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Since many legal disputes are battles over the meaning of a statute, contract, testimony, or the Constitution, judges must interpret language in order to decide why one proposed meaning overrides another. And in making their decisions about meaning appear authoritative and fair, judges often write about the nature of linguistic interpretation. In the first book to examine the linguistic analysis of law, Lawrence M. Solan shows that judges sometimes inaccurately portray the way we use language, creating inconsistencies in their decisions and threatening the fairness of the judicial system.
Solan uses a wealth of examples to illustrate the way linguistics enters the process of judicial decision making: a death penalty case that the Supreme Court decided by analyzing the use of adjectives in a jury instruction; criminal cases whose outcomes depend on the Supreme Court's analysis of the relationship between adverbs and prepositional phrases; and cases focused on the meaning of certain words in the Constitution. Solan finds that judges often describe our use of language poorly because there is no clear relationship between the principles of linguistics and the jurisprudential goals that the judge wishes to promote.
A major contribution to the growing interdisciplinary scholarship on law and its social and cultural context, Solan's lucid, engaging book is equally accessible to linguists, lawyers, philosophers, anthropologists, literary theorists, and political scientists.
Preface Introduction: Judging Language
1. Chomsky and Cardozo: Linguistics and the Law Cardozo's Hope: Keeping the Law Flexible Chomsky and the Nature of Linguistic Knowledge Chomsky, Cardozo, and Mrs. Palsgraf
2. The Judge as Linguist The Last Antecedent Rule Mrs. Anderson's Case Processing Strategies and the Last Antecedent Rule The Across the Board Rule: Mr. Judge Drugs and the Last Antecedent Rule Last Antecedents and Legal Canons Empty Words: The Interpretation of Pronouns Mr. Bass Pronouns and Taxation The And/Or Rule Problems of Scope—And Means Or
Support of Delinquent Children—The Problem with And/Or
Mr. Caine—Or Means And
Adjectives and the Linguistics of Capital Punishment Why Judges Do Not Make Good Linguists
3. Stacking the Deck The Rule of Lenity Yermian: Lenity and the Scope of Adverbs What about Brown?
RICO—Lenity and the Meaning of Words The Linguistics of Insurance Policies The Jacober Accident Ignoring Language—Partridge
Understanding Ambiguous Contracts
4. When the Language Is Clear How Plain Can Language Be?
The "Plain Language" of RICO When the Language and Its Opposite Are Both Plain Understanding Patterns: RICO as an Unclear Statute
Turkette and Russello Revisited: Some More Fuzzy Concepts When Is Plain Language Enough?
5. Too Much Precision The Quest for Precision Pronouns and the Fifth Amendment Devices to Limit Ambiguity of Reference in Legal Language Party of the First Part Replacing Pronouns with Names Said and Same Using Special Words The War against Legal Language How Much Better Can We Do?
6. Some Problems with Words: Trying to Understand the Constitution People, Corporations, and Other Creatures What Is a Corporation Corporations, the Lexicon, and the Fifth Amendment Testimony and the Act of Speech The Current State of the Fifth Amendment Speech Acts: Linguistics and the Fifth Amendment Admissions Admitting by Bleeding What Is a Search The Word "Search"
The Fourth Amendment and the Lexicon Some Easy Cases and Some Hard Ones
7. Why It Hasn't Gotten Any Better
Anderson and the Status Quo Expanding Legal Doctrine Getting Tough The Language of Judges Notes Table of Cases Index