Age spots: Gender sensitivity and the Hutchins Commission

The language of the Hutchins Commission report, A Free and Responsible Press, written in 1947, is sexist. The language flaws the report, but certainly does not destroy its value. Language must be separated from content, such as in Plato's and Kant's writings. Although the Hutchins Commission uses unfortunate language, its message goes beyond mere toleration to a supererogatory duty: The ideal of the marketplace of ideas shall be made concrete. Just as Plato's vision of women ruling in equal numbers has yet to become reality and just as Kant's ethical vision of every human's liberation from mistreatment has yet to be realized, the Hutchins Commission's call for a chorus of voices remains unfilled. The call has been echoed and in some case intensified, such as in Carol Gilligan's work on the voices of women. But the goals remain undiminished beacons that remind us—educators as well as the media—that we still have much work ahead in order to achieve inclusiveness.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

Canteen Banter or Racism: is there a Relationship between Oslo Police's Use of Derogatory Terms and their Attitudes and Conduct towards Ethnic Minorities?

This paper explores the possible connection between the Oslo police's use of derogatory terms about the ethnic minority population, and actual police attitudes and conduct. The article's background is a research project focusing on the relationship between the police and Oslo's ethnic minorities. Qualitative methods were applied, including observations amongst rank‐and‐file officers in three police stations, interviews with 20 police officers of different rank and gender, as well as interviews with three samples of basically ethnic minority men. The background for the police's use of derogatory terms about the ethnic minority population is discussed, and possible institutional support is explored. The canteen language and attitudes towards ethnic minorities are seen in relationship to police experiences with them. Incidents observed during the field‐work are applied in the discussion of whether the police conduct may be influenced by their language and thus lead to unjustifiable targeting of ethnic minorities for stop and search. The observations of police conduct are perceived in the light of ethnic minority informants' police experiences. Although a direct connection between derogatory terms and actual conduct was not confirmed through the observations, the ethnic minority informant interviews suggest that such a connection may not be discarded and such language must therefore be avoided as it may increase the social distance between the police and ethnic minorities.     

DIFFERENTIAL REINFORCEMENT THEORY EXAMINED

It is argued that the attempts of Burgess and Akers and of Adams to formulate Sutherland's differential association theory in the language of operant conditioning theory fail to preserve Sutherland's interesting insights by reducing his theory to the mere claim that criminal behavior is operant conditioning behavior. Questions are then raised about the truth of even this claim. Some attention is also given to the question of the verification of both Sutherland's original theory and the operant Conditioning reformulations of it.     

Price v. Time Revisited: The Need For Medium-Neutral Shield Laws In An Age Of Strict Construction

Journalists were alarmed when, in 2005, the United States Court of Appeals for the Eleventh Circuit denied shield-law protection to Don Yaeger, an investigative reporter for Sports Illustrated, in a libel suit by fired football coach Mike Price. Yaeger is a journalist, and Alabama's shield law offers absolute protection even when a journalist is a party to a case. The court's decision turned on the fact that Alabama's seventy-three-year-old statute does not include the word “magazine.” This article shows that this hole in the “covered medium” language of Alabama's statute is not uncommon among the nation's thirty-six shield laws and that the Eleventh Circuit's strict reading of the statute's text is not at odds with current trends in statutory interpretation. Those two facts, combined with the rise of the Internet as an important vehicle for journalism, suggest the time is ripe to scrutinize and modernize shield laws, some of which have been on the books for more than a century.     

Putting interpretation in its place

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.     

Language translation for file paths

Forensic examiners are frequently confronted with content in languages that they do not understand, and they could benefit from machine translation into their native language. But automated translation of file paths is a difficult problem because of the minimal context for translation and the frequent mixing of multiple languages within a path. This work developed a prototype implementation of a file-path translator that first identifies the language for each directory segment of a path, and then translates to English those that are not already English nor artificial words. Brown's LA-Strings utility for language identification was tried, but its performance was found inadequate on short strings and it was supplemented with clues from dictionary lookup, Unicode character distributions for languages, country of origin, and language-related keywords. To provide better data for language inference, words used in each directory over a large corpus were aggregated for analysis. The resulting directory-language probabilities were combined with those for each path segment from dictionary lookup and character-type distributions to infer the segment's most likely language. Tests were done on a corpus of 50.1 million file paths looking for 35 different languages. Tests showed 90.4% accuracy on identifying languages of directories and 93.7% accuracy on identifying languages of directory/file segments of file paths, even after excluding 44.4% of the paths as obviously English or untranslatable. Two of seven proposed language clues were shown to impair directory-language identification. Experiments also compared three translation methods: the Systran translation tool, Google Translate, and word-for-word substitution using dictionaries. Google Translate usually performed the best, but all still made errors with European languages and a significant number of errors with Arabic and Chinese.     

