Law's "way of Words": Pragmatics and Textualist Error

• Publication year: 2022

49 Creighton L. Rev. 221. LAW'S "WAY OF WORDS": PRAGMATICS AND TEXTUALIST ERROR

LAW'S "WAY OF WORDS": PRAGMATICS AND TEXTUALIST ERROR

Harold Anthony Lloyd(fn*)

I. INTRODUCTION ................................... 222

II. "PRAGMATICS" DEFINED ......................... 225

III. DISCOURSE AND TEXT PRAGMATICS ............ 227

A. MESSAGE CONSTRUCTION AND RECONSTRUCTION ... 227

B. PRINCIPLES OF RELEVANCE, POLITENESS, AND BALANCE ........................................ 235

C. MESSAGE CLARIFICATION AND ELABORATION ....... 237

D. DIRECTION AND COMPASS ......................... 237

IV. INTERPRETING LEGAL TEXTS: STARTING POINTS ............................................ 239

A. "TEXTUALISM" DEFINED .......................... 239

B. FINDING OPERATIVE TEXT ........................ 242

V. INTERPRETING LEGAL TEXTS: STAGES, RELEVANCE, POLITENESS, AND BALANCE ...... 249

A. STAGES AND VARIATIONS ......................... 249

B. REMEMBERING STAGE EIGHT: RECONSTRUCTION .... 252

C. INDIVIDUAL AND CORPORATE LEGAL TEXTS ........ 252

D. PUBLIC LAW TEXTS .............................. 253

VI. INTERPRETING LEGAL TEXTS: CONTEXT AND ITS TYPES ......................................... 254

A. COGNITIVE CONTEXT ............................. 255

B. PHYSICAL AND TEMPORAL CONTEXT ............... 255

C. SOCIAL, CULTURAL, AND HUMAN CONTEXT ......... 257

D. DISCOURSE CONTEXT ............................. 258

E. TEXTUAL OR INTERNAL CONTEXT .................. 259

F. PURPOSE CONTEXT ............................... 260

G. POLICY CONTEXT ................................. 261

H. CONTEXT FLUX .................................. 262

VII. INTERPRETING LEGAL TEXTS: CODING AND COMPASS IN MORE DETAIL ...................... 264

A. ENCODING ERROR ................................ 264

B. VAGUENESS ...................................... 266

C. AMBIGUITY ...................................... 268

D. INDETERMINACY .................................. 271

E. ANAPHORA AND CATAPHORA ...................... 272

F. ELLIPSIS ......................................... 274

VIII. FURTHER MEANING BEYOND THE MESSAGE: GAPS AND OMISSIONS ............................ 274

A. ILLUSORY GAPS .................................. 276

B. REAL GAPS ...................................... 276

C. ADDRESSING POSSIBLE GAPS AND OMISSIONS ...... 277

IX. IMPLEMENTIVES ................................. 278

A. "MICRO-IMPLEMENTIVES" ......................... 278

B. "MACRO-IMPLEMENTIVES" ......................... 279

X. CONCLUSION ..................................... 281

XI. APPENDIX ......................................... 284

OTHER PRAGMATIC CONSIDERATIONS FOR LEGAL TEXTS ............................................. 284

A. PRESUPPOSITIONS ................................ 284

B. PRAGMATIC PRESUPPOSITIONS ..................... 285

C. ENTAILMENTS .................................... 285

D. UNSTATED PREMISES ............................. 287

E. ADDITIONAL BACKGROUND CONSIDERATIONS ....... 288

F. DEIXIS .......................................... 289

I. INTRODUCTION

"[T]here is often a divergence between what a person says and what she means, between the meaning of the linguistic expression she uses and the meaning she seeks to communicate by using it."

-Robyn Carston(fn1)

"Meaning is inevitably dependent on context."

-Restatement (Second) of Contracts(fn2)

"Pure applesauce."

