Saturday, April 29, 2006

At-Will Employee Can Still Sue for Wrongful Discharge

The Nebraska Supreme Court just ruled that at-will employees can sue for wrongful discharge in cases where the employee was fired in retaliation for reporting nursing home abuse to state regulators. The ruling was based on a "public policy exception" to the usual rule of at-will employment - and it makes sense. There is little economic justification for allowing employers to fire whistleblowers, and we don't want to encourage employees from tattling on their employers. Insider information can greatly lower the costs of regulatory (or criminal) enforcement, especially in areas where the "victims" are less able to file complaints themselves (like nursing home residents).

Friday, April 28, 2006

Some Interesting Court Cases...

I was planning to note and comment on every new case that bases its decision on a DICTIONARY instead of jurisprudence or common sense, but alas, I discovered that there were 15 or 20 every day (state and federal) and I couldn't keep up.

Here is an interesting new one from the MA Supreme Court, using old dictionaries:
Com. v. Spearin, _ N.E.2d_, 2006 WL 1085175 (Mass., April 27, 2006) (foonote 6):
It cannot be said that an Eighteenth Century "house built for publick uses"
connotes anything other than a building open to the community or public at
large. Further, nowhere in § 3 is any mention of a place of incarceration or
house of correction, facilities understood at the time to be distinct
institutions. See, e.g., G. Jacob, New Law
Dictionary (1762) (defining "house of
correction" as "chiefly for the punishing of idle and disorderly Persons;
Parents of Bastard Children, Beggars, Servants running away; Trespassers,
Rogues, Vagabonds").

Here is a fun one where the court uses a dictionary to determine the meaning of "meaning" (Wittgenstein would be proud!)
Jones Sandall Zeide Kohn Chalal & Musso, P.A. v. Beasley &
- So.2d -, 2006 WL 1083552 at *2 (Fl.App., April 26. 2006)

The Thing About Birds Learning Grammar...

Is ridiculous, I think- but for a much more thoughtful and expert discussion of this item from the news, work through the Language Log's explanation. The fact that animals can be trained (Pavlov-style) to notice variations in the patterns of noises has nothing to do with the ability to use grammatical rules to generate completely new sentences or express original thoughts. When they teach a monkey to order at Starbuck's (say, a customized mocha with a dash of hazelnut syrup and some extra room on top for stirring in more Splenda), then I'll buy it that we've crossed the human-animal barrier. The fact that birds can tell the difference between "S.O.S." and "S.S.S." in sparrow-like Morse Code - still without knowing what either signal means, or that either has meaning in the first place - basically tells me that birds can hear. Did they get a grant to prove that?

Wednesday, April 26, 2006

What I'm Reading, & Why I am Not Blogging

I've been working through several books recently. I just finished Cass Sunstein's latest book, Radicals in Robes, about the dangers of (conservative) judicial activists. Sunstein (a very prolific professor at the University of Chicago) advocates a "minimalist" jurisprudence when it comes to the Constitution - he wants judges to take baby steps, so to speak, and not do anything too drastic. (This is a long post, so click on "read full post" to get the rest.)

I'm working on a book review to submit to an academic journal about it. I have some little quibbles with him (for example, he insists on naming his jurisprudential opponents "fundamentalists," even though the religious people who actually use that term to describe themselves would not consider any of the current Supreme Court Justices to be real Christians, especially the Catholic ones). My main objection, however, is that he wants the right thing for the wrong reason. Sunstein's incrementalist philosophy is based on something that is either intellectual humility or mild agnosticism (is there a difference?); given that we can never be sure we're completely right or perfectly informed, we should avoid making drastic decisions that burn our bridges behind us. His whole paradigm seems reminiscent of 1960's-style "situational ethics," taking everything on a case-by-case basis instead of making absolute legal rules.

The better argument for incrementalism, I think, is classical, free-market economics. Stability in our society - whether in the political realm or the legal system - encourages investment and productivity. The real genius of our Constitution, ironically, is that it created the perfectly inefficient government. I know, I know, there's the stuff about rights and freedom, too, but frankly, the Framers picked a handful of rights/freedoms from a rather long menu of possibilities, giving us just enough to keep the courts busy for a few hundred years. I am not sure it would have mattered which handful of rights they would have picked off the menu - just a handful seems to be enough to keep the government tied up.

