The new thing is how Google can auto-generate AI podcasts,
with two chipper and eager AI voices discussing whatever PDF’s you’ve uploaded
into a Google Notebook LM folder.
Here, I tried to bore the two voices to death with an
obscure Harvard Law Review article. Slocum
& Tobia 2023:
https://harvardlawreview.org/forum/vol-137/the-linguistic-and-substantive-canons/
The Linguistic and Substantive Canons...
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Here is a link to the streaming, two-voice AI podcast. (Open access but may require Google sign
in).
https://notebooklm.google.com/notebook/ad3b6f8d-bd29-44a6-a810-c36c9bcbd972/audio
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And below is an TRANSCRIPT of the AI PODCAST about SLOCUM.
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Brenda:
Hey, there. Ready to unlock some secret legal code.
Adam:
Ooh, secret legal code. I like the sound of that.
Brenda:
We're talking about linguistic and substantive canons.
Adam:
Okay.
Brenda:
Those interpretive tools courts use to decipher what laws
actually mean.
Adam:
Right.
Brenda:
Think of this deep dive as your crash course in legal
linguistics without the law school tuition.
Adam:
Yeah, it's true. These canons are often seen as the
hidden machinery of the legal system, shaping how laws are understood and
applied. We're diving into a fascinating academic response from the Harvard Law
Review Forum, which offers a fresh take on these interpretive tools.
Brenda:
Okay. Let's unpack this.
Adam:
Okay.
Brenda:
So traditionally, we've got these two camps, linguistic
canons and substantive canons.
Adam:
Right.
Brenda:
It's the classic battle between language nerds and policy
wonks.
Adam:
Exactly. Linguistic canons are all about understanding the
literal meaning of words, like dictionaries and grammar rules.
Brenda:
Right.
Adam:
On the other hand, substantive canons are more like policy
safeguards, often used to rein in overly-broad interpretations of a law.
Brenda:
So one group is focused on the what, the actual words,
while the other is more interested in the why, the intention behind them.
Adam:
That's a great way to put it. But what's so intriguing
about this response article is that it argues these canons aren't playing on
opposite teams. Instead, they exist on a spectrum with some canons having
both linguistic and substantive weight.
Brenda:
Interesting.
Adam:
It's not an either situation.
Brenda:
So it's not just about deciphering the words themselves,
but also understanding the unspoken rules about how we use language to create
rules in the first place.
Adam:
Precisely. Take the presumption against retroactivity, for
example. This legal principle states that new laws shouldn't apply to things
that happen before they existed unless it explicitly says so.
Brenda:
Okay.
Adam:
Typically, we view this through a lens of fairness, a
substantive concern. Punishing someone for something that wasn't against the
rules at the time feels unjust. Right?
Brenda:
Totally.
Adam:
It'd be like getting detention for wearing a band T-shirt
to school last week, even though the rule against it wasn't announced until
today.
Brenda:
Exactly. But here's where it gets interesting. This
response suggests that our aversion to retroactivity might also stem from how
we naturally understand and interpret rules, even outside of a legal context.
It's not just about fairness, but about an intuitive grasp of language and how
rules work in the real world.
Adam:
So it's like when your teacher says, "No phones
during class," there's this unspoken understanding that it applies from
that moment forward, not to every time you've ever used your phone in class
before.
Brenda:
That's a fantastic analogy. And to test this idea, the
authors actually conducted empirical studies observing how everyday people interpret
rules in various scenarios to see if those interpretations align with these
traditional canons. They took legal theory out of the courtroom and into the
real world.
Adam:
Now, that's what I'm talking about, putting our legal
common sense to the test. So what did they find? Did our everyday understanding
of rules hold up?
Brenda:
Well, they discovered some pretty compelling evidence to
support their theory. They designed some clever experiments, presenting people
with various scenarios involving rules, some legal, some more everyday
situations, like business agreements or even sports rules.
Speaker 3:
[inaudible 00:03:16].
Brenda:
Okay. The key was to see how people reacted when a rule
was applied retroactively to something that happened *before* the rule was in
place.
Adam:
So testing whether someone thinks it's fair to penalize a
soccer player for a handball if the rule was established *after* the game was
played.
Brenda:
Precisely. And when it came to the presumption against
retroactivity, the results were pretty definitive. People overwhelmingly felt
that it was wrong to punish someone for something that wasn't against the rules
when they did it. It makes sense, doesn't it? We instinctively understand that
rules should generally apply from the point they established and not before.
Adam:
Absolutely. Nobody likes a retroactive rule change,
especially when there are consequences involved. It feels fundamentally unfair.
Brenda:
Exactly. Now with anti-extraterritoriality, the principle
that a rule shouldn't apply outside its intended jurisdiction, things got a bit
more nuanced. This is where the specific context of the rule really came into
play.
