A stream of my current 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 Congress decided that it now had the power to invent and declare facts. Rule or principle here? The language of the majority is a unifying language? Perhaps. Seems, rather odd to me, though. Does a unifying language help people understand each other?

Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts a 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 turn this into this. Every individual is "at once the beneficiary ad the victim of the linguistic tradition into which he has been born--the beneficiary inasmuch as language gives access to the accumulated records of other people's experience, the victim in so far as it" reduces the experience such that we mistake "words for actual things."^h

Lawspeak, as I'll call it, is the unifying language of law school and law. Its use 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.¹ And no Lawspeak dictionary would be complete without amorphous terms like “reasonable” that could mean just about anything depending on its context.

The quantization of legal ideas inevitably brings about information loss; communication gaps are inherent. Which is why, to get a true understanding of law, a law student must perceive lawspeak in context. Cases cannot always “[neatly]” fall into boxes, Marshall once said. The classifications, categories, and rules judges employ are not things in themselves and should not be treated as the things but as necessary, but highly crude representations of things.

But, when law school embraces clinging onto half-baked concepts, rules--as if they were real life actual things--we become more of Huxley's victim. Inevitably, lawspeak takes on a life of its own, divorces itself from what it is supposed represent. You get lost in rules. (fix the rest of this P) Your criminal law professor will ask 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 are asked whether the uninvolved sailor bystander could be charged as an accomplice. Multiple law students chime in, restating, agreeing, and arguing about what should be a non-law. You realize that lawspeak no longer represents the things it was supposed to represent. It has become dissociated from its subject. You get a bout of morning sickness reading Stewart's opinion in Geduldig v. Aiello.

And, it is at this point of self-realization² that one becomes aware of the delicious irony that looms in the background. You begin to see lawspeak in a different light, abstract concepts stacked on top of other abstracts concepts, dominating over all that it sees. You begin to wonder how often the true function of lawspeak is to conceal and confuse, not explain. Does lawspeak function as a facade for its speakers 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: intellectual currency that should help express ideas but instead is as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas.³ 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.

And so, just as a good therapist must learn more than syntactical language to be effective, a true lawyer must learn more than lawspeak. Effective lawyers are not merely judges or law professor. A lawyer is an advocate for a client. So, law school should be teaching, among the other things it teaches, the skills that are necessary to acquire clients and serve them well. These skills are learned more often at a bar than law school.

And so we descend from Mount Justice holding our $150k tablets of knowledge. And your morning sickness clears with a simple burp. As you reach the bottom, you ditch verbosity, imprecise metaphors, opaqueness, and clever tricks and speak in a language everyone will understand--direct and to the point. And then you say what should have said in far fewer words:

Law truly is a reflection of life.

Tributaries of thought:

(h) This quote is just a small slice of a brilliant passage written in Huxley's Doors of Perception

(1) The same can be said “red” and “green” as positions on a color spectrum. Which is an interesting topic in its own right: What is “red”? Obviously, like all colors, the color red is a wavelegnth (according to wikipedia imprecisely 630–740 nm) and so its not a completelyvaucous word. But that is a pretty wide range that shows not all reds are created equal. Two people referring to red will probably be referring to distinctly different things. In some situations, like a traffic light, a large difference will not matter. In other situations, like matching clothes at a Columbia Law social function, the discrepancies in the two reds can be catastrophic. After all, there is nothing worse than mismatching the same color. Thus, when applying the word “red,” the context of the situation is critically important. In theory, a greater understandingcould be reached by using its actual wavelength, or more realistically using other qualifiers like “dark shade of red” or “blood red.”

(2) Alternative metaphor: It is like digging for three hours to find a glitzy, ornate, treasure chest only to find that it is empty inside. It doesn't really make sense here, or anywhere, but I just keep thinking about it.

(3) Modern lawspeak and financial derivatives have striking similarities. Part of the reason financial were created was to increase fluidity and make exchange more efficient. Both lawspeak and derivatives are imaginary creations—whose value, as the name would suggest in the latter, is entirely derived from a real life thing. In other words, they are not things in themselves. Neither are inherently bad, and used reasonably provide many positive benefits and improve the quality of their respective systems. But, when abused, each works against what the system is trying to do. Too much lawspeak makes (1) judicial opinions opaque, (2) allows judges to hide their (possibly unjust) reasoning, (3) makes law overly complex that it sucks away efforts that could be used to learn other law skills, (4) can promote an unbalanced way of thinking. Most of all, lawspeak makes the law inaccessible to the people it needs to protect. When abused, financial derivatives make the investment system opaque and add too much risk to the system. Both are practically incomprehensible to the common person, and, often incomprehensible to the people who use them.

edits and suggestions welcome

-- MatthewZorn - 20 Apr 2010