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?

Lawspeak, as I'll call it, 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 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.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 ideas brings about information loss and thus communication gaps are inherent. Which is why, to get a true understanding of law, a law student must perceive lawspeak in context. I think of Marshall's dissenting words in San Antonio v. Rodriguez reminding its readers that cases cannot always “[neatly]” fall into boxes. Marshall's words are a critical reminder that the classifications, categories, and rules judges employ are not things in themselves and should not be treated as the things. Rather, these categories exist as necessary, but highly crude representations of things or principles—approximations. Our perception of the thing. Lawspeak works facilitate communication, but in the process, we 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 things take on lives of their own, divorcing themselves from the things they are purported to represent. You can get lost in rules. 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 may begin to see lawspeak as it really exists, abstract concepts stacked on top of other abstracts concepts, dominating over all that it sees. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal and confuse, not explain. Lawspeak becomes 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: 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.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.

But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Being an advocate is not just about reading and interpreting law but also about how to communicate law. These skills are learned more often at a bar than law school. But a lawyer is not just an advocate, but a client's advocate. Which means law school should be teaching, among the other things it teaches, the skills that are necessary to acquire clients and serve them well. 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 our $150k tablets of knowledge. And your morning sickness clears with a simple burp. As you reach the bottom, you leave behind the verbose language, silly and imprecise metaphors, opaqueness, and clever tricks that initially helped create an understanding but soon degenerated into utter confusion and misunderstanding, sitting 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. And then you say what should have said in far fewer words:

It's all fucked up.

Tributaries of thought:

(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