Howard A. Denemark, How to Alert New Law Students to the Ambiguity of Language and the Need for Policy Analysis Using a Few Minutes and the Directions on a Bottle of Salad Dressing, 36 Gonz. L. Rev. 423 (2001).[PDF] [Westlaw] [LexisNexis]
All lawyers know that language, the inevitable medium of law, is ambiguous by its very nature. The fact that linguistic ambiguity feeds and clothes the world’s lawyers is hardly a new observation. Over 160 years ago it was known that:
Construction is unavoidable. Men who use words, even with the best intent and great care as well as skill, cannot foresee all possible complex cases, and if they could, they would be unable to provide for them, for each … forsakes us, when the text is no longer directly applicable, because the utterer, not foreseeing this case, did not mean it, therefore it has no true sense in this particular case.
Words mislead, and as aware of this central reality of law as attorneys are, many beginning law students arrive at law school blissfully unaware of the importance of language in their newly chosen endeavor. Of course, some undergraduates will have learned in English or Philosophy classes that even carefully crafted phrases can still be drastically misunderstood. However, a class of law students may include members whose courses of study in music, physics, or computer engineering may not have impressed upon them the unavoidable slipperiness of words. The sooner first year law students appreciate the ambiguity of language, the sooner they can grasp the vital role that policy, the name lawyers often give to the reason underlying a rule, plays in resolving the ambiguities of language… Read more