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By Beth Youngdale

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EXPERT WITNESS: REGIONAL REPORTS

EXPERT TESTIMONY

SWALL Bulletin
The Official Publication of SWALL: 
The Southwestern Association of Law Libraries
A Chapter of the American Association of Law Libraries

Fall 2001, Vol. 32 No. 3

EXPERT TESTIMONY

 

Language & the Law: 
A Conference Review

Head of Media and Reserve Services

University of Texas

In celebration of the acquisition of its symbolic millionth volume, The University of Texas Jamail Center for Legal Research, Tarlton Law Library hosted The Language & the Law Conference in Austin, Texas, from December 6 8, 2001. The conference brought together experts from around the world and from diverse disciplines to discuss the synergy between language and the law.

Developing a law library of a million volumes is a milestone, which the Jamail Center commemorated by acquiring a symbolic millionth volume: a rare copy of John Rastell's Exposicions of (th)e Termys of (th)e Law of England. Published in the 16th century, the title was the first English law dictionary ever printed and the first dictionary of any kind published in the English language.

Inspired by the Millionth Volume, the conference organizers gathered a group of illustrious speakers to consider the practice of legal lexicography, the role of legal texts, and the use of legal language. The conference prompted discussions about the way language influences the development of the law and the integral role that law libraries play in the process. The speakers also offered practical advice about drafting legal documents, defining legal terms and acquiring rare legal texts.

The three-day event started with a pre-conference workshop devoted to rare law books and manuscripts. Anthony Taussig, the leader of this short course, is a London barrister and one of the world's leading private collectors of rare English law books and manuscripts. The workshop covered a myriad of topics vital to collectors, including how to bid at auctions, how to negotiate with dealers and how to build a collection of rare legal texts. Mr. Taussig offered insights into the unique aspects of legal materials and the differences between institutional and private collectors. The workshop also included lively discussions about how the monetary value of a legal text may differ from its scholarly value.

THE CONFERENCE PROMPTED DISCUSSIONS ABOUT THE WAY LANGUAGE INFLUENCES THE DEVELOPMENT OF THE LAW AND THE INTEGRAL ROLE OF LAW LIBRARIES

After the workshop, the library launched the general conference with an opening reception. It welcomed the international participants with a taste of Texas hospitality, complete with mariachi music and Tex-Mex cuisine. To make visitors feel completely at home, the library arranged for them to become honorary citizens of Austin.

The formal proceedings began with an introduction and welcome from President Larry Faulkner of The University of Texas, Dean William Powers of the UT School of Law, and Prof. Roy Mersky, Director of the Jamail Center for Legal Research. Each speaker reflected on the many accomplishments of the Jamail Center and the integral role of a law library in the development of a university and a people.

Michael Widener, Head of Special Collections at the Jamail Center, next explained the full history of the Millionth Volume, a unique combination of the first edition (1523) and the third edition (1530) of Rastell's dictionary. He explained the detective work involved in discovering that over 160 years ago someone combined the pages of two partial editions to make one complete book. Mr. Widener's story further illustrated why this singular dictionary is the jewel in the Jamail Center's special collection of law dictionaries.

The next two programs highlighted the significance of the Millionth Volume by examining the history of John Rastell and the legal lexicographers who followed him. John Baker of Cambridge University prepared a paper on the life of John Rastell. Together with a presentation by Anthony Taussig about Rastell's son William, the program revealed how the Rastells' scholarship and publishing ventures helped shape English common law. Morris Cohen of Yale Law School and George Grossman of the University of California Davis School of Law followed with a history of British and American legal lexicography, exposing the debt that English-language legal dictionaries owe to Rastell's work.

During a lunchtime presentation Bryan A. Garner, President of LawProse Inc., examined the world of legal lexicographers. As the editor of the seventh edition of Black's Law Dictionary, he discussed the considerations that he believes are at the heart of each legal dictionary:

  • Whether to simply define terms or to fully explain the legal issues behind each entry;
  • Whether to include original scholarship or simply compile judicial definitions;
  • How to follow the formal rules of lexicography while defining legal terms;
  • Whether to rely on the accuracy of earlier dictionaries; and
  • How to organize material.

Fred Shapiro of Yale Law School expanded upon Mr. Garner's discussion by explaining how modern lexicographers use online databases to find early and unique meanings of words. Mr. Shapiro chose to illustrate the technique with profanity in his presentation entitled, "The Politically Correct United States Supreme Court and the -------- Texas Court of Criminal Appeals: Using Electronic Resources to Trace the Origins of Legal Terms and Quotations." While some in the audience shifted in their seats, he explained his historical research into the usage of profanity in court opinion. One difficulty with the research is that several courts replaced the words with dashes or other marks. While the dashes may diminish the impact of the controversial terms, they also make it difficult for a lexicographer to locate cases with a discussion of profanity. With the help of online databases, he was able to create a picture of the legal treatment of vulgarity throughout American legal history. The exercise provided a picture of how society has shifted in its attitude towards profanity.

