"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean—neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master—that's all." – Lewis Carroll, Through the Looking-Glass
Humpty Dumpty and Supreme Court justices may have more in common than meets the eye, at least when involved in the search for the meaning of words. Sometimes the justices take better approaches to the search than at other times, according to a lawyer-student of linguistics. And sometimes they get the answer wrong. Consider the end-of-term's job-bias ruling.
In University of Texas Southwestern Medical Center v. Nassar, a 5-4 majority imposed a high causation hurdle on employees bringing retaliation claims because, it decided, "because" in Title VII meant an employer would not have taken an adverse job action "but for" an improper motive.
The majority had imposed the same but-for causation standard to claims under the Age Discrimination in Employment Act in 2009 in Gross v. FBL Financial Services.
The majority was wrong in 2009 and again in 2013, argued Neal Goldfarb of Butzel Long Tighe Patton. Goldfarb, creator of the LAWnLinguistics blog, filed an amicus brief in the Nassar case. He told the justices: "The concept of but-for causation is not part of what the word because means. This is shown unmistakably by the evidence of how the word is actually used."
In another lifetime, Goldfarb said, "I might have gone into linguistics. I like to say it wasn't until 20 years after I got out of college that I figured out what I wanted to major in."
His interest in linguistics stems in large part from a book he read in the 1990s by one of the world's leading scientists of language and the mind. The book was The Language Instinct: How the Mind Creates Language by Steven Pinker.
"Right around the same time, I had been appointed appellate counsel in a criminal case," he recalled. "There was an issue of the jury instructions—they were ambiguous. If read one way, they were okay; if read another way, they were clearly wrong. Pinker talked about this kind of ambiguity. I used linguistics in that brief to show why the instructions likely were interpreted in a meaning that was incorrect. I continued reading about this stuff."
A linguistics issue could come up in any kind of a case, Goldfarb said. "It would be useful when you've got a text issue, for example, in interpreting a contract or where there is a grammatical ambiguity. It's not every case that has these kinds of issues. Certainly in criminal cases there are often questions, for example, about the mens rea requirement, the meaning of 'knowingly,' and how far it applies."
At the end of 2010, he took his interest in and study of linguistics to the next step by creating LAWnLinguistics. "Not about the linguistics of lawns," the site proclaims.
"It was something I had been thinking about doing for a while," he said. "It is a labor of love. Unfortunately, I don’t post as often as I would like to. There's a lot of work that goes into it. I've got to squeeze it in around my work at the firm."
At Butzel Long, he is a self-described generalist, doing litigation in a range of commercial, business and corporate disputes. He started with the firm in spring 2002. It is his second stint there; he left for about two years to work with a patent firm in Arlington, Va.
Goldfarb has filed a number of amicus briefs in the Supreme Court for clients on issues in which linguistics might be helpful.
"Theoretically, there is a right answer to what words mean," he said. "Rather than just rely on the dictionary, the more important issue is how the word is used. [Justice Antonin] Scalia tends to do that more than others. In Smith v. U.S., a 1993 case, the justices had to decide [whether] if you trade a gun for drugs, is that 'using' a firearm. The majority said it is, relying on the dictionary definition of use. Scalia dissented, saying [that] usually when someone says 'use a gun,' it means using as a weapon."
Goldfarb applied linguistic tools to the meaning of "personal" in FCC v. AT&T, the 2011 case in which the justices decided whether "personal privacy" in the Freedom of Information Act included corporations.
"I provided a lot of evidence on how 'personal' is actually used," he said. "I was able to show 100-500 most frequent nouns using personal. Overwhelmingly, they applied to people. That approach ended up being incorporated into the opinion. I think that did influence how the opinion was written.
"Unfortunately, in the Nassar case, I didn’t see any impact. I was arguing for the opposite result. [The decision] is going to come back to haunt them. There are lots of statutes that have 'because' in them and there's going to be a case where they don’t want 'because' to mean 'but for.' "
One of Goldfarb's blog posts dissected why the reasoning by the U.S. Court of Appeals for the D.C. Circuit "wasn't very good" in striking down President Obama's recess appointments to the National Labor Relations Board. His post was cited by the Department of Justice in a supplemental letter brief to the Third Circuit in that court's recess appointments case, NLRB v. New Vista Nursing & Rehabilitation.
The Supreme Court has granted review in the government's appeal of the D.C. Circuit decision, NLRB v. Noel Canning.
Goldfarb said he wasn't sure he would get involved in the Canning case. "That's a case where there is so much else clearly in play, I'm not sure how much impact this approach is going to have."
He typically looks over the "petitions to watch" feature on another blog, SCOTUSblog, to see if any issues "jump out at me" in which linguistics might play a role. "Sometimes there are cases that bring it up, other times not," he said. "It goes in waves. Also, there are cases where the issue is in there but you can't really tell from the question presented."
So far, his work in the high court has been pro bono. "It would be nice to get to the point where it is a paying part of the practice."
For now, though, he continues to read to deepen his knowledge of linguistics. And, he is learning another type of language tool in his free time.
"The last couple of years, I've been learning African drumming; it's totally different from the practice of law. I listen to a lot of music. This is the first time I've played an instrument beyond the kazoo."
Contact Marcia Coyle at email@example.com.