July 31, 2005

Bright line missing

Here's another common expression that's not in the standard dictionaries: bright line, in the sense of "clear criterion of demarcation".You won't find it in the American Heritage Dictionary (fourth edition), Merriam-Webster's Unabridged (third edition), Encarta, or the Oxford English Dictionary, but it's widely used these days. Google has 193,000 hits for "bright line", a substantial fraction of which seem to be instances of this expression. Searching today's Google News brings up 104 examples, and Technorati finds 20 blog examples in the past three days.

You could easily figure out what the expression means from these examples, if you didn't already know, and there's also a Wikipedia stub for bright-line rule:

(link) A bright-line rule is a clear-cut, easy to make decision.
In policy debate, it is a topicality standard which argues that the definition is black and white, that one can easily tell whether or not a specific circumstance meets the definition.

and you can find other suggested definitions on the web:

(link) The “Bright Line” is any legal principle that is so certain that every day citizens and businessmen can plan their activities confident of the legal standards that apply.

I wonder what the history of this expression is, and why the dictionaries have missed it.

A sample of today's Google News catch:

The Democrat is eager to make the 2004 tax and budget packages a bright-line issue between him and Kilgore.
That ability seems to mark a bright line between those species and monkeys, who, scientists have long assumed, look into mirrors and see only strangers.
It provides a bright-line definition for people coming in so they know what they can expect.
... there was one thing the MPAA drew a bright line against: "We were told in no uncertain terms that showing the kids smoking or drinking ... was a guaranteed R."
Later in the news conference, he said he fired the columnist because of the paper's "bright line" on illegal activity and "clear understanding" that the law was violated.
The McCreary opinion, however, remains very narrowly crafted and failed to draw a bright line test for displays of religious symbols on government property.

and of the last few days of blog usage from Technorati:

...the “Fair Use Guidelines For Educational Multimedia”, a document published in 1986 that attempted to establish “bright line rules” for determining copyright compliance and educational fair use legality.
Since mathematical operations and algorithms are equivalent, any attempt to draw a bright line between them will be totally arbitrary and likely to lead to absurdities, as indeed it already has.
If our ethical convictions matter enough that we feel compelled to respond to them with bright line rules, why are we undermining our ethical views with deference to utility?
Is one of those a media company and one of thos a communications company, with a big bright line between the two?
I never really said much about Grokster but what the Court did to the Sony bright-line test bothers me for exactly the reasons outlined in the Berkman brief...
It demolishes the bright line demarcating agricultural domestication in human prehistory that sustains this entire portion of Diamond's argument.

The OED does have

bright-line, (a) Physics, applied to a discontinuous spectrum consisting of bright lines resulting from radiation from an incandescent vapour or gas; (b) Photogr., applied to a view-finder in which the area of the picture appears framed by a white line;

and gives this citation for the photographic meaning:

1954 R. H. BOMBACK Basic Leica Technique iii. 39 The most compelling new feature of the Leica M.3 is..the Measuring Bright Line Viewfinder. Ibid. 40 Superimposed on the field of view is the ‘Bright Line’ contour which shows clearly the extent of the image covered by any one of the three standard lenses.

Another point of reference is from the traditional vocabulary of mechanical drawing:

1703 MOXON Mech. Exerc. 24 Drawing, or racing with a Point of hardned Steel, a bright Line by the side of the Ruler.

But I don't see any evidence that the "bright line" used today to mean "a clear criterion of demarcation" comes from any of these sources. The first place I can recall ever seeing it was in legal talk, and as you can see from the examples above, this kind of use is still common.

The earlier example of "bright line test" in the New York Times historical archive seems to be from 9/16/1987, in the transcript of Robert Bork's confirmation hearings. In response to a question by Strom Thurmond about whether his views on the First Amendment have changed, Bork responds (in part)

My views have changed for the simple reason, I was looking for a bright line test by which judges could decide which speech was protected and which was not.

