS (Supreme Court of the United States). 

Logical, but untrue.  That version of "rap" sheet is another animal entirely:  the backronym.  While in a true acronym the phrase precedes the word, a backronym attributes a false back-story.  "Golf," for example, did not come from "gentlemen only, ladies forbidden," nor does "cop" come from "constable on patrol."  An enterprising computer programmer has even created a backronym generator. FACULTY, for example, becomes "Foolish Antiquarianism Clarification Unbecomingly Lateness Terrible Yelp," and LOUNGE is "Learn Old Unhallowed Neptunian Group Endowment."  One computer-generated backronym for RAP is "Ridicule and Penetration."

Nevertheless, the fiction is becoming truth.  A few states have actually formally adopted the phrase "Record of Arrest and Prosecution" and call the resulting records R.A.P. Sheets, converting slang into the official title for criminal history records and turning the simple, earthy "rap" into a pretentious series of initials.  "Rattling Analyst Poster," anyone?

 

Can the Law Speak Directly to its Subjects?

Even the first part of the title of this new article caught my eye:

Rebeea Assy, Can the Law Speak Directly to its Subjects? The Limitati0n of Plain Language, 38 J. L. & Soc'y 376 (2011)

I haven't read it yet, but the abstract looks promising:

Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.

Note that non-subscribers (me, for example) can only access the article on-line by paying for it.

As a transactional lawyer, I emphasize the importance of planning, and contracting, in reducing potential disputes.  The problems with contracts are the problems with all language:  completeness and interpretation. Like mathematical systems, no non-trivial contract can be complete.

The problem of interpretation--what did you say when you said what you meant?--is doubled, if not squared, when you are talking about communication between two persons:  how did the other person understand what you said? Is that black-and-white spotted dog mainly black, with white spots, mainly white, with black spots, or somewhere in between.  There is a particular color that I always see/describe as clearly gray, though a blue-ish gray, and my wife always sees/describes as clearly blue, with a touch of gray.  I now think of it as "that color," and try to remember that my wife sees/describes it differently--course of dealing, I suppose you'd call that.

Two Narratives of Courage

One of the corollaries of any study of manliness is courage, the supremely male virtue.  But if courage forms the center of male virtue, do we know what courage is?  In a work in progress, I’m interested in juxtaposing two narratives of courage, those proffered by judges to underwrite their opinions and those ushered by combat soldiers to make sense of what they experienced.  I know the below examples, not at all the product of random sampling, hardly begin to scratch the surface; perhaps, though, they’re food for thought. 

 Three Judges on Courage

 “Those who won our independence believed. . . .courage to be the secret of liberty. . . .”--Justice Brandeis, Whitney v. California (1927). 

“. . . the exercise of First Amendment rights often requires an act of courage,. . . .” --Judge Ramirez, Keene v. Meese (1985).  

“To justify a homicide the fears of the slayer must be those of a reasonable man, one reasonably courageous, reasonably self-possessed, and not those of a coward.” --Judge Louis L. Brown, Wheeler v. State (1934). 

Three Soldiers on Courage

“It is hard to know what bravery is.”--Tim O’Brien, Vietnam War combat veteran.

“It was some months and only a few more bullets and shells later that I knew my courage for what it was—a reaction to the shame I felt at being afraid,. . . .”--Robert Crisp, World War II veteran, recipient of Britain’s Distinguished Service Order and Military Cross.

“I understand desertion.  A man distraught determines that the last act of his life shall at least be one of his own volition; and who can say that what is commonly regarded as the limit of cowardice is not then heroic?”--Max Plowman, World War I combat veteran.

Man up!........Man up?

Thanks to Dan for letting me guest blog.  Alas, I immediately repay his kindness by exploiting this opportunity to post on something bleakly provincial to my own scholarly preoccupations:  manliness.  Specifically, manliness in the context of law and literature.  I know, I know.  Here we are, in the debt crisis, facing the impending end of Western civilization, and I want to blog about law & literature. . .regarding. . . “manliness.” (isn’t this the shameless epitome of the self-indulgent academic?) 

But so much of the debt crisis is suffused with the idiom of manliness, isn’t it?  Liberals cry that Obama needs to “man up” and confront the Tea Party while Boehner, even for a dude who doesn’t mind having a good ole’ public cry now and then, once committed, can’t stand down from his manly posture without embarrassment. 

But this post isn’t me expounding my views on manliness (ummmm, you can find that here, incidentally).  It’s rather me asking for your help.  I’m trying to put together an annotated bibliography, provisionally titled, “Manliness:  A Law and Literature Perspective.”  So, for example, I would include—would have to include—Mario Puzo’s The Godfather.  Talk about manliness, it has every aspect of it:  the patriarch, the reckless man-child, the avuncular bully, the callow son trying to prove his manhood, the faltering wimp, you name it.  And all of it takes place in the context of law.  Guys trying to violate it, bribe it, evade it, enforce it.  Much of the law, then, presents obstacles and opportunities for and extensions and emanations of manliness. 

So, I need your help:  what do you think would be good pieces of literature to include in such a bibliography of manliness in law and literature?