Language,gender and ‘reality’: Violence against women

This paper examines the theory behind and some examples of the relationships between gender, language, cognition and perception in the context of the criminal justice system. In particular, we consider the language of domestic violence and sexual assault and how words and communication styles can affect and are affected by what we think and believe to be ‘reality’. The paper illustrates how the language used to describe violence against women may operate to minimise these acts, and the dominant conversational style and female violence victims' genderlect may collide to produce evidentiary issues and a credibility gap. We argue that there is an inherent dilemma in engaging with legal constructs which continue to negate women's understandings of reality, and that the voices of female rape and domestic violence victims remain muted by the baritone ‘voice’ of the legal system.     

Protecting Earth and Space Industries from Orbital Debris: Implementing the Outer Space Treaty to Fill the Regulatory Vacuum in the FCC's Orbital Debris Guidelines

The Outer Space Treaty (OST) is the foundation of all international space regulation. It establishes space as the province of all humankind and promotes its peaceful use and exploration for the benefit and in the interests of all countries. In 2020, the FCC released its “Mitigation of Orbital Debris in the New Space Age” guidelines for commercial satellite applicants. While these guidelines appear to substantively address the risks posed by orbital debris to Earth and space industries, they fail to do so in two key areas: (1) by not adopting specific requirements for applicants to share data needed to effectively establish space situational awareness (SSA); and (2) by not requiring applicants to prepare an Environmental Assessment on low Earth orbits (LEO). This article exposes fatal flaws in how the FCC regulates satellite operator access to LEO by examining how the regulation of satellite constellations enables the creation of orbital debris and occupation of orbital shells in a manner that may compromise Earth's satellite-based information infrastructure and violate the OST, and it recommends legislative language that will ensure FCC regulations are in compliance with the OST and are sufficient for establishing SSA. Given the Supreme Court's 2022 ruling in West Virginia v. EPA, adopting such language constitutes a clear congressional authorization to protect Earth's orbital environment and helps operationalize the OST's proclamation that spacefaring activities be for the benefit and in the interests of all countries.     

The Arendtian Dread: Courts with Power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow.     

The Intensionality behind Legal Concepts and Their Extensional Boundaries: Between Conventionalism and Interpretivism

This article constitutes an attempt to reexamine a crucial issue of legal theory from the perspective of philosophy of language and of social ontology: by analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we explain how Searle's account on rules in The Construction of Social Reality constitutes an important starting point for the clarification of the old jurisprudential debate between conventionalism and interpretivism. In a nutshell, we show that Searle's framework, while strictly conventionalist, makes it possible to conceive of the distinction between the semantic content of rules (their intended purpose) and their extension, by drawing a parallel with the idea of “deep conventions” (and “essential rules”) as well as with the semantic conventions in natural language. The paper thus touches on the broader problem of the relations between legal concepts and nonlegal values (law and morality).     

Singapore's Culture War over Section 377A: Through the Lens of Public Choice and Multilingual Research

The 2007 debate over the retention of Singapore's male sodomy law provision set off a vigorous and passionate public debate reminiscent of the US culture war. However, the Singapore government's final decision reflects an interesting compromise. The law was retained, but its moral content was severely curtailed. This article critically examines this episode and explores the political dynamics driving the compromise. Enriching public choice theory on interest group capture, this article argues that the ruling party's political dominance coupled with limited but real political competition is surprisingly effective in aligning the government's position with the preference of the majority despite concerted pressure from well‐mobilized minority interest groups. Current legal scholarly work on this debate has focused on the “vigorous debate” in the English‐language forums. In this article, the examination of the contemporaneous discourse in Chinese and Malay newspapers enables a more accurate and comprehensive appreciation of this culture war episode.     