Adam:
So like how a school rule against chewing gum probably
doesn't apply to students when they're at home, even though technically they're
still students of the school.
Brenda:
That's a great example. While people generally grasp the
idea that rules have boundaries, where those boundaries lie often depended on
the nature of the rule itself. For instance, a company rule might apply to all
its employees, regardless of where they're working remotely, while a local
traffic law obviously wouldn't apply to someone driving in a different country.
Adam:
It highlights how our intuitions about rules are shaped by
our understanding of context and jurisdiction. Fascinating. What else did they
discover?
Brenda:
Their experiments also shed light on the anti-implied
repeal principle, which to put it simply means people generally assume a new
law doesn't completely erase an older one unless it's explicitly stated.
Adam:
Right.
Brenda:
Think of it like adding a new amendment to the
Constitution.
Adam:
Yeah.
Brenda:
It doesn't invalidate everything that came before it. It's
about building upon and clarifying existing laws.
Adam:
Right. It's more like adding a new layer of interpretation
rather than a complete overhaul.
Brenda:
Right, right.
Adam:
So we've seen how people actually think about these canons
in practice, but the big question is what does this all mean? Why should we
care if our gut feelings about rules align with these legal principles? This is
where it gets really interesting. This research has major implications for how
we understand legal interpretation, especially when it comes to textualism.
Brenda:
That's right. Textualism, as you might recall, is a legal
philosophy that emphasizes the plain meaning of a legal text. Think of it as a
very literal approach to interpreting laws, prioritizing dictionaries, grammar
rules, and the like.
Adam:
So textualists are like the legal sticklers for the rules
of language.
Brenda:
Exactly. They believe judges should focus on what the law
actually *says*, not what lawmakers might have *meant* to say, which can
sometimes feel at odds with common sense.
Adam:
I see. So how does this research showing that our common
sense understanding of rules often aligns with the legal canons impact the
textualist approach?
Brenda:
Well, traditionally, textualists have been wary of
substantive canons, those policy-driven ones, because they seem too open to
interpretation. It's like giving judges a free pass to inject their own values
into the law instead of sticking to the text itself.
Adam:
Right. It's like saying, "Well, the law doesn't
explicitly forbid me from wearing a chicken costume in court, so I guess it's
fair game."
Brenda:
Precisely. But if, as this research suggests, some of
these substantive canons are actually rooted in how we instinctively understand
and use language, then they might not be so subjective after all. They could
actually be considered part of a law's plain meaning, making them fair game,
even for the most devout textualist.
Adam:
That's a really compelling point. So this isn't just an
academic debate. It could actually shift how judges interpret laws in the real
world with real-world consequences.
Brenda:
Absolutely. And this isn't just a hypothetical scenario.
This very question is playing out right now in the debate surrounding the major
questions doctrine.
Adam:
The major questions doctrine. Refresh my memory on that
one.
Brenda:
Essentially, it's the idea that government agencies need
extremely clear direction from Congress before taking major actions that impact
the entire country. It's been used to challenge significant agency actions in
recent years, with some arguing it gives judges too much power to overrule the
decisions of regulatory bodies.
Adam:
So if this research is correct and the major questions
doctrine is actually reflecting a deeper understanding of how we use language
to delegate authority, it might hold more weight than some critics argue.
Brenda:
Exactly. It suggests that what might seem like a policy
preference could actually be rooted in our shared linguistic understanding of
how rules and authority function. This research throws a fascinating curveball
into the ongoing debate.
Adam:
It definitely makes you rethink some assumptions. Taking a
step back, what's the biggest takeaway for our listeners? What's the core
message we should leave them with?
Brenda:
I think the key takeaway here is that the line between
language and policy in the legal world might be blurrier than we previously
thought. Linguistic and substantive canons, often viewed as separate entities,
could be more intertwined than we realized. And as textualism continues to hold
sway in our courts, this new perspective has the potential to reshape how laws
are interpreted and applied.
Adam:
This deep dive has given us a lot to think about. It's
fascinating to consider that there might be other linguistic decoder rings
hidden within legal language, shaping our understanding of the law in ways
we're just beginning to uncover.
So to our listeners, we leave you with this
thought-provoking question. If our intuitive grasp of language plays such a
significant role in legal interpretation, what does that say about the law's
claim to objectivity and neutrality? It's a question that legal scholars will
likely be grappling with for years to come. And if you're curious to delve
further into this fascinating debate, we highly recommend checking out the full
response article in the Harvard Law Review Forum. It's a thought-provoking read
that will deepen your understanding of this complex topic.
Speaker 3:
I second that recommendation.
Adam:
Until next time, keep those legal brains buzzing.