The earliest NYT example of "bright line rule" is in a 3/21/1985 story about the Supreme Court ruling 7-2 that "a 20-minute roadside detention does not violate a narcotics suspect's Fourth Amendment right against unreasonable seizure:

As it did in the bullet removal case, the Court in this case stopped short of drawing a bright line between a permission detention and an illegal arrest.

"Much as a bright line rule would be desirable," the Chief Justice said, "in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria."

And in a 9/16/1986 Op-Ed piece, Bruce Babbit wrote that

The truth is that there is no bright line between training and operations and military affairs.

All of the earlier NYT examples of "bright line" that I've been able to find are either about spectroscopy, or a "bright line" of repartee in a play, or a feature of someone's clothing, or "the low bright line of dawn", or some other use having nothing to do with the notion of a clear line of demarcation. (Though there are more than 500 examples, available on line only in hard-to-read page images, and I haven't checked every one...)

I believe that I recall encountering this phrase in things written long before Judge Bork's ordeal, and it wouldn't surprise me to find that the legal use is quite old. Does anyone know when the expression "bright line" entered legal or philosophical talk, and what the original metaphor was? Why is the line "bright" rather than "clear" or "sharp" or "plain" or some other adjective?

There's an interesting take on this metaphor in a quote attributed to Tom Fiedler, the Executive Editor of the Miami Herald, in this 7/29/2005 AP story:

"The line of behavior for us has to be brightly lit. There can be no ambiguity," Herald Executive Editor Tom Fiedler told reporters Thursday.

I've always assumed that the brightness of "bright line" had to do with the reflectance of the line (in contrast to its surroundings) rather than with the overall illumination of the area.

[Update: searching on FindLaw, I found in Justice Frankfurter's concurring opinion in Wilkerson v. McCarthy, from 1949:

If there were a bright line dividing negligence from non-negligence, there would be no problem. Only an incompetent or a wilful judge would take a case from the jury when the issue should be left to the jury. But since questions of negligence are questions of degree, often very nice differences of degree, judges of competence and conscience have in the past, and will in the future, disagree whether proof in a case is sufficient to demand submission to the jury.

This strikes me as the routine deployment of a commonplace expression, not the invention of a new one, and so I'll bet there are older examples to be found. The phrase seems to me to have an 18th-century flavor, though I guess that would be consistent with a later legal origin as well.]

[I note that the online OED has a draft addition from 2003 for "(to draw) a line in the sand", with citations from 1950 onwards. And, inevitably, a Google search for { "bright line in the sand"} is not an empty one.]

[Update: Margaret Marks at Transblawg posts some further information, including several legal dictionary entries. One of them is Merriam Webster's Dictionary of Law, where I had previously failed to find it (due to the fact that the interface to this dictionary at FindLaw was confused by the quotes with which I too-trustingly surrounded the word sequence in my query). The term is indeed in the 1996 edition of Merriam-Webster's Dictionary of Law, and the gloss given there is "a clear distinction that resolves a question or matter in dispute". Dr. Marks give an entry from Garner's Dictionary of Modern Legal Usage, which includes a 1941 citation:

bright-line rule = a judicial rule of decision that is simple and straightforward and that avoids or ignore the ambiguities or difficulties of the problems at hand. The phrase dates from the mid-20th century. The metaphor of a bright line is somewhat older than the phrase bright-line rule - e.g.: "The difficult part of this case comes with regard to ... the activity of the Board of Temperance ....A bright line between that which brings conviction to one person and its influence on the body politic cannot be drawn." Girard Trust Co. v. I.R.C., 122 F.2d 108, 110 (3d Cir. 1941)./"[T]he McCambridge majority opinion ... agrees that the Kirby bright-line-rule is but a mere formalism ...." J.G.Trichter, Bright-Lining Away the Right to Counsel, Tex. Law., 6 Nov. 1989, at 26. Cf. hard and fast rule.

Noting the cross reference at the end of the entry, I can't resist pointing out that a Google search for { "hard and fast line in the sand"} is not empty, nor is { "hard and fast bright line"}, though "hard and fast bright line in the sand" is still unclaimed.. ]

Posted by Mark Liberman at July 31, 2005 10:18 AM