More to the point of keeping the government tied up, however, is the byzantine system of checks and balances, or separation of powers, created by having three branches of government (for the federal government, and eventually for all the states), one of which is further divided into half (the legislature), and all of which have to contend with 50 smaller version of themselves. It is very difficult to get anything done, or make any major changes, now matter how hard one tries (despite the Republicans capturing all three branches of the federal government, for example, they still can't do anything about hurricanes or killer oil prices, much less impose a totalitarian state). We can make changes, and we do, but it takes a great deal of effort to make very modest changes. It's really brilliant, from an economic point of view. It ensures that we can make progress, over time, without being able to mess up too much (or do too much irreparable harm) overnight. If I had a lot of money in 1790, I might have invested in a country like that. Stable returns, moderate risk. I might have been motivated to work hard so I'd have something to save, too.

I know everyone complains about how inefficient the government can be, but that is a wonderful thing if you have a government that is prone to mistakes. I want bad drivers to have slow cars. So, I think Cass Sunstein is right, that the Supreme Court should not do anything like trying to catapult the entire nation back to 1934 (which some activist judges want), because I think the whole point of the Constitution was to create as inefficient a government as possible, while still allowing for some progress, flexibility, and change.

Just for fun, I am also reading Richard Epstein's apparent retort to Sunstein's book (Epstein also teaches at the University of Chicago, but apparently at another end of the campus). Epstein sort of wants to turn back the clock to 1934, before the Progressives messed up our country - hence the title of his entertaining book, How the Progressives Rewrote the Constitution. I confess I like his writing style better than Sunstein's - something about Sunstein's books always seems fluffy to me - and Epstein makes up for his audacity with his clarity of thought and force of expression. An enjoyable read, but so far I think he overlooks the problems of externalities with things like pollution and even discrimination. The older I get, the less autonomous I feel - everything I do seems to effect others in ways I couldn't imagine. Oops. Thank good ness for regulations.

In my car I am reading another book (on audio CD) - Noam Chomsky's latest, Failed States. It is completely fanatical, an imbalanced, raving jeremiad against the evils of our government (at least in foreign policy) - back to about 1816, if I understood him right (basically, we've never had a just government in America, as far as he is concerned, and for some reason that doesn't make him feel like it's hopeless, like it does me). I am a huge fan of Chomsky's linguistics stuff, and I sort of appreciate radicalism for its own sake, which is the only reason I could make it past the first CD (I think I have ten to go!). Next time, I will buy the ABRIDGED version (if he digresses into that Nicaragua thing one more time, I might move further to the right just to spite him...)

Anyway, it is growing on my, to the chagrin of my oldest son, who cannot believe I will listen to someone who hates Israel so much (well, I just skip to the next track...). I am starting to think that Chomsky's hangup is that he is a Kantian moralist - he keeps talking about the "rule of universality" as the most basic, fundamental notion of ethics and morality, which sounds something like Kant's "categorical moral imperative." (It sure sounds different than Sunstein's "one case at a time" mantra). Chomsky just cannot understand how anyone could - honestly - be a utilitarian in foreign policy (like Kissinger, whom he quotes repeatedly, and who basically says we should do whatever protects American interests). I am starting to like his appeal for consistency and morality, but I find myself searching for examples of any country in the world that is not basically self-serving and self-centered in its dealings with other nations. There must be an example, but I can't think of any. Maybe Canada? I do like it that he spends as much time criticizing Clinton as he does Bush. The biggest flaw in Chomsky's book is that it is too one-sided; if America was anywhere near as bad as he portrays it, he would not be able to write and sell books like this (and certainly not every year or two!). It is a tribute to our country that we let people publish things about how awful our country is.

Next on my shelf is Ronald Dworkin's new book Justice in Robes. I cheated and read half of the introduction. He seems to be criticizing basically everybody else whose books I read.

Thursday, April 20, 2006

Interesting Law Review Article on Speech & Location

Timothy Zick has an interesting article in one of the most recent issues of the Texas Law Review entitled Speech and Spatial Acts (84 Tex. L. Rev. 581, Feb. 2006) (you will need a Westlaw password to access it). Zizk is an Associate Professor at St. John's University School of Law.

Wednesday, April 19, 2006

Courts Know Spanish Grammar, Too?

In the ongoing debate about whether judges are qualified to be expert grammarians as well, here is an interesting new case where the court basis part of its ruling on rules of Spanish grammar:

Borinquen Biscuit Corp. v. M.V. Trading Corp., _F3d._, 2006 WL 852365 at *5 (1st Cir., April 4, 2006)

Spanish grammatical rules caution against attributing a purely adjectival meaning to the term "RICA" when viewed in the context of Borinquen's logo: "Galletas RICA Sunland." A particular Spanish-language grammatical rule--the rule of concordance--requires strict relationships of gender and number between adjectives and nouns. See Gerald Erichsen, Spanish for Beginners: Noun-Adjective Agreement (2006),

Hence, Borinquen's mark would need to use the plural ("RICAS") if it were intended to serve as a grammatically correct descriptor of the noun "Galletas." We think it follows that the average Spanish-speaking consumer would be unlikely to view the non-concordant mark as a mere descriptor for the underlying product.

