Semantic Compositions

By any other name just as sour

It's time once again to write about Pinkberry, even though SC has not eaten a single thing of theirs since the last time (and has no plans to ever, ever change that). As incredible as it may be, SC wishes to write in their defense over a language issue of such sublime ridiculousness ([and it IS ridiculous -- lime isn't even a flavor there -- Ed.]) that no reasonable English speaker could fail to agree. As will shortly be obvious, the candidates for unreasonable English speakers far outnumber the reasonable ones, and hold positions of power and influence within the government and legal system.

The story this time involves a lawsuit that first came to SC's attention through an article on the website of the local ABC affiliate, headlined "Lawsuit Claims Pinkberry Isn't Really Yogurt". No, really? As far as your host is concerned, it's not even food, but that's not actually the issue in question here. Here's the crux of the matter:

Steve Lyle, CA Dept. of Food and Agriculture: "The fundamental issue we have with Pinkberry is they manufacture the product on premises."

You see, Pinkberry's super secret ingredients are prepared at each of the companies [sic] 18 stores, not at a state licensed dairy facility. And that is a "fro-yo" no-no.

This is, to put it mildly, crazy talk. SC is not saying that it is ridiculous to grant exclusive licenses to use names based on place of manufacture, but that the reasonable grounds for doing so are wholly absent in this case. One example of an exclusive name use that SC has no problem supporting is Champagne (along with wine appellations more generally); although California wine producers used to fight vigorously to be able to call their products champagne instead of sparkling wine, with a somewhat mixed history of getting results by going to the World Trade Organization, they've largely thrown in with the makers of Champagne, Port, Sherry, and Chianti to agree that they'll all get ahead by protecting their names. (This may have been motivated by a dispute a few years ago where California winemakers found themselves on the defensive against Italian producers over the name Zinfandel.) More generally, wine appellations are part of a larger class of trademark law known as "geographical indications", protected by the World Trade Organization TRIPS agreement, which covers "indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographic origin". Along these lines, SC doesn't have much problem with people wanting to protect feta cheese, Parma ham, and basmati rice, all names referring at least in part to geographic facts about production, and not only to the products being produced.

"State licensed dairies", though, enjoy no such consideration from SC. A state licensed dairy exists wherever the state and a dairy producer decide that they do. The idea that frozen yogurt is yogurt because it was produced in a factory instead of on the premises where it is to be consumed is simply insane. However, as often happens with stories that appear too idiotic to be true, there's another angle. While the Department of Food and Agriculture spokesman quoted above makes the issue out to be one of whether or not the product is manufactured on the premises, the lawsuit in question also turns on whether or not Pinkberry's products meet some more relevant criteria of yogurthood; as Clara Peller might have asked, "where's the bacteria?"

The California Food and Agricultural Code provides a fairly detailed series of requirements for what frozen yogurt must contain to be labeled and sold as such, specified in Section 36991-36994. Specifically, frozen yogurt must: be made from milk, be fermented with one of three families of bacteria, not be pasteurized post-fermentation, have a titratable acidity of 0.5% (lower if it contains fruit), contain at least 3.5% milkfat, and weigh at least 4.0 pounds per gallon of. All of these are lab-testable requirements, and would appear to rule out Pinkberry's yogurt on the simple grounds that it doesn't cover nonfat versions of frozen yogurt, which Pinkberry most certainly claims their product to be (you can view the nutrition facts at their site, but it's Flash-based and so  they can't be linked directly). However, plenty of foods are labeled as nonfat frozen yogurt for sale in California, and the 3.5% figure corresponds to an assumption of preparation with regular market milk (see Section 35784 -- that 3.5% is simply the standardized amount of fat in whole milk) so that would be a very weak argument to hang Pinkberry on. In fact, the more sophisticated argument against Pinkberry-as-yogurt turns on the question of bacteria. According to the L.A. Times, the privately-filed lawsuit spurring this issue claims that Pinkberry's yogurt does not pass the bacterial analysis needed to qualify as yogurt.

In order for an authoritative determination of Pinkberry's bacterial contents to be made, they would have to disclose their ingredient list and publish an accompanying lab analysis. Technically, Pinkberry is in violation of the Food and Agricultural Code here, too -- Section 33704.5 requires that if yogurt is manufactured and directly served on the premises, an ingredient list must be posted in a conspicuous location. Since their ingredient list is presently secret (not a tenable position, with only limited exceptions), from a consumer perspective there's no way to make this determination. This has led to all manner of innuendoes about exactly what goes into the product, some humorous, some more sinister.

