News item: Pope brings back “consubstantial” to Catholic Mass.
News item: Indiana removes “preponderance” from jury instructions.
What happens when honored traditions collide with contemporary preferences?
A trial judge’s job is often befuddling. We have to differentiate between peoples’ language, their values, even their competing views about what language means. So when the Pope and the Indiana Supreme Court have different views about what direction language should take, what is a trial judge to do?
Regardless of one’s faith preference – or not – this is a lively and vital conundrum. On one hand, we lawyers have plenty of cases and experiences to help us address each case and its issues. On the other hand, how do we deal with the enduring dilemma best expressed by the philosopher Ludwig Wittgenstein: “The limits of my language mean the limits of my world.” (I am now presumably the only Indiana judge ever to quote Wittgenstein.) Consider the following courtroom exchange:
Judge: “Raise your right hand.”
Witness reaches for the stars
Judge: “No, just hold it by your head.”
Witness puts hand on top of head
Judge: “No, hold it by your face.”
Witness puts hand on cheek
Judge: “Let me see the palm.”
Witness holds hand out palm up.
Judge: “Let’s forget the hand thing. Do you solemnly swear …”
Believe it or not, this exchange really took place in an Indianapolis courtroom with a native English-speaking person. Overall, it illustrates a simple gap between the interpretations of commonly used words. In law, we oftentimes call this “statutory construction.” A recent Indiana case shows how strained this can become. On one hand, the court subtitled a section by using the word “propinquity.” (This is now presumably the only Indiana court ever to use the word “propinquity” in the 21st century.) On the other hand, the irony is that the case is about contrasting interpretations of common language in a sentence. The court cleared it all up by writing:
“In any event, while the gerund ‘operating’ is nominally a noun, it is not functioning as such in section 3, but, rather, as the object of the prepositional phrase ‘of operating while intoxicated,’ which is functioning as an adjectival phrase to modify ‘conviction.’ As such, ‘conviction’ is the noun closest to the prepositional phrase beginning with ‘that occurred within … five … years’ and, in our view, is clearly being modified by that phrase as well. In summary, while we acknowledge that word order is important, there is nothing in the word order of section 3 to suggest that the phrase ‘occurred within … five … years’ is intended to modify anything other than ‘conviction.’”
Hmm … I guess there is no “on the other hand” here.
What we mean is not necessarily shown by what we say. Given the inherent enigmas present in any language, one wonders how we prevent a virtual Babel everyday in our courtrooms. Consider this famous courtroom example:
Lawyer: “And lastly, sir, all your responses must be oral. Ok? What school do you go to?”
Lawyer: “How old are you?”
We lawyers are eloquent, educated, engaging and enigmatic. We sometimes seem most betrayed by our ability. The use of language is the exercise of critique. Similarly, the decision to spare language, or say less, is equally essential to analysis. But lawyers all too often require themselves to propagate phrases and purportedly build language fortresses to protect clients’ interests. Judges, then, are all too often left with the resulting conflagration when the fortress is attacked. Some judges are literally confined to confusion. Chief Justice Joseph Weintraub of the New Jersey Supreme Court once confessed: “I don’t know what it means. I am stumped.” (Of course, he was talking about an insurance policy.) Efforts are often proposed to make the law’s language less worrisome and more humane. But, like the Catholic Church, so much of it comes from Latin, for God’s sake. Here is where we return to our opening question about tradition and current preference. Actually I appreciate Latin – like I appreciate the Mona Lisa. It’s not a dead language, really, but more like preserved in a cryogenic state if we need it. My favorite Latin legal phrase is nudum pactum (naked promise). If I ever start a band, I might name it ultra vires (beyond powers). But the everyday challenges faced by judges are squarely derived from the balance of what is meant by the language of the law and what is meant by the language of the world. My young friends often tell me they are “down with that” when they mean they like something. So when I hear it in my courtroom, I have to make the adjustment, dude. Just like when I hear “propinquity.”•
Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.