Tuesday, April 18, 2006

Looking It Up - Latest Rulings Based on Dictionaries

Much to the chagrin of many linguists and legal academicians, courts continue to base rulings on what they find in the dictionary. (Given that appellate courts are supposed to "interpret" the law, some have argued that this practice makes Webster's a sort of super-supreme court). Here are some appellate cases from the last few days, for those interested in monitoring this sort of thing.... (you will need a Westlaw password to access the linked opinions)

U.S. v. McNeal, 2006 WL 929357 at *2 (3rd Cir., April 11, 2006) (using "Webster's New World Dictionary" to define "confinement" for purposes of juvenile detention in an institution, which in turn affected the defendant's sentencing as an adult as a repeat-offender when he pled guilty to a firearms conspiracy).

U.S. v. Alli, _ F.3d _, 2006 WL 893620 at *6 (1st Cir. April 7, 2006) ("One dictionary defines “traffic” as “the activity of exchanging commodities by bartering or buying and selling.”Webster's Third New International Dictionary, Unabridged (1986).") (interesting stolen credit cards case)

U.S. v. Williams, _ F.3d _, 2006 WL 871200 (11th Cir. April 6, 2006) (this is an interesting case because the Court actually cites an online dictionary, and charges the defendant with a word that I cannot find in the statute itself, strangely) (“Pandering” is defined as the catering to or exploitation of the weaknesses of others, especially “to provide gratification for others' desires.” See Merriam Webster Online Dictionary , (last visited March 23, 2006). As a legal concept, pandering is most commonly associated with prostitution. In that context, pandering provisions are statutes penalizing various acts by intermediaries who engage in the commercial exploitation of prostitution and are aimed at those who, as agents, promote prostitution rather than against the prostitutes themselves. The term pandering, in some instances, is applied by Congress and the courts to the promotion of obscenity).

Harrell v. U.S., _ F.3d _, 2006 WL 895488, (10th Cir., April 6, 2006) (The parties, particularly plaintiff, use the word “allided” to describe Mr. Harrell's accident in this case. According to Webster's Third International Dictionary, an “allision” is “the action of dashing against or striking upon” or “the running of one ship upon another ship that is stationary.”) (I learned a new word!) (this was a tubing accident case)

Wilson v. Draper & Goldberg, P.L.L.C., _F.3d_, 2006 WL 861429 at *6, (4th Cir. April 5, 2006)
(defining both "incidental" and "central" - “Incidental” means “occurring merely by chance or without intention or calculation” or “being likely to ensue as a chance or minor consequence.” Merriam-Webster Collegiate Dictionary 586 (10th ed.2000). And “central” is defined as “of cardinal importance: essential, principal.”)

Minges Creek, L.L.C. v. Royal Ins. Co. of America, __ F.3d __, 2006 WL 870498 at *4 (6th Cir., April 6, 2006) (Insurance coverage case)

"Premises" is defined by Merriam Webster's Collegiate Dictionary 920 (10th ed.1997), as “a tract of land with the buildings thereon.” If the term premises is more appropriately classified as a “term of art,” however, reference to a specialized dictionary is appropriate. Black's Law Dictionary 1180-81 (6th ed.1997), is such a specialized dictionary, and it defines premises as follows: Land with its appurtenances and structures thereon. Premises is an elastic and inclusive term, and it does not have one definite and fixed meaning; its meaning is to be determined by its context and is dependent upon circumstances in which used, and may mean a room, shop, building, or any definite area. Black's Law dictionary thus recognizes that the term premises has an elastic and context-specific definition.

Multitasking Brains in Communication

Brain Communicates in Analog and Digital Modes Simultaneously
From the article: "Contrary to popular belief, brain cells use a mix of analog and digital coding at the same time to communicate efficiently, according to a study by Yale School of Medicine researchers published this week in Nature."

I found this via the cool Lingformant blog...

Years Later, We're Still Defining the "Vehicle" in the Park...

This is also from Language Log, about a recent decision by the Ohio Court of Appeals on whether a cow should be considered a motor vehicle for purposes of auto liability insurance. (Drivers hit a cow, damaged their car, and claimed the cow was an uninsured motorist so they could collect on their policy).

What If They Studied Lawyers' Brains?

Here is an entertaining post from Language Log on a new study correlating gray matter (or maybe red matter, or blue matter, depending on how one reads the study) and language acquisition skills. It's not all the fault of your high school Spanish teacher.

Blogging Again!

I have taken a long hiatus from blogging, because it became too time-consuming (or I became too obsessive about it). I am going to try it again, with more of a focus on law & language issues...Tune in regularly.