The (Dis)Advantage of Certainty: The Importance of Certainty in Language

How can legal decision makers increase the likelihood of a favorable response from other legal and social actors? To answer this, we propose a novel theory based on the certainty expressed in language that is applicable to many different legal contexts. The theory is grounded in psychology and legal advocacy and suggests that expressing certainty enhances the persuasiveness of a message. We apply this theory to the principal–agent framework to examine the treatment of Supreme Court precedent by the Federal Courts of Appeal. We find that as the level of certainty in the Supreme Court's opinion increases, the lower courts are more likely to positively treat the Court's decision. We then discuss the implications of our findings for using certainty in a broader context.     

Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.     

Blockchain Technology and the Endangered Species Called Humans

Law and Critique - The following lines aim at two goals: firstly, connecting the three blind spots (language, territory and the body) that Katrin Becker's article has identified in the analysis...     

Fair Share Housing for Managed Growth

The Mt. Laurel decision represents the culmination of judicial thinking in exclusionary zoning type litigation. Implicit in decisions striking down local land use controls found to be “exclusionary” in nature has been the notion that a community has a legal duty to accept a “fair share” of the housing needs of the region. Fair share housing now begins to take on some substance with the New Jersey court's decision. Similar language on responsibilities for regional needs may be found in the Pennsylvania Supreme Court decisions in Kit-Mar and Girsh, and in the federal district court's opinion in Petaluma.     

A Bilingual Legislature? Question Period in Canada's House of Commons

One of the goals of Canada's official bilingualism policies is to promote the equality of French and English in Canada's federal institutions. The most visible federal institution is the House of Commons, and the activity that attracts the most consistent media coverage is Question Period. This article examines the evolution of the use of French and English during Question Period in the House of Commons over time by examining a random sample of debates from the 24th (1958–62) to the 39th (2006–8) parliaments. This article finds that the use of French in the House of Commons has increased over time and discusses several possible explanations. In addition, this article tests the hypothesis that there exists an informal norm in the House of Commons which holds that responses to questions should be in the same language in which the question was asked.     

Use and Evolution of the Claims-Made Policy Form in Environmental Insurance: Selected Issues

Environmental risks have two basic components: the policyholder's obligation to clean up contaminated property and the policyholder's potential liability to third parties, including the government, resulting from environmental damage. The environmental risks for which policyholders seek coverage include environmental cleanup costs, third-party bodily injury claims, third-party property damage or devaluation claims, fines/penalties for noncompliance, or loss of market share due to lack of environmental stewardship. To be certain that all aspects of potential environmental liability are covered, an expert insurance consultant or broker should be retained to plan the program, analyze policy language and execute the purchase in the most cost effective way.     

A COMMENT. The road to court improvement in child protection cases

Judges are the key to court reform in child protection proceedings but legislative mandates cannot guarantee the requisite level of judicial commitment. Lack of full implementation of the Adoption Assistance and Child Welfare Act of 1980 demonstrates that rather than rely on statutory language, court reformers ought to increase judicial understanding of the provisions of federal law through initiatives such as cross-training. From December 1996 to June 1998, Kentucky's Court Improvement Project delivered 11 regional cross-training sessions to more than 550 judges, attorneys, social service personnel and other child advocates. Based on a statewide survey, cross-training increased significantly awareness of federal child protection objectives among the state's judges. Awareness of a policy among those expected to implement it is the first step toward implementation.     

From the Law Reviews

Although Warth v. Seldin is carefully cast in procedural terms, its significance is substantive. The real meaning of the decision is that the U.S. Supreme Court is not prepared to read into the federal constitution a limitation on suburban zoning power like that which the New Jersey Supreme Court read into the state constitution in Mt. Laurel.¹ Warth is, thus, the Court's most recent rebuff of the varied efforts to use the fourteenth amendment as a weapon against the inegalitarian consequences of metropolitan fragmentation.¹ Those who see in the vague language of that amendment a remedy for every social ill are sure to condemn the Court's passivity in the face of that malady. Yet, there is, as Paul Freund once wrote, “a morality of morality.” The mere existence of a social ill does not authorize the courts to prescribe the cure.