There's a new sheriff in town

A victory for plain language! The Securities and Exchange Commission has cited 40 companies for submitting reports that fail to meet the SEC's Plain English guidelines.

Among the gems cited by the SEC was a proxy statement that described performance-based compensation as being:

based on a multiple of the named executive's base salary in effect in February 2006 and the annual bonus awarded in February 2006 for the 2005 period. The potential payment in 2009 as a multiple of salary and bonus at February 2006, for each named executive, is .75X at threshold, 1.50X at target and 2.00X at maximum.

Come again?

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Column: Too Darn Hot

Contrary to popular belief, the epic battle over global warming that recently took place in the US Supreme Court was not primarily about shrinking ice caps, rising sea levels, or other kindred inconvenient truths.

It was a battle about words. To be exact, the words “air pollutant.”

In Massachusetts v. Environmental Protection Agency, the Bay State sought to force the EPA to regulate greenhouse gases, such as carbon dioxide, as “air pollutants” under federal law. That may sound straightforward enough – if something causes global warming, isn’t it a pollutant? – but when it comes to environmental law, words are rarely simple.

In the language of environmental law, everyday smog is known as the coefficient of haze. Federal and state authorities never drain a swamp; they dewater it. And in the realm of clean air, regulators like to cite the odor threshold; that is, the point at which a substance in the air can be smelled.

Massachusetts v. EPA involved the Clean Air Act, which empowers the EPA to regulate any “air pollutant.” The Act defines air pollutant as:

any air pollution agent . . . including any physical, chemical . . . substance or matter which is emitted into . . . the ambient air.

In their efforts to slice and dice these words, the parties ended up giving all of us a textbook lesson in the canons of construction; that is, the established rules for interpreting statutes (canon is an Old English word referring to a rule, particularly one laid down by a church – hence canon law is the name for the body of ecclesiastical law).

The Grand Canon

The most basic canon is the Plain Meaning Rule: words in a statute should, if possible, be given their “plain” or “literal” meaning. On that score, Massachusetts argued in its brief that the word “any” in the above definition (as in “any physical, chemical . . . substance”) is an expansive word that both “bespeaks breadth” and “signals breadth.” Presumably, they mean a breadth of clean air.

But how broad is “any”? It’s not the same thing as “every”; there’s a big difference between “is anyone there?” and “is everyone there?” The word “any” can be used expansively, but that is not its only “plain” interpretation. Dictionaries, unfortunately, are of little use on such questions. Black’s Law Dictionary, for example, offers the distinctly unhelpful definition of “any” as “some; one out of many; an indefinite number” – thus managing to leave the reader more confused than when he started.

Stroud’s Judicial Dictionary says that “ ‘any’ is a word which excludes limitation or qualification . . . [b]ut its generality may be restricted by the subject matter or the context.” In other words, “any” is expansive, except when it isn’t.

Include Me In

Not very conclusive – but then, the battle was just getting started. Massachusetts went on to focus on the word “including,” arguing that since an “air pollutant” is said to “include” any chemical or physical substance emitted into the air, then it must include carbon dioxide. After all, you and I emit carbon dioxide into the air every time we breath. Although Massachusetts did not use this term in its brief, it could be said to be invoking the canon of noscitur a sociis (Latin for “known from associates”); essentially, that the meaning of a statutory term must be ascertained by the surrounding words.

The EPA countered that the word “including” is limited by the term “air pollution agent,” which immediately precedes it. On this reading, an air pollutant is not just any chemical or physical substance emitted into the ambient air, but only one that also qualifies as an “air pollution agent.” Massachusetts, not surprisingly, argued that “including” and the words following it, expand the meaning of “air pollution agent” and not the other way around.

And so the battle turned from the meaning of “air pollutant” to that of “air pollution agent.” Unfortunately – and a little strangely – the Clean Air Act does not define “air pollution agent” or even “air pollution.” According to Massachusetts, the statute’s purpose of protecting “public health and welfare” demonstrates that greenhouse gases should be considered “air pollution agents.” Another example of noscitur a sociis.

In his dissenting opinion, which supported the EPA’s position, Justice Scalia turned to the dictionary definition of “pollute” as “to make or render impure or unclean.” This is true enough, pollution ultimately derives from the Latin lutum, or mud. Even today, scientists refer to certain kinds of clay as “lute.” In any event, Scalia’s argument was that carbon dioxide cannot be an agent of “air pollution” because, rather than being an impurity, it is a natural component of our atmosphere.

One can go back and forth like this forever – or at least until the sea level reaches your lower lip. That’s the thing about the plain meaning of statutes: plainness is in the eye of the beholder. A good example of this is the 1931 Supreme Court case of McBoyle v. United States, in which McBoyle had been convicted under the National Motor Vehicle Theft Act for transporting a stolen airplane across state lines. The case hinged on whether an airplane was a “motor vehicle.” The government pointed to the statute which defined “motor vehicle” as including cars, trucks “or any other self-propelled vehicle not designed for running on rails.” Literally, that would seem to include aircraft, but the Justices saw things differently. Speaking for a unanimous court, Oliver Wendell Holmes said “in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” There’s literal, and then there’s literal.

