November 02, 2005

Legal meaning: the fine print

At the end of my post on Antonin Scalia's philosophy of language, I asked "do obvious typos or malaprops ... have the force of law?" In response, a Michigan attorney sent in an example taken from a Michigan statute requiring landlords to provide tenants with certain information. Part of the requirement is an anti-fine-print provision, worded as follows:

"The notice shall include the following statement in 12 point boldface type which is at least 4 points larger than the body of the notice or lease agreement ..."

On the face of it, this requires that leases be printed in 8 point type or smaller. My correspondent's comment:

Tenants can sue landlords for leases that fail to comply with the law. No court would grant tenants relief on the grounds that their leases are in print large enough for them to read. Courts certainly recognize that there can be mistakes in legislative drafting.

The mistake in this case is significantly more subtle than a typographical error or lexical substitution. I'm frankly puzzled about what the drafters had in mind here. Perhaps they meant that the notice must be at least four points larger than the body of the document, and in boldface, and in any case no smaller than 12 point type?

Anyhow, the point is that courts are apparently allowed to reason along lines like "the plain meaning of the words of the statute is not something that its drafters could plausibly have intended; therefore the legal meaning of this passage is not what it literally says". Is this true as a generally-accepted principle of judicial interpretation? If so, it seems to be a partial refutation of Justice Scalia's theory of legal meaning:

What is needed for a symbol to convey meaning is not an intelligent author, but a conventional understanding on the part of the readers or hearers that certain signs or certain sounds represent certain concepts. In the case of legal texts, we do not always know the authors, and when we do the authors are often numerous and may intend to attach various meanings to their composite handiwork. But we know when and where the words were promulgated, and thus we can ordinarily tell without the slightest difficulty what they meant to those who read or heard them.

We can indeed "tell without the slightest difficulty" what the words of the Michigan statute "meant to those who read or heard them" in the time and place "where the words were promulgated" (a few years ago, in the American midwest). The plain meaning is that the body of a lease must be in 8 point type or smaller. Perhaps on Scalia's view the law means exactly that, until and unless the legislature acts to amend it.

Here's a larger context for the quoted statute:

554.603 Security deposit; notice.

Sec. 3.

A landlord shall not require a security deposit unless he notifies the tenant no later than 14 days from the date a tenant assumes possession in a written instrument of the landlord's name and address for receipt of communications under this act, the name and address of the financial institution or surety required by section 4 and the tenant's obligation to provide in writing a forwarding mailing address to the landlord within 4 days after termination of occupancy. The notice shall include the following statement in 12 point boldface type which is at least 4 points larger than the body of the notice or lease agreement: “You must notify your landlord in writing within 4 days after you move of a forwarding address where you can be reached and where you will receive mail; otherwise your landlord shall be relieved of sending you an itemized list of damages and the penalties adherent to that failure.” Failure to provide the information relieves the tenant of his obligation relative to notification of the landlord of his forwarding mailing address.


Posted by Mark Liberman at November 2, 2005 07:13 AM