So, what ingredients can be kept secret? Not much -- for a summary of Federal labeling requirements, look at page 2 of this consumer guide (prepared by the California Department of Public Health), which notes that everything has to be listed in descending order of contribution to the product by weight. Only those items identified by the Food and Drug Administration as "harmless markers", which basically means flavors or scents which have no discernable health impact (for the exact details, see paragraph (g) of 21CFR501.100, a section of the Code of Federal Regulations dealing with labeling exceptions). If Pinkberry is hiding a proprietary flavoring compound, they can apply for an exception to not disclose it publicly, but they can't hide a lack of bacterial content by claiming a trade secret.

At this point, the fiendish genius of the "no-state-licensing" attack becomes clear. Either Pinkberry admits that they're illegally running unlicensed dairies, or they admit that they're not really producing frozen yogurt. Both of these outcomes are damaging to their business, in a way that not all their competitors suffer from, and not necessarily for particularly sensible reasons. Contrary to the assertion in this L.A. Business Journal article, it is not the case that legally valid frozen yogurt "can’t be reconstituted from powder". It's just that the reconstituted yogurt has to have been prepared in a licensed dairy, and pass the lab analyses. It took SC only five minutes of looking in order to come up with a couple of "dry mix" yogurts that specifically pass the bacterial requirement (generally the problem in these cases -- see the ingredient list in the dry mix in the last smoothie on this Jamba Juice page for specific details). The technology for getting the bacteria requirement met in dry powders has been around long enough that the relevant patent has gone public domain, as well (albeit only recently). Of course, if Pinkberry is doing it this way, they need to be paying for dairy licenses, probably paying restitution for prior violations, and putting up their ingredient list as per the legal requirements. Their competitors, who have most definitely not all been posting their own ingredient lists, should be doing the same, even if they're buying their yogurt mixes from licensed dairies operating outside their stores.

On the other hand, if it isn't yogurt by the technical definition, they shouldn't be going down alone. While we dismissed the nonfat argument as weak previously, it's by no means reasonable that Pinkberry should be the only ones to take the fall on account of a failure to meet an arbitrary technical definition. Anybody who advertises "nonfat frozen yogurt" is contradicting themselves under the terms of the law as written, and it would be entirely reasonable for Pinkberry to take the position that if their "nogurt" is going down, they're taking the industry with them. The mere fact that the law is out of date shouldn't be the entirety of the issue -- if the state is going to get involved only over the question of where the powder was mixed, considering that there is absolutely no geographic indication in the term "frozen yogurt", it is simply absurd that their competitors should be able to advertise a noncompliant product and get away with it.

In conclusion, as much as it pains SC to say so, he sides with Pinkberry. That leaves an original-flavored sour taste in his mouth.

Maybe it's not always nice to say "thank you"

The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live -- did live, from habit that became instinct -- in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. -- George Orwell, 1984, Chapter 1

A coworker sent SC a link to this article from the Daily Mail in Britain, concerning the use of "talking" cameras for public surveillance, whereby operators in a remote control room can speak to the people they are watching. As the article puts it, the cameras are for "publicly berating bad behaviour and shaming offenders into acting more responsibly".  The civil liberties issues with such a system should be reasonably obvious -- although SC hesitates to comment, not being familiar with British jurisprudence on what would certainly raise questions about "unreasonable search" in the U.S. -- but the way in which our assumptions about verbal behavior are upset are remarkable. Take this example of a voice-from-the-heavens order to someone to get off his bike:

The Mail on Sunday watched as a cyclist riding through a pedestrian area was ordered to stop.

'Would the young man on the bike please get off and walk as he is riding in a pedestrian area,' came the command.

The surprised youth stopped, and looked about. A look of horror spread across his face as he realised the voice was referring to him.

SC would certainly be jumping off his own bicycle at that moment. Shortly thereafter, he might start questioning whether or not he had gone insane, and whether anyone else could hear the voices. The absence of both a visible interlocutor and an established context for being part of a conversation without being able to see someone (i.e. phones or walkie-talkies) must be terrifying. It's not clear from the article if signs are posted anywhere to let people know that they're being monitored, or if any other sort of publicity is being employed to defuse a potentially terrifying situation; such signs are routinely the case in much less interactive situations in the U.S., such as the near-ubiquitous cameras at stoplights around Los Angeles.