When the plain or literal meaning of a statute is not conclusive, courts may look to other canons of construction, like the noscitur a sociis rule we’ve already seen. In the Massachusetts case, the EPA (and other respondents) fired off a number of canons in their attempt to bring the court around to their interpretation.

Theater of the Absurd

First, the agency pointed to the “fundamental canon of statutory construction that the words of a statute must be read . . . with a view to their place in the overall statutory scheme.” For those who prefer Latin, this rule is traditionally known as in pari materia or “upon the same subject”. Using this canon, the EPA pointed out that other federal laws already address global climate change and, therefore, it would be redundant (another statutory no-no) to interpret the Clean Air Act as covering the same ground. Or air, for that matter.

Secondly, a number of States argued in a separate brief that Massachusetts’ interpretation of the Clean Air Act would violate the Absurd Results Canon. This one is sort of a meta-canon; it says that no matter how many other canons support a particular interpretation of a statute, a court should not adopt that interpretation if it leads to absurd results. The States argued the Clean Air Act targets domestic pollution, and that it would be “absurd” to include greenhouse gases, which are an international problem.

Justice Scalia had his own spin on the absurdity argument. In his dissenting opinion, he argued that under Massachusetts’ expansive reading of “air pollutant,” the EPA would have to regulate “everything airborne, from Frisbees to flatulence.” That must be where the odor threshold comes in.

Finally, the EPA invoked the so-called Deference Canon – the rule that courts should generally defer to the interpretations of administrative agencies. This is sometimes known as “Chevron deference,” after the Supreme Court case of Chevron v. Natural Resources Defense Council. But the majority of the Court held that the agency’s failure to address the possibility that greenhouse gases contribute to climate change was not entitled to Chevron deference. In fact, the Court said that the government’s inaction was “arbitrary and capricious.”

Is it just me, or is it getting warm in here?

Column: Fibbing, legally speaking

During their lengthy deliberations, jurors in the Lewis “Scooter” Libby trial appeared at times to be confused about the charges against the former White House aide. On at least five occasions, they asked for clarification of such concepts as “reasonable doubt” and “false statement.”

Who can blame them? The Libby jurors had the unenviable task of analyzing the elements of three distinct crimes: Libby was charged not only with perjury, but also with making false statements, and obstruction of justice.

In English, that means the government thinks that Libby fibbed, but in three very special ways. That’s not unusual: the law has an almost endless variety of terms for lying. In Black’s Law Dictionary, the word false gets an admirably concise definition (“not true”) followed by a list of twenty-one synonyms. There we see false representations and misrepresentations, frauds and deceits, counterfeits and forgeries, to name only a few.

The one term you won’t find in Black’s is “lying.” Which is odd, since the law doesn’t exactly shrink from unpleasant words; murder, rape, nuisance, and bastard all have their place in the legal lexicon. But for some reason, the law likes to tiptoe around the subject of, well, prevarication.

For one thing, lawyers love to use Latin when discussing falsehoods; it adds a touch of elegance to an otherwise tawdry subject. In legal Latin, a fabrication is transformed into the almost-refined suggestio falsi; a failure to tell the truth becomes a mere suppresio veri; and, of course, a large frothy coffee is a venti cappuccino.

“Perjury” – although it is now an English word – actually began life as yet another Latin euphemism. It comes from the Latin periurium, or “oath-breaking.” When if first appeared in English statutes in the fifteenth century it was intended to replace the Old English forswearing, which meant both swearing falsely and renouncing an oath.

Today, perjury means deliberately lying about an important (or “material”) fact while under oath. The perjury charge against Libby was based on allegations that he lied to a grand jury about conversations he had concerning former CIA operative Valerie Plame. When a witness is caught perjuring himself, the opposing lawyers will argue that the witness’s entire testimony should be discredited; or, in the traditional legal formulation: falsus in uno, falsus in omnibus. Needless to say, that is not the sort of language one bandies about down at the dockyards.

Also from Latin comes subornation of perjury, inducing another to commit perjury. “Subornation” is formed by sub (“under”) plus ornare (“to equip,” related to “ornate”). The first recorded reference to subornation of perjury appears in the 1588 book Lawier’s Logike.

Despite the onslaught of Latin, the Anglo-Saxon “forswear” never entirely disappeared from the legal vocabulary. It is still technically available for those who like the sound of archaic words, and who probably also like to pick up their groceries at Ye Olde Victual Shoppe.

Forswear is listed in Black’s as a general term for oath-breaking; unlike perjury, it does not require that the false statement refer to a “material” issue. In addition to perjury and forswearing, there are the nearly-identical offenses of false swearing, false oath, and the Latin crimen falsi (confusingly, sometimes listed as falsi crimen). The fact that the law has five ways to describe oath-breaking reflects its splendid vocabulary, as well as its impeccable logike.

The crime of “making false statements” has the advantage of being in English, but it unfortunately gives the impression that one might go to prison for celebrating yet another twenty-ninth birthday. In fact, the offense consists only of lying to federal officials. In the Libby case, the indictment charged Libby with deceiving FBI agents, again about Valerie Plame.

Fraud is the broadest legal term for dishonesty. The word comes from the Latin fraus, “deceit” or “injury.” Although it is but a one-syllable word, fraud inspires judges to new heights of eloquence; or verbosity at any rate. A former justice of the Pennsylvania Supreme Court once described fraud as

The evil of evils. . . It is the match in the hayloft, the serpent in the garden, the weasel in the chicken yard, the spider in the web, the false bottom to the pool.

Everything, it seems, except the “delete” button on the keyboard.

The verb form of fraud is to defraud. This is confusing to non-lawyers, since “defraud” sounds like a distinctly good thing – as in, “I called the police and they were able to defraud the situation.” But in defraud, the “de” prefix acts as an intensifier, meaning “completely” or “thoroughly,” as it does in such words as declare, denude, and despoil. Like “fraud” itself, defraud has roots in Classical Latin, from the verb defraudare.

Fraud encompasses such practices as misrepresentation, obtaining money by false pretences, and false advertising. One variation on false advertising is passing off – representing your goods or services to be those of another – which is also known by the less-formal sounding palming off. The use of “palm” as verb, meaning “to pass off by trickery or fraud” is recorded as early as 1679. American courts have referred to “palming off” goods since at least the 1880’s.

A perennial controversy is whether a person’s silence – a mere suppresio veri if you will – counts as fraud. The answer, naturally, is that it depends on the circumstances. Did the defendant have a duty to speak? The venerable common law crime of misprision of felony denotes the act of deliberately concealing knowledge of a felony. The word “misprision” comes from the Anglo-Norman mesprison, originally meaning mistake.

In contract law, failure to disclose certain facts, although not a fraud, might render the contract voidable. This is the case, for example, with insurance policies, which are said to be contracts uberrimae fidei (of the utmost faith).

Making a false document with the intention of passing it off – or palming it off, for that matter – as genuine is forgery. Forgery comes from the Old French forgier, meaning “to fashion” or “to pound into shape.” Thus forgery is a metaphor: just as the blacksmith “forges” iron on the anvil, the criminal forges documents on the desk. Forging of money or securities is known as counterfeiting, from the Old French contrefaire, or “to make in opposition or contrast.”

In 1827, a local constable in Painesville, Ohio caught a gang of counterfeiters using an odd-looking machine to coin money. One of the locals dubbed the machine a “bogus,” thought to be short for tantarabogus, a mysterious folk word with roots in ancient Britain. In any event, bogus has become a quasi-legal term (as in the phrase bogus check) as well as word of common usage (as in totally bogus).

It is often said that a “little white lie” is harmless. In law, some lies are positively necessary. A feigned accomplice is one of law’s more helpful liars: a person who pretends to conspire with others in the commission of a crime, but only for the purpose of tipping off the authorities.

Arguably, the very existence of law depends on lies – a very peculiar set of lies known as legal fictions. A legal fiction is the assumption made by courts of facts known to be untrue. Consider orders made nunc pro tunc (“now for then,” i.e., retroactively) or the Fertile Octogenarian Rule (the presumption that every person is capable of procreation regardless of age).

The legal term constructive, as used in phrases like constructive eviction or constructive delivery, generally means “treat something as though it happened even though you and I know it didn’t.” Viewed objectively, these are nothing more than legally-sanctioned lies. But, of course, they never did anybody any harm. Honestly.

Column: Forbidden Fruit (the language of food law)

On December 5, 2006, “trans fat” entered New York City’s legal lexicon. On that day, the Board of Health voted to ban this mysterious substance from all city restaurants, beginning July 1, 2007.

The upshot of this new law is that things like French fries, tacos, and doughnuts are going to be a lot harder to come by, at least in their beloved artery-clogging forms. But when prohibiting something it is always a good idea to call it by the least appealing name possible. So the new regulations don’t mention any food by name – just “foods containing artificial trans fat.”

In fact, the regulations don’t even use the word “restaurant,” opting instead for the bureaucratically bland “Food Service Establishment,” sometimes shortened to FSE.

Semantics make all the difference – a law that takes the zing our of your morning doughnut might cause a personal crisis, but one that merely takes the trans fats out of an anonymous FSE hardly seems worth a second thought.

Duck Duck Goose

Just a few months before the New York ban, the Chicago City Council took a decidedly less euphemistic approach when outlawing the sale of foie gras in that city – the aldermen came right out and called it by its name, which in French literally means “fat liver.” Perhaps they couldn’t think of a less appetizing term.

Oddly enough, the Chicago legislation goes on to define foie gras as a “rare delicacy,” which sounds positively flattering. Possibly the term “rare delicacy” was intended to convey a subliminal message: this stuff is eaten by fat cats!

In any event, Chicago, like New York, cannot bring itself to call a restaurant a restaurant. In the Windy City, residents must get their delicacies from “Food Dispensing Establishments,” a name that suggests one might just need a prescription to get a meal in Chicago. (Thank you and don’t forget to tip your dispenser!)

But is it English?

“Food law” – the branch of law that covers trans fat and foie gras – serves to protect the public against “adulterated” food. Today’s food laws take their immediate inspiration from the 1906 Food and Drug Act, but they have an ancient lineage. As long ago as 1607, an English legal dictionary listed the intriguing term “Ale-Tastor”: an officer appointed to supervise “the goodness of bread and ale or beer.” A tough job, but somebody had to do it.

Going back even further, some of the first laws in human history were food laws; namely, the kashrut or kosher laws of the Hebrew Bible. “Kosher” is also a modern legal term: New York State has regulated the sale of kosher foods since 1915. One of the first litigants to challenge that law argued that the word “kosher” is not part of the English language, making the statute impermissibly vague. The court, however, considered that argument to be more than a little meshuge; er, unsound.

When it comes to the language of food, the law sometimes plays fast-and-loose. Under English common law, for example, the word “fruit” traditionally included not only things like apples and pears, but also acorns and walnuts. That’s because ancient authorities stated that if a person rented land that had oak or walnut trees, then he or she would have a legal interest in the “fruits” of those trees.

In 1957, a British Court held that water was not a “drink” (because nobody drives under the influence of water). In California, a 1991 regulation defined “food products” to include seaweed but not chewing gum.

In 1973, an Australian statute rather arrestingly declared that “a reference to . . . eggs and egg pulp shall be construed as a reference to citrus fruit.” Not a sentence that one would want to see in a cookbook – unless citrus omelets are your sort of thing.

Litigation inspires linguistic creativity. Ten years ago, a British company was prosecuted for selling smoked trout under the label “smoked salmon.” The company’s lawyers argued that the word “salmon” is actually synonymous with trout, since rainbow trout belongs to the genus Onichorynchus – the same as Pacific Salmon. The defense took a turn for the worse; however, when the judge pointed out that the company had marketed its product as Atlantic Salmon.

Just Desserts

In 1916, a British court ruled that “ice cream is not meat” – putting an end to a debate that most people didn’t know existed. The question arose because a certain Mr. Berni had been arrested for selling ice cream on Sunday, in violation of an English law prohibiting commercial activity on the Christian Sabbath. In his defense, Berni argued that he fit within the “cookhouse exception” that allowed purveyors of “meat” to operate on Sundays. The judge, although sympathetic to Berni’s plight, did not buy the argument that selling ice cream was the same thing as selling meat. Berni was convicted under the Sunday Observance Act. Perhaps it should have been called the Sundae Observance Act.

Speaking of ice cream, one of the most lavishly defined terms in American food law is “frozen dessert.” The U.S. Food and Drug Administration has its own definition, as does each state; however, there has been a movement toward uniformity among the states so that – in the stirring words of New York’s statute – “there may be free movement of frozen desserts between the states.”
Looking at New York’s definitions, we see that “frozen dessert” means ice cream and frozen yogurt, of course, but with curious specificity also includes “French Ice Cream” – and presumably Freedom Ice Cream while we’re at it. Under the frozen dessert umbrella, one can find “mellorine,” stuff that looks like ice cream but is made from non-dairy fats, and even “bisque tortoni,” an Italian frozen custard that appears to have been popular in the 1950’s and is, one can only assume, a rare delicacy these days.

Best of all, the frozen dessert laws cover the all-important topic of “quiescently frozen confection” – that’s the legal term for a popsicle. The phrase refers to the fact that popsicles are frozen “at rest” (quiescently), without the churning involved in ice cream making. A fudgsicle, in case you were wondering, is a quiescently frozen dairy confection. In other words, it has some milk in it.

Perhaps the most hotly-contested word in Food Law today is “organic.” Organic foods have become a multi-billion dollar industry, leading to intense debate about the right to use the term “organic” in food packaging. The key issue is whether organic foods can contain any synthetic compound – even such seemingly harmless materials as baking powder.

Current federal regulations allow for certain non-organic ingredients in food labeled “Organic,” but not in food labeled “100 Percent Organic.” When either label is used, however, federal law helpfully requires that “the product must be produced and handled without the use of . . . Sewage sludge.” One begins to see what all the fuss is about.

Generally, food laws protect the public from unhealthy food, but every once in a while, the law steps in to protect food from people. In the 1990’s, thirteen states adopted “food disparagement” laws, also known as “veggie libel” laws. These are statutes meant to protect agricultural products – a group with especially tender feelings – from false and disparaging remarks.

In 1998, a group of Texas cattlemen sued Oprah Winfrey under the Texas food disparagement law for airing a show about mad cow disease. During the show Winfrey vowed not to eat another hamburger, causing beef sales to plunge. The trial court, however, ruled against the lawsuit, and the Fifth Circuit affirmed. Probably the court thought that the cattlemen were trying to milk their unsold meat for all it was worth. And that is definitely not kosher.

(This column originally appeared in the February 2007 issue of New York Law Journal Magazine)

Column: Cyberspeak

The Hewlett-Packard leak scandal has uncovered many unpleasant truths. Surely the worst of them all is the fact that millions of people appear to be using the word pretext as a verb, as in: did H-P engage in pretexting?

We all know what a pretext is. It’s an excuse, a pretense, a sham; in short, it’s one of those things that make modern life possible. Pretexting, on the other hand, is a much more controversial affair: it is the act of using a pretext to get confidential information about other persons.

According to reports, H-P hired investigators who used pretexting to gather phone records of possible leakers. At present, there is no federal law that explicitly forbids pretexting for phone records; however, Congress is weighing several bills that would do just that.

Pretexting is an ugly word. It barely even looks like a word. Grammatically speaking, it is a gerund (a word ending in –ing), the root of which is the suspicious-looking verb “to pretext.”

Here’s the surprising part. The Oxford English Dictionary shows that pretext has been used as a verb since the late 18th Century. “Pretexting” is recorded as early as 1849; originally, it meant “pretending” or “feigning.” And even in its current usage, pretexting describes behavior as old as private detectives. So why the fuss all of a sudden?

Calling All CyberLawyers

The answer is that pretexting is one of those legal terms that has acquired a new sense of urgency, and cachet, in the Information Age. Back in the old days, investigators could merely snoop in back alleys and dumpsters. But now they engage in data mining – in cyberspace, no less. They’re hacking and phishing and using splogs. Whatever it means, it all sounds very alarming.

The use and abuse of electronic information is the subject of cyberlaw, a term that covers laws relating to computers, software, databases, networks and, especially, the Internet. The cyber part comes from cybernetics (from the Greek kybernetes, a steersman or pilot), which is the study of communication and control among animals and machines. Cyber has been a popular prefix in technical circles since 1982 when a science fiction writer coined the word cyberspace.

Today’s law dictionaries like to show that they are on top of this whole cyber thing. Just look under “C” and you’ll find definitions for cybertorts, cyberfraud and cyberattacks (intriguingly, these are torts, frauds, and attacks committed via computer). You’ll see cybercriminals in current dictionaries and, much to one’s relief, cybercops to hunt them down.

Cybersquatting is a novel form of cybertort. It involves the practice of registering an Internet domain name identical or similar to another person’s trademark. The idea is that the trademark owner will pay up to get the squatter to release the domain name. A person who perpetrates such a scam is known as a cybersquatter or, more picturesquely, a cyberpirate. Under the Anticybersquatting Consumer Protection Act of 1999, trademark owners can sue cyberpirates or, presumably, make them walk the plank.

Predators who use chat rooms and email to target their victims may be guilty of cyberstalking. Those who use computer systems and networks to undermine national security risk prosecution for cyberterrorism.

Some legal writers have proposed a formal system of international law to govern conduct on the Internet. They call it cyberalty, a combination of cyber and admiralty, the latter because cyberspace is analogous to the high seas in that it is used by people of all nations. And because it’s full of pirates.

Back to the Future

It all sounds futuristic – or does it? To many, terms like cyberlaw and its derivatives are already passé; reminiscent of sci-fi chestnuts like cyborg and cybernaut. A number of legal academics have suggested that Information Law is a better name for this branch of the law. Still others reject both cyberlaw and Information Law as sounding too stodgy. Instead, they advocate a revolutionary terminology that captures all the cutting-edge drama of the ‘Net. I refer to Latin.

Yes, Latin. According to some experts, the international legal principles covering electronic exchanges of information ought to be known as Lex Informatica. Lex is Latin for law, and Informatica is Latin for – well, actually, it isn’t Latin at all, but rather a pseudo-Latin word meaning “of or pertaining to information.” Lex Informatica takes its inspiration from Lex Mercatoria (the “Law Merchant”), an ancient body of laws that governed the activities of merchants who traveled from one kingdom to another during the Middle Ages.

The use of Latin does have one great advantage: since it is already a dead language, it can’t get any deader, as it were. Technology lingo, you see, rapidly grows obsolete and so do the corresponding legal terms. In 1960, for example, a Time magazine writer argued that government lawyers needed to get serious about “jet age problems.” In 1963, a California lawyer described certain legal terms as belonging to the “atomic age.” Cyberlaw will sound just as dated as those phrases soon enough.

In the meantime, various high tech legal problems are enriching our vocabulary every day. Perhaps the best-known affliction of the Internet era is spam, a term that is now defined by federal law. Under the 2003 CAN-SPAM Act, spam is any unsolicited email, the “primary purpose of which” is to promote a commercial venture. CAN-SPAM makes it a misdemeanor to send spam with falsified “header” information; say, emails pretending to come from a prominent Nigerian barrister.

