February 21, 2004

On not avoiding negatives

Recent posts by Geoff Pullum and Mark Liberman have reminded me of one of my favorite topics from a course on Language and the Law that I taught some years ago. A penchant for sentences with multiple negatives is one of the things that make jury instructions notoriously hard to understand. (On the general topic, see the classic article by Robert P. Charrow & Veda A. Charrow, `Making legal language understandable: a psycholinguistic study of jury instructions', Columbia Law Review 79/7:1306-1374, 1979.)

Here are two examples from California State jury instructions, the model for jurisdictions around the country. The first uses avoid, which, as Geoff and Mark have observed, is highly problematic for current English speakers; the second has three negatives, one not and two negative prefixes, mis- and un-.

  1. ...If such a result from certain conduct would be foreseeable by a person of ordinary prudence with like knowledge and in like situation, and if the conduct reasonably could be avoided, then not to avoid it would be negligence.

  2. Failure of recollection is a common experience and innocent misrecollection is not uncommon.

And here's an example of how confusing negatives can be in actual discourse, at least in a hostile ``conversation'' when Grice's Cooperative Principle is not operating. Below is a bit of the transcript of a trial (Pittsburgh, PA, March 1984) in which the prosecutor is cross-examining the defendant:


Now I ask you, is it not true that you weren't at home the night of the robbery?




Were you not, in fact, at the bar?


I already told you I was at home!

But my all-time favorite example of confusing multiple negatives is in the 1974 impeachment debate in the House Judiciary Committee. I don't know how many of the Congressmen in this debate are lawyers; there's some amusing research that indicates that not even lawyers understand legalese, though they all think they do.

Below is the House Judiciary Committee debate on unless in the House of Representatives, Committee on the Judiciary, Washington, DC; it's from the Debate on Articles of Impeachment of President Richard M. Nixon, and it took place on Friday, July 26, 1974. (I got this from Nuel Belnap in 1983. I've omitted Nuel's logical "if...then's" here -- you can find them on the web by googling a chunk of the debate -- but note that Latta's first two reformulations, Mann's formulation, and Dennis's second reformulation are in direct contradiction to McClory's motion. At least, I think I've got that right....)

The committee met, pursuant to notice at 11:55 a.m., ... Rep. Peter W. Rodino, Jr. (Chairman) presiding.

Mr. McCLORY: I have a motion at the clerk's desk which I have distributed among the members, Mr. Chairman.

CHAIRMAN: The clerk will read the motion.

CLERK (reading): Mr. McClory moves to postpone for 10 days further consideration of whether sufficient grounds exist for the House of Representatives to exercise constitutional power of impeachment unless by 12 noon, eastern daylight time, on Saturday, July 27, 1974, the President fails to give his unequivocal assurance to produce forthwith all taped conversations subpoenaed by the committee which are to be made available to the district court pursuant to court order in United States v. Mitchell ...

Mr. LATTA: ...I just want to call (McClory's) attention before we vote, to the wording of his motion. You move to postpone for 10 days unless the President fails to give his assurance to produce the tapes. So, if he fails tomorrow, we get 10 days. If he complies, we do not. The way you have it drafted I would suggest that you correct your motion to say that you get 10 days providing the President gives his unequivocal assurance to produce the tapes by tomorrow noon.

Mr. McCLORY: I think the motion is correctly worded, it has been thoughtfully drafted.

Mr. LATTA: I would suggest you rethink it. ...

Mr. MANN: Mr. Chairman, I think it is important that the committee vote on a resolution that properly expresses the intent of the gentleman from Illinois (McClory) and if he will examine his motion he will find that the words `fail to' need to be stricken and ...

Mr. McCLORY: If the gentleman will yield, the motion is correctly worded. It provides for a postponement for 10 days unless the President fails tomorrow to give his assurance, so there is no postponement for 10 days if the President fails to give the assurance, just 1 day. I think it is correctly drafted. I have had it drafted by counsel and I was misled originally, too, but it is correctly drafted. There is a 10-day postponement unless the President fails to give assurance. If he fails to give it, there is only a 24-hour or there is only a 23 and a half hour day (sic).

Mr. RANGEL: Mr. Chairman?

Mr. McCLORY: I think the members understand what they are voting on.

Mr. DENNIS: Will the gentleman yield to me?

Mr. RANGEL: Mr. Chairman --

Mr. DENNIS: The gentleman yielded to me, Mr. Rangel. Excuse me. I know you did not realize that fact.

Mr. RANGEL: No, I did not.

Mr. DENNIS: He did not. I realize that. What Mr. Mann says and what Mr. Latta says is true. In my opinion. It would be much better drafted if you said `provided that' or `unless he does not', or something, but I think nevertheless, the gentleman from Illinois is correct, that although this is a very backhanded way of stating it, it does in fact state it because it says he gets 10 days if he does not -- well, it is a backhanded way of stating what the gentleman is trying to state. It could be improved but what he is doing is nevertheless there.

Mr. MANN: I guess we can settle for it as long as we all understand it, Mr. Chairman.

CHAIRMAN: Will the gentleman yield?

Mr. RANGEL: Mr. Rangel, I think this motion itself has provided sufficient delay and I move the question.

CHAIRMAN: The question is on the motion of the gentleman from Illinois. ...

CLERK: Mr. Chairman, 11 members have voted aye, 27 members have voted no.

CHAIRMAN: And the motion is not agreed to. ...

Posted by Sally Thomason at February 21, 2004 11:49 AM