Continuing with themes related to legal dictionaries, Lawrence Solan of Brooklyn Law School discussed the difficulties of using dictionaries to decide legal cases, a practice that U.S. Supreme Court Justice Scalia has repeatedly used to help interpret legislative standards. Although Mr. Solan recognized that dictionaries provide evidence about the meanings of terms, he argued that courts should not use them exclusively to decide cases. Mr. Solan, a linguist and a legal scholar, emphasized that lexicographers and judges look at definitions from different viewpoints and with different purposes. Judges use definitions to isolate the specific elements of rules in order to decide actual cases and controversies. Lexicographers, however, create short general definitions based upon common usage; they do not have the space to discuss every nuance of a term. As an example, he discussed how a definition of "carry" would not provide the subtlety to help decide why carrying a controlled substance in the trunk of a car should be legally different from carrying a gun in the same place.

Gary McDowell of the University of London examined dictionaries and legal language from the viewpoint of constitutional theory. He noted that Justice Thomas believes that it is possible to determine the original intent of the drafters of the Constitution by examining the legal dictionaries available at the time of its ratification. In support of this practice, Mr. McDowell analyzed the political thought that went into the creation of Giles Jacob's 18th century legal dictionary, a very popular text during the period of ratification. He argued that, rather than merely creating a list of legal definitions, Jacob wrote his dictionary with the intent of fully explaining the law in light of John Locke's then new theories about the role of government.

Mary Whisner of the University of Washington balanced Mr. McDowell's comments by telling the cautionary tale of how some go too far when they use dictionaries to determine statutory intent. She reported that a few fringe groups believe that the legal establishment concealed the true laws of the United States within Bouvier's 19th century law dictionary. They believe that this text contains the law from the early days of union, a golden age before the Civil War, and they feel that the law has not changed since Bouvier's time. Some have taken this theory to ridiculous lengths, arguing that driver's license laws are illegal because they do not comply with Bouvier's definition of the word "license."

Gerrald Torres of The University of Texas and Rachel Moran of UC Berkeley Boalt Hall examined the use of storytelling to advocate for the rights of the underprivileged. Ms. Moran argued that modern information technology promotes research by keyword searching and delivers the results in snippets without any cultural context. Storytelling is one way to use language to explain how the law functions within society.

Richard Weisberg of Cardozo School of Law extended the discussion of storytelling to include judicial opinions. Arguing that clear writing is connected to self-esteem, he was able to illustrate how a judge can use a well-told story to add authority to a judicial opinion.

Peter Tiersma of Loyola Law School of Los Angeles later discussed the use of legal language by examining the effect of textualizing legal transactions. He explained the basic concept by discussing the law of wills. Looking at wills written in Anglo-Saxon, he noted that they were originally considered written records of oral transactions. Now, the text of a will is itself a legal transaction. He noted that in many states a party cannot easily change a will. Instead, the formalities of the law control the transaction beyond the intent of the will maker.

The conference also addressed innovations in legal language, especially efforts to end the use of legal jargon and replace it with plain language. Christopher Balmford, the director of Australia's Words and Beyond, started the discussion by examining the pompous and abrasive tone that is common to traditional legal language. He argued that if lawyers abandon "legalese" for plain language they would improve their attorney-client relations and the image of lawyers.

Hilary Penfold, the First Parliamentary Counsel of Australia, extended the discussion of innovative usage of legal language by discussing the way that Australian legislators are using graphics in legislation to better explain the original intent behind the law. She provided examples of well-placed graphics that clarify the intent of a complicated statute.

The final program evaluated the role of law libraries in the creation and maintenance of law and language. Thomas Reynolds of UC Berkeley's Boalt Hall started the program with a history of libraries, focusing on modern law libraries. Next, Donald Dunn of Western New England College of Law explained for the audience the unique role that acronyms have played in the language of law librarianship.

The moderator who led each program and the commentators at the end each session each added valuable new insights into the issues. One of the many notable comments came from Victor Tunkel of the University of London. He closed the "Age of Rastell" program with an analysis of the role of Hebrew in the development of English law. He explained that medieval Jews in England created legally binding documents called "starras" which were only written in Hebrew. These documents were important to the development of English law if only because they memorialized contracts between Jewish moneylenders and most English landowners of the period.

As is often the case at conferences, many interesting conversations took place in informal settings after the presentations.  The Language & The Law conference offered several opportunities for such interactions. A good place to mingle with participants was the conference's exhibit hall. One exceptional exhibit was a display of the original Shepard's flags from the 19th century.

The conference included a dinner banquet with entertainment from a musical group, the Bar and Grill Singers, and a speech by Christopher Ricks. The musicians, all Austin-based lawyers, sang entertaining songs poking fun at the legal profession. Mr. Ricks, of Boston University, later transfixed the audience by interweaving the language of law, literature and Bob Dylan while considering the role of ethics in law.

The conference closed with an informal Barbecue luncheon and a speech by Sir David Williams, Vice-Chancellor Emeritus of Cambridge University. Sir David spoke about the use of legal language and postulated that the conference may have created a new multi-disciplinary field of study.

Overall, the conference was valuable to legal practitioners, judges, scholars, linguists and law librarians. By examining the role of language in law the conference provided valuable insights into the legal system and several practical tips for anyone in the profession.

To facilitate more study in this area, the Jamail Center has created a website with more information about the topic: http://www.law.utexas.edu/conference/. The site includes a video archive of the conference proceedings that may be watched over the Internet by using RealPlayer. Additionally, the Jamail Center is in the process of publishing the proceedings of the conference.

 

 

 
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