There appears to be a style guide to try to make the language used very formal, perhaps in the belief that this will make people feel like the process is somehow automated and impersonal, which would be a lot less unnerving than the thought that someone is watching you -- nay, judging you -- when you neglect to cover your mouth during a sneeze:

The control room operators have been given strict guidelines about what commands they can give. Yelling 'Oi you, stop that', is not permitted.

Instead, their instructions make the following suggestions: 'Warning - you are being monitored by CCTV - Warning - you are in an alcohol-free zone, please refrain from drinking'; and Warning - your behaviour is being monitored by CCTV. It is being recorded and the police are attending.'

Mr Bonner [the program manager overseeing the cameras -- SC] said: 'We always make the requests polite, and if the offender obeys, the operator adds 'thank you'. We think that's a nice finishing touch.

That "thank you" sounds just like something out of Robocop, but SC guesses that Mr. Bonner wouldn't appreciate the humor of that thought.

It's not at all the case that we don't have monitoring systems like this in place already in the United States. Prior to moving to Los Angeles, he used to change trains at a station which consisted of little more than a concrete slab on the side of the tracks, an associated parking lot, and a couple of automated ticket machines. In spite of the absence of any obvious personnel, there would nevertheless be periodic announcements which were clearly made by live people with a view of the platform. Some of these announcements were of the type, "Sir, please step away from the tracks". One day, stopped at another station, your host found the control room where the platform was monitored by security cameras, and all became clear.

The train station camera isn't actually a good comparison, though, because there was also a security guard always present at the station, and just about all of the behavioral issues would be handled by him (which presumably nobody would disagree with). This gets us to the crux of the matter: is public misbehavior something we want stopped with perfect reliability? There isn't a day that goes by in Los Angeles when your host doesn't say, "If only a cop had seen that", but these events almost entirely occur while driving. Advocates of cameras for traffic enforcement claim that because driving is a regulated activity, this is a wish that both can and should be fulfilled reliably. Even granting that this is so, walking around in public is not yet something that requires a license, and despite the pragmatic intent of wishing on a cop (venting frustration), SC highly doubts that most people would actually want that wish fulfilled.

Perhaps with enough experience, we could cease to regard being publicly criticized by disembodied voices as strange, in much the same way that many people (not SC) have come to stop viewing people apparently talking to nobody (but actually using cell phones with wireless headsets) as mentally ill. It seems far less likely, though, that we would ever come to view those scoldings as anything but intrusive.

SC the Juror

It's been a long time, far too long. But the rush of non-language-related work has left your host quite dry, and for a while, he's felt like he had nothing to say. That's why it's something of a relief that a very special event finally has given SC something to write about again. That event took place over the last 3 business days (Thursday, Friday, Monday), and was the first time ever that SC reported for jury service (not to say the first time he was summoned, but he'd been excused on all previous occasions). Your host was picked to a jury, and took very careful notes, which the judge permitted him to keep. Alas, this was not true of the all-too-rapidly read jury instructions, which has some unfortunate consequences for a later post, but that will be explained in due time.

In any event, in order to both gather my thoughts appropriately and to maximize the use to which this experience may be put, I will structure this into four posts; today's, introducing the dramatis personae and their opening gambits, one each for the two sides and their often-strained relationships to the plain meaning of language, and a concluding post discussing the deliberation process. Although the case will now enter the public record (no court reporter was present to transcribe the proceedings, but they were recorded electronically, and presumably at least the verdict will be published), pseudonyms will be used to protect the guilty and the comically inept (by and large the same folks). Aside from the names, everything that follows represents the events of the trial to the best of my ability.

Our players are:

• Mr. P., the Plaintiff, who alleges that a bike accident he had in a parking lot is the fault of the lot's owner, and that he is accordingly entitled to damages.
• Stores-R-Us, the Defendant, a company which owns and operates the mall, in their capacity as the managers of the parking lot.
• Keystone Security, the private security firm contracted to provide security services at the mall, and employers of...
• Lt. Clouseau, a mere sergeant at the time of the accident, eyewitness for the defendant.
• Jessica Rabbit, girlfriend of Mr. P., eyewitness for the plaintiff.
• Mr. Marshall Clark, the plaintiff's counsel.
• Mr. Peterson Ryder, the defendant's counsel.
• Dr. Banana Peel, J.D., Ph.D., an expert in slip-and-fall cases whose handbook on these matters is in its 9th edition, testifying for the plaintiff.
• