Congress is a “They,” not an “It”: Legislative intent as oxymoron

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S026144480000464X

Language of the law

This thesis concerns fallacies in judicial interpretation. The central contention of this thesis is that judges commit certain fallacies when interpreting language and that it is possible to detect such fallacies and arrive at alternative, non-fallacious interpretations when they occur. An instance of judicial interpretation is fallacious when it takes into account an irrelevant consideration and it is most likely that a different result would have been reached if that consideration had been omitted, or when it omits a relevant consideration and it is most likely that a different result would have been reached if that relevant consideration had been taken into account. The thesis identifies two specific fallacies which involve judges introducing an irrelevant consideration and usually involve judges omitting relevant considerations. These two fallacies are errors of categorisation, and occur when judges make an interpretive decision on the basis of the irrelevant consideration of the verbal category to which an item can be assigned rather than the relevant considerations which determine the legal category to which it should be assigned. These two fallacies are detected by assessing whether an instance of interpretation is merely based on the verbal category to which an item can be assigned or whether it is justified by relevant considerations. Alternative, non-fallacious interpretations are arrived at by introducing any relevant considerations and omitting any irrelevant considerations.

Fallacies in Judicial Interpretation

The functional usefulness and need of drafting manuals as a method of harmonization of drafting conventions at the national level has often been linked to the civil versus common law legal traditions. This article places the balance between the virtue of homogeneity of style of national laws (and thus certainty in the law) and dynamism of drafting conventions as legal norms (and hence modernization and approachability) beyond the civil versus common law divide. If drafting is a discipline of law, then it is a form of phronesis. And the series of subjective choices of appropriateness made by the drafters in the course of their work can only be assisted by compilations of drafting conventions that set the foundations of quality in legislation in a theoretical/principled, rather than prescribed, manner. Thus the future of manuals lies in their nature as compilations of principles of legisprudence and not in their regrettable past as a series of commands on techniques and technicalities. This may serv...

Drafting Manuals and Quality in Legislation: Positive Contribution towards Certainty in the Law or Impediment to the Necessity for Dynamism of Rules?

This article builds on the concept of “writing as thinking” by describing an in-class, cumulative, peer-writing exercise that helps foster reflexivity. Reflexivity is understood as a process of seeing and a process of being. To be reflexive means that we are fully conscious of the lenses through which we view the world. It suggests that we understand both our situationality and our positionality. In this sense, reflexivity is an essential component of the sociological imagination. Three themes of reflexivity commonly arise from this exercise: developing reflexivity, reinforcing reflexivity, and resisting reflexivity. These themes are discussed and illustrated with full-length excerpts of students’ work.

Scribo Ergo Cogito: Reflexivity through Writing

https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2509&context=facpub

The Diseases of Legislative Language

/pdf/the-electronic-searching-of-law-4v6f302j1q.pdf

The Electronic Searching of Law

/pdf/products-liability-how-good-does-a-product-have-to-be-5gc1ojhycw.pdf

Products Liability: How Good Does a Product Have To Be?

/pdf/statutory-interpretation-a-peek-into-the-mind-and-will-of-a-1gr8mz2b8x.pdf

Statutory Interpretation: A Peek into the Mind and Will of a Legislature

/pdf/legal-drafting-writing-as-thinking-or-talk-back-from-your-104pd8ax6e.pdf

Reed Dickerson

Papers

The Diseases of Legislative Language

The Electronic Searching of Law

Products Liability: How Good Does a Product Have To Be?

Statutory Interpretation: A Peek into the Mind and Will of a Legislature

Legal Drafting: Writing As Thinking, or, Talk-Back from Your Draft and How to Exploit It