53
votes
Does “and” mean “and”? Or “or”? The US Supreme Court will decide.
Link information
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- Authors
- Daniel King, Rachel de Leon, Henry Carnell, Arianna Coghill, Lyric Aquino, Abby Vesoulis, Julia Métraux, Eamon Whalen, Kylie Mohr, Dan Gearino, David Corn, Ali Breland
- Published
- Oct 11 2023
- Word count
- 1682 words
It's actually a really good article; and surprisingly interesting. But the title made me roll my eyes at first. It's a bit of a clickbait title.
I was thinking the same thing, but after reading the article, it seems like a legitimate description of what's going on.
When the law says "if (A); (B); and (C)," should it really be interpreted as "if (A); (B); or (C)?" Apparently the majority of judges say it's "or" even though the law doesn't say that. I can't say that the title is sensationalist when this is legitimately the issue at hand.
If it's too onerous to write laws without grammar mistakes that significantly change the meaning, maybe we should be using more bullet points and tables instead of natural language in our laws to make things clearer. The example here results in a really tortured "sentence" to describe what the law means anyway, to the point that it feels almost intentionally obfuscated.
I think the specific phrasing used in the law is more ambiguous, it is "the defendant does not have a, b, and c," which we can easily read either as "the defendant does not have all three" but also as "does not have a, does not have b, and does not have c. The latter would be the "or" interpretation.
The "not" with multiple clauses makes it tricky, because then it brings into play De Morgan's laws. In Boolean logic, mixing negations with subclauses can very easily flip an "and" to an "or" and vice versa.
If the "not" is meant to bind to all the subclauses:
then by De Morgan's law, it is equivalent to:
which is how it is being contentiously construed here.
English already has ‘nor’ for the exclusive case. Person does not have A, B, nor C. Meaning person does not have A, does not have B, does not have C. ‘And’ is an inclusive term only, it is erroneously used for exclusive cases.
Even better than bullet points and tables: flowcharts. Write laws in the way that enhances clarity, not the way that is only stuck to because "this phrasing has been tested in courts"
Yes it's sad that publications feel the need to do this, but I suppose they attract fewer readers if they don't.
Sounds like Programmers need to write these laws. Remove the ambiguity.
IF (4PT && 3PT && 2PT)
THEN uh oh
ELSE whew
Or
IF (4PT || 3PT || 2PT)
THEN uh oh
ELSE whew
But I'm sure some language operators can make that as ambiguous as all heck.
As a lawyer, I think it would be great if some programmer decided to create decision trees for the statutes and case holdings.
As a programmer, I recommend including hypothetical examples that clarify edge cases. That’s what we do when we write tests. One carefully chosen example could have clarified this law.
Concrete examples are usually easier to understand than logical abstractions.
Interesting. This is exactly how attorneys use case law in legal analysis going forward. A judge makes a ruling about how a law or regulation applies in one conflict. If that ruling is binding in your jurisdiction, that tells you how future cases are likely to play out. Rulings in other jurisdictions can be 'persuasive' if they are well written and sometimes judges take guidance horizontally or from below in other districts.
Catala is an attempt to create a "legislative literate programming language", though it's geared towards tax law annotations.
You probably couldn't create something quite that concrete for less structured types of law, but I can see something like what you've described being a nice reference to help start one's research.
There would be some real challenges to getting initial contributions and moderating something like that though.
Somebody wrote the Constitution of Japan in Prolog. I guess the cool thing about writing laws in code is that you can write test cases for it to test compatibility with existing laws. And you can partly automate the interpretation of the law. But courts would still have to determine the facts of the case, which could introduce some ambiguities.
Also inclusive and exclusive
Give me numbers 1-10
... Do I return 10?
Oh boy yeah. Some language are inclusive and exclusive too. But that would be known before, and easy to account for. Unlike English where you could say give me a number between 1 and 10 and it could be either.
Well, the numbers between 1 and 10 are 2, ..., 9. That's pretty obvious to me. But, yeah, if someone says "pick a number between 1 and 10", they always mean "... including 1 and 10".
Natural language is just not made for anything that requires precision, like law or math.
Do they not teach [1, 10) vs. [1, 10] in schools anymore? That's how such ranges should be displayed. That or 1≤n<10.
The latter is better for law I think, everybody with a third grade education knows how the alligator’s mouth works. Or, just explicitly saying “inclusive” or “exclusive”.
I actually just taught my Honors Geometry class last week about disjunctions and the issues of how they work in everyday language… this will make an excellent real-world example to start the day off tomorrow! Thanks!
It’s especially interesting to see commentary about how “things this weird could only happen in law”… hopefully that’ll help emphasize to my students how what we’re learning can be relevant in unexpected ways in their lives.
Thank you for being a teacher! Me one that brings real life examples in. Those interactions really make learning more interesting.
This might be a dumb question, but can't the court simply ask the legislators for clarification? The First Step Act was signed into law in 2018. Surely some of the legislators are still alive?
That's an issue of how the court is supposed to decide law, AKA judicial philosophies. There's all sorts of debate there. Should judges look at the plain meaning of the text? If they do use context, what's valid? The 19th century meanings? The intent of the legislators? It gets messy fast.
Take, for instance, the 7th Amendment. It grants the right to a jury trial if and only if the amount in controversy is greater than... $20. If we were to take the meaning then, then maybe we would look to inflation - so, well over $500 in today's money. If we were to take intent, maybe we raise the bar even higher, as even the cost of making suit can rival $500.
But this is all digression. The Court won't ask the legislators directly. It may be that they can't (truthfully, don't know there - I hazard a guess no), but the closest they'll get might be soliciting amicus briefs (basically, arguments or information from 3rd parties). The Court would look at the minutes of the legislative session, the preamble of the Act, the stated intent from the authors if published, etc.
And nothing is stopping the legislature from passing a law amending the wording of the statute to clarify it.
There may be no fact of the matter about what the legislature meant. The legislators might disagree on the meaning, or would have if it were brought to their attention.
It seems obvious to me that it’s intended as “or”. They are enumerating a set of individual conditions that would disqualify a person from relief. They are all coherent if you read them as have an underlying theory of equivalence:
It is incoherent when taken as a required union of conditions. First of all, there’s the redundancy brought up in the article — clauses 2 and 3 make clause 1 plainly unnecessary.
There’s also no logic to making such a grouping — would it make sense to grant relief to a defendant with a dozen violent 2-point offenses because they didn’t also have a single 3-point offense? Or to grant relief to a defendant with a dozen violent 3-point offences because they didn’t also have a single violent 2-point offense?
In a perfect world, with a functioning Congress, the court could and probably should rule according to the plain text of the law as it is written, and Congress could fix that language with a follow-up bill.
In reality, Congress will do nothing, regardless of how the court rules. I think in this case the court should still stick to the actual text of the bill, even if it isn't what Congress intended. As usual, the real problem with court rulings is negligence by Congress.
if "and means and", the outcome is "a defendant is denied relief if all of A, B, and C are true"
if "and means or", the outcome is "a defendant is denied relief if any of A, B, and C are true"
as the article notes:
there is a guideline in interpreting law called the surplusage canon:
following that canon, it's very clear the "and means or" interpretation should apply.
if the "and means and" interpretation applied, then section A would be surplus. if B and C are true for a given defendant, then A is also true.
I feel like this applies equally:
As I say elsewhere in this thread there’s no logic to the “and” interpretation.
My understanding was always that "and" means "in addition to" while "or" means only one of the options listed.
I strongly lean in the case they discuss that it means you have to have all three. It's in context. When talking about qualifying for something, "and" implies you want all of those things to be true. Where as in the example the article uses of do not smoke, drink, and eat is a list of things you should not do ( meaning that you don't choose one you don't do, you don't do any of them). And I'd argue that they really should use an "or" there in that statement cause I'd say techically it is saying don't do the combo of those (but in context people would realize that is a list of things you should not do). So I'd say even if we are ignoring context, the example the article used to illustrate the confusion "and" was used wrong and should have used "or" in the sentence. But people understand the context so well they don't question it and seems silly to hink it would be that you can do one of three but not all in combo.
Do you mean that
I am arguing that the example the article uses of do not smoke, eat, and drink should have been do not smoke, eat, or drink (but because people in general recognize they are giving a list of things not to do instantly assume it's don't do any of those things, not don't do those in combo). I think if you are giving a list of things some one could (or could not do) it should be "or". "And" is used when you are including all things together, it's an additive. So in the case the court is arguing, I lean that the person has to qualify for all of those things on the list, not one of those things (They would use "or" for that). Unless some one sloppily wrote that but usually they try to be careful in wording those things.