A stream of consciousness

As an amendment to the 2006 The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts. So what is the rule or principle here? The language of the majority is a unifying language. Seems, rather odd to me. Does a unifying language help people understand each other?

Lawspeak is the unifying language of law school and law. Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. For fans of demonstration, language helps me turn this into this. In this sense,“lawspeak” is a language too. Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on a spectrum of judicial review. (fn). And then, there are the empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on its context.

Whenever we quantize ideas, information loss and communication gaps are inherent. Which is why, to get a true understanding of law, the law student must see lawspeak in context. (fn) No competent Constitutional Law professor should breeze past Marshall's dissenting words in San Antonio v. Rodriguez reminding its readers that cases do not always “[neatly]” fall into boxes. Marshall's words here serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but highly crude representations of things or principles—approximations. We invent lawspeak to facilitate communication, but in the process sacrifice precision in understanding.

Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent.

And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for judges to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a perverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas. And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.

But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Which means law school in its current manifestation is not producing lawyers. Being an advocate for a client is not just about reading and interpreting law. It is about addressing client needs that almost always stretch beyond reading and interpreting statutes and caselaw. Or it can be about finding a non-lawspeak way to sell the fools gold back to the vendor. Being a client's advocate, requires knowledge of a different language: the language of society, the very thing lawspeak is supposed to represent.

And so we descend from Mount Justice holding these expensive tablets of knowledge. And as you reach the bottom, you leave behind your verbose language, silly and imprecise metaphors, opaqueness, and clever tricks that initially helped create an understanding--but are now simply in the way of any discernable meaning. You stop editing and talking in lawspeak (because you realize it is just crap). And then you speak in a language everyone will understand--direct and to the point. You say what should have said in far fewer words:

It's all absurd.

FN: The same can be said “red” and “green” on a color spectrum.

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