-Justice Scalia(fn3)

Two priests fluent in English and Latin live in a jurisdiction where wild horses may be legally seized and sold. The first priest emails the second priest: "If you seize the wild horse known as Sind, hold him for me, and send me notice that you have him, I'll pay you $1000.00." The second priest promptly seizes Sind, promptly puts him in a holding pen for the first priest, and promptly emails the first priest: "Peccavi," which is gibberish in English but means "I have sinned" in Latin.(fn4) Does the first priest now owe the second priest $1000.00? Neither an English nor a Latin dictionary provides the answer. Instead, we would look for the answer in how we use (and even make sport of) language. Is the answer meant as a phonetic equivalent (after translation) of "I have Sind"? If so, does that count as meeting the notice requirement? Is it perhaps an even richer answer of "I have sinned and have Sind"? Each of these possibilities shows us that speaker meaning can differ from linguistic meaning. Since such divergence can occur, text alone is not going to give us any kind of real-world answer to our contract question here.

Three lawyers have graduated from the same law school. The first lawyer emails the second lawyer asking whether he would recommend the third lawyer's firm to handle a certain complex legal matter. He emails her back a one-sentence reply: "Well, that firm generally has pretty easy client parking for a downtown firm." In interpreting this one-line answer as a proficient language user would, the second lawyer does not limit herself to the text of the unasked parking question. She knows it would be a waste of her time to parse the words of that text or look them up in a dictionary. Instead, she notes the obvious failure to address the competence of the firm and takes this as a polite non-recommendation of the firm. She understands that in real-world communication we value both relevance and politeness, i.e., that we want to be relevant but we also do not want to offend a mutual friend.(fn5) By grasping the interplay of these values, she makes sense of this facially-irrelevant response. In other words, she also realizes that speaker meaning can diverge from linguistic meaning.

One person pens a letter to another. The letter contains various statements communicating the writer's love for the addressee. The letter is mailed in an envelope covered with drawings of hearts and the word "love." The sender uses a postage stamp picturing cupid and mails the letter from a place called Great Love. The envelope therefore bears a "Great Love" postmark. In evaluating the "text" of the letter, do we also include the envelope? The postage stamp? The postmark? As this example shows, in addition to looking for meaning in text, we must also look for and agree upon the extent of the text in any case. Do we look for the text first and then turn to interpretation? Or can we really agree on the text without some understanding of the meaning? Would the question of including the stamp and the postmark arise if we did not consider this a love letter? All this again brings us back to what people do and find acceptable in the real world of language use.

Turning to that real world, Congress has passed the Affordable Care Act(fn6) (the "ACA") hoping to expand healthcare and lower costs.(fn7) Among other provisions, Section 1311 of the ACA provides that states "shall" set up "Exchanges" although Section 1321 recognizes that a state may elect not to do so.(fn8) Additionally, Section 1321 provides that if a state does not elect to set up an Exchange, the Department of Health and Human Services "shall . . . establish and operate such Exchange within the State[.]"(fn9) Finally, Section 1401(a) of the ACA provides subsidies for coverage "enrolled in through an Exchange established by the State under Section 1311[.]"(fn10) Since no express mention is made of federal Exchanges in the last provision, are subsidies therefore available only for Exchanges set up by the states themselves? Is the relevant text here just Section 1401 or are Sections 1311 and 1321 also part of the relevant text? In any case, can text alone give us an answer to this question or must we, as in the previous examples, look beyond text to context and the way we actually use language in the real world? The Supreme Court has recently ruled that subsidies are available for federal Exchanges.(fn11) But does this result square with how language works in the real world? We will return to this ACA example at various points throughout this article.(fn12)

As I have maintained in Exercising Common Sense,(fn13) good legal skills require knowledge of the humanities; the linguistic and philosophy of language issues raised here provide a good example.(fn14) Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the vast insights provided by linguists and philosophers of language. I hope this article will help move more opinion in that direction and as a result lead to more sensible lawyering and judging.

To this end, I will explore what linguists and philosophers of language call "pragmatics" (i.e., how language works in use as more particularly defined below).(fn15) I will provide an overview of the highlights of such pragmatics thereby hoping to outline a basic toolbox needed to perform pragmatic analysis of legal texts. Not all the tools will be needed in any particular case but knowledge of all such basic tools is needed for any general fluency in pragmatics. When I speak of "interpretation" in the overview that follows, I speak of the process of determining meaning.(fn16) As we will see time and again as we try to determine meaning, speaker meaning can differ from linguistic meaning and thus from the literal or more limited meaning of text.

II. "PRAGMATICS" DEFINED

By "pragmatics" I mean the study of how language users actually use and interpret words and other signs in...