Incidentally, the title of the federal spam law stands for “Controlling the Assault of Non-Solicited Pornography and Marketing,” making CAN-SPAM an acronym. Or, more precisely, a backronym: that is, somebody worked backwards to compose an acronym that would fit “CAN-SPAM.” This is fairly common practice in naming laws. The USA PATRIOT ACT, for example, is a backronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” It’s this kind of attention to detail that allows Congress to deal with jet age problems.

Throttling, another legal neologism, was the basis for a recent lawsuit against Netflix, a service that allows subscribers to order DVD’s online. Allegedly, Netflix rationed the supply of popular DVD’s by applying an undisclosed “fairness algorithm” that gave priority to new users and infrequent users. The fairness algorithm meant that regular Netflix customers sometimes faced delays of up to 6 days for popular titles, leading to widespread discontent – algorithm and blues, if you will.

A common problem for e-commerce merchants is click fraud, which is the illicit manipulation of keyword-based advertising. Click fraud can take many forms; one example would be a company employing people to click on a rival company’s search engine ads, thereby driving up the competitor’s advertising costs. But round-the-clock clicking is tedious work, so some click fraudsters, as well as many spammers, now do their deeds via botnets; that is, “robot networks.”

Danger, Will Robinson

The very mention of robots conjures up images of walking, talking, C-3PO-like creatures. Given advances in artificial intelligence and robotics, some scientists predict that we are not far from the day when robots will possess the kind of self-awareness and moral judgment that will make them more than mere machines.

Not surprisingly, legal scholars are already beginning to consider the possibility of robot rights. In 2004, the International Bar Association staged a mock trial in which a super intelligent computer sought to enjoin its “employer” from dismantling it.

In Japan, some companies pay union dues for robots on the factory floor. What if the robots assert their right to strike? Already computers can be programmed to compose poetry. Will they demand copyright protection for their works? And if a robot causes harm, can we hold it liable under a reasonable computer standard?

But that is a subject for an entirely different branch of law – Lex Robotica?


This column originally appeared in the December 2006 issue of New York Law Journal Magazine.

Column: Fare Thee Well

A flurry of recent articles announced new “federal welfare rules” that will go into effect October 1. These rules represent the first update to the massive overhaul of the US welfare system signed into law by President Clinton in 1996.

The new rules (which require welfare recipients to engage in certain work activity in order to receive benefits) have generated untold controversy on both sides of the aisle. Supporters say the welfare rolls will go down; opponents say poverty will go up. But one vital question has been strangely overlooked in the midst of all the political squabbles: why are the laws governing public assistance invariably referred to as welfare laws?

After all, the program affected by the new regulation is called TANF (Temporary Assistance for Needy Families) not “welfare.” There is no “federal welfare act” or “federal welfare program.”

An Ambiguous Clause

Welfare does appear twice in the Constitution: but in neither case does the word expressly refer to anti-poverty programs. The Preamble describes the purpose of the Constitution “to form a more perfect Union, to establish Justice [and to] promote the general Welfare.”

Article 1 of the Constitution authorizes Congress to pass laws to “provide for the . . . general Welfare of the United States; . . .” Unlike the Preamble, this is not a mere statement of aspiration, but a grant of power.

Almost as soon as the ink was dry on the Constitution, debate erupted over the meaning of the so-called Welfare Clause of Article 1. Alexander Hamilton argued that the Welfare Clause gave Congress an independent right to pass any sort of law that would tend to benefit the nation as a whole, as distinct from laws of purely local interest.

James Madison disagreed. To him, the Welfare Clause was not a distinct federal power. The proof? The fact that “general Welfare” is separated from the more specific powers of Article 1 by a mere semicolon. History does not record Hamilton’s rejoinder to this point, so we are left with the tantalizing possibility that these two Founders may have had furious knock-the-powder-out-of-your-wig arguments about the significance of a semicolon.

The Supreme Court finally settled the question in Helvering v. Davis, a 1937 lawsuit involving the granddaddy of all American welfare programs, the Social Security Act of 1935. The plaintiff had challenged the Act as an unlawful expansion of congressional power. The Court upheld the Social Security Act as an example of Congress’s authority to pass laws “to promote the general welfare.” Justice Cardozo pointedly remarked: “Nor is the concept of the general welfare static. . . What is critical or urgent changes with the times.”

Fare’s Fair

The fact that the Welfare Clause forms the legal basis for the federal welfare system appears to be a coincidence, linguistically speaking. To the Founding Fathers “welfare” did not refer to government programs, but rather conveyed a more general sense of well-being or prosperity. The word is recorded as early as the 14th Century, meaning to fare (i.e., to go, or to take one’s leave) well. It has the same roots as farewell, but just in reverse order.

Welfare began to take on its modern meaning of “a benefit provided to the needy” in the early 20th Century. At first, it applied to the paternalistic efforts of large companies, which sometimes hired “welfare officers” who arranged various services for employees. This sense is preserved in the statutory term Employee Welfare Benefit Plan – which is a type of plan protected under the 1974 Employee Retirement Income Security Act, or ERISA.

By the First World War, welfare was being applied to various services provided to the public at large, giving rise to such terms as welfare center (1917) and, later, welfare clinic (1937). When legislation in the US and UK established government-sponsored benefit programs, it was natural enough that such programs would be referred to as welfare. Before long, people were talking about a welfare state (1941), a term that was initially admiring, but later disparaging.

And yet, lawmakers have historically been reticent about using the term welfare when establishing relief programs. Even the 1996 overhaul – which is commonly referred to as the “Welfare Reform Act” – is actually called the Personal Responsibility and Work Opportunity Reconciliation Act. With a few exceptions (child welfare, for example), the word welfare is too vague for the law, which tends to speak of specific programs – the bureaucratic alphabet soup of TANF, AFDC, SSA, SSI, SCHIP, EA, CCDBG, CCDF, CETA, EOA, EITC, and QWERTY. Okay, not the last one.

As a legal term, welfare did achieve a degree of recognition in 1953 with the creation of the federal Department of Health, Education and Welfare (HEW). But this lasted only until 1979 when HEW was transformed into the Department of Health and Human Services. You will have noticed that the government dropped “welfare” from the new department’s name – but they helpfully added “human” to modify “services,” just in case, say, squirrels began to feel a sense of entitlement.

That’s Why the Lady is a Tramp, Your Honor

Before welfare became a quasi-legal term, laws relating to poverty were known, with a certain lack of euphemism, as Poor Laws. These were a patchwork of old English and American laws dating back to Elizabethan times.

The Poor Laws had two elements. One was the giving of “relief” to the poor. Relief consisted of either indoor relief, which required the recipient to enter a workhouse or similar institution; or outdoor relief, which simply meant giving cash or food to poor people.

The other, seemingly contradictory, component of the Poor Laws was the punishment of poor people. It wasn’t exactly a crime to be poor – unless you were deemed fit to work. The law assumed that any beggar who was capable of working must have chosen to beg. Such people were referred to as sturdy beggars, sturdy vagabonds, or simply as rogues. These were technical legal terms. A legal dictionary of 1607, for example, lists the offenses of being a “Roag [rogue] of the first degree” and “Roag of the second degree.” The punishment for repeat roguery was death.

Before you laugh this off as a relic of history, you might take a glance at the official website of the Massachusetts legislature. Apparently, it is still a crime in the Bay State to be a vagrant or a vagabond; the former being a beggar, the latter a person who steals or acts “in a suspicious manner.”
For those who don’t fit into either category, Massachusetts has a separate offense of being a tramp. The criminal code provides that “an act of begging or soliciting alms [charity] . . . shall be prima facie evidence that such person is a tramp.” To which, we might add, so is carrying one’s possessions in a bundle tied to the end of stick and wearing a rumpled porkpie hat.
The Massachusetts law probably would not survive a court challenge today. New York’s vagrancy law was held unconstitutional as long ago as 1974. Other state laws have suffered a similar fate. The leading case is Papachristou v. City of Jacksonville (1972) in which the Supreme Court struck down a Florida law that targeted not only rogues and vagabonds, but also habitual loafers (a term that, sadly, went undefined).

In giving the court’s opinion, Justice Douglas quotes Henry David Thoreau’s essay in praise of sauntering, which, according to Thoreau, comes from the French Sainte Terre (Holy Land) because medieval vagabonds would beg for alms under the pretense of going to the Holy Land. Presumably Douglas was trying to emphasize the harshness of the old Poor Laws – they even prohibited sauntering!

As a legal matter, of course, this was pure dictum. But the Supreme Court was looking to bury the Florida law. Which they did – to a fare-thee-well.


This column originally appeared in the September 2006 issue of New York Law Journal Magazine.

Column: Death and This

Death and taxes are equally certain, but death is considerably less complicated.

Consider the tax season we’ve just survived. As if the usual jumble of forms, schedules, and receipts weren’t enough, thousands of taxpayers had to struggle with the government’s definition of a word that most people don’t even think of as a legal term: child.

Like Whitney Houston, the Internal Revenue Service no doubt believes that children are our future. But it has a hard time explaining exactly who those darn kids are.

Until recently, the IRS had at least five different tests for who counts as a “child.” The definition is crucial because various tax breaks are available only to adults with children. In 2004 Congress stepped in and created a streamlined definition of child, which took effect for the first time in the 2005 returns.

Under the new law, you might have more children than you realize. In addition to the usual suspects (sons, daughters, stepchildren), your “child” could be your brother, sister, half-brother, half-sister, stepbrother, stepsister, or a descendant of any one of them. It might have been easier for Congress to list who is not your child.

According to reports in the Wall Street Journal, the new definition has had some unintended consequences – adult “children” claiming their siblings as dependants, for example. One hopes this confusion has not prevented anyone from connecting with his or her inner deduction.

To be fair, children have had a muddled status in the law for many years. Historically, the common law considered you to be a child until you were 14. But then for other purposes the common law deemed every person under the age of 21 to be an infant (meaning the person had not reached the age of majority). Unless I’m missing something, from age 14 to 20, you are an infant at common law even though you are no longer a child.

And in case you’ve ever wondered why the plural is children rather than childs, it is a holdover from the Middle English period, when plurals could be expressed by adding –en to a word. In Chaucer’s day, one was just as likely to write housen as houses. Only a few of the “en” plurals have survived: brethren, oxen and, of course, children.

Tax law – even without the children – has greatly enriched our language, even if it occasionally impoverishes our citizens. The 1991 edition of Black’s Law Dictionary fairly gushes that taxes sometimes go by the name of “toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, [and] supply.”

Mind you, Mr. Black is being overly inclusive here. A tallage, for example, is a kind of tax that has not been collected since 1332. Why an American lawyer would need to carry this term around in his or her toolkit today is a mystery. Tallage is, however, an interesting word. It comes from the French tailler (to cut out part of the whole), deriving from the fact that debts were anciently recorded by cutting notches into rods. The word survives in English as tally, and its distant cousin, tailor.

Tax started out in Medieval England as a very specific type of revenue scheme. It was a royal tariff demanded from towns, not from individuals. Another term for this tariff was the Fifteenth, because taxation was fixed at 1/15 the assessed wealth of a town.

Money collected from individuals was called a subsidy. Whereas taxes on towns were a fixed amount, subsidies on individuals had to be specially calculated each time they were assessed. The 17th Century British jurist John Cowell noted that subsidies are difficult to calculate “because the estate of every several man is so ticklish and uncertain” – neatly summing up the need for an accounting profession.

The word tax comes from an Old French word (taxer) and, ultimately, from the Latin taxare meaning “to value or estimate” but curiously also meaning “to censure.” As one can see, the punitive undertone of taxation goes way, way back.

For centuries, the word tax was interchangeable with task, which also comes from taxare, but via the Norman dialect of French. Gradually, task took on its more general sense of “thing to be done” while tax kept its more specialized meaning. Both words, by the way, are related to taxi, which is an abbreviation of taximeter, a device used to measure the fare in a cab.

Despite the French origins of tax, the 17th Century English lawyer John Cowell proudly declared that tax “is a British word” and suggested that any talk about a French derivation was “frivolous.” No doubt Cowell was attempting to strike a patriotic chord (“we invented taxes!”) but the authorities were not impressed. Cowell was sent to prison because his discussion of subsidies displeased Parliament, although it is not clear what the politicians found so objectionable.

By the 18th Century, “tax” had become the generic term for all the various payments demanded by government. As everyone knows, King George slapped the colonies with a Stamp Tax and a Tea Tax and the founding fathers revolted against “taxation without representation.” In the early days of the Republic, Chief Justice Marshall memorably observed that “the power to tax is the power to destroy” (in McCulloch v. Maryland).

New forms of taxation do spring up with alarming regularity. Quite apart from such familiar friends as income tax, property tax, and estate tax, there is the jaunty amusement tax, which is imposed on tickets to sporting events and other diversions; the floor tax, which is based on all distilled spirits in (“on the floor of”) a warehouse; and the sin tax, a tax imposed on booze, cigarettes or other “sinful” products.

Somebody has to collect all these taxes. Nowadays, it’s usually the government, but historically, the job has often been outsourced to the private sector. The practice, generally known as tax farming, goes back to the Roman Empire. In 20th Century America, people started referring to tax farmers as tax ferrets, presumably because they “ferret out” money, but also conjuring up unsavory images of human weasels. The most famous tax ferret was Nicholas Panarella (who preferred to call himself the “tax commando”). In the 1990’s, Panarella collected millions of dollars on behalf of Philadelphia and other municipalities from which he deducted a contingency fee. Panarella’s career was cut short by his conviction for aiding and abetting a politician’s fraudulent scheme.

When a tax is imposed on imports or exports, it is known as a duty or customs duty. As in normal conversation, the word duty connotes that which is due (a related word). The word has been used to describe import taxes since 1474. The phrase duty-free is first recorded in 1958 and was soon applied to shops that sell tax free stuff. Of course, anybody who has trudged through an airport terminal weighted down with gifts of Scotch and perfume knows the paradoxical truth that duty-free shopping is terribly taxing.

It is a crime to evade taxes but not to avoid them. Tax evasion is the failure to pay taxes that are due. Tax avoidance, on the other hand, simply refers to arranging one’s affairs to reduce or even eliminate tax liability. For this, one may set up a tax shelter (a device that defers or reduces taxes), or decide to live in a tax haven (a nation with low or no taxes on foreigners), or exploit various loopholes (from Middle English loupe, or “opening in a wall”).

None of this is illegal, a fact that sometimes sticks in the craw of judges and other officials. As one British judge said, with a whiff of distaste, “the avoidance of taxes may be lawful, but it is not yet a virtue.”

The simplest tax around is a poll-tax, an equal sum demanded from each person regardless of income or property. It is, as one legal treatise puts it, “a tax on the privilege of being.” You can’t evade or avoid a tax on being, at least not without running into that other great certainty.

(This column first appeared in the June 2006 issue of New York Law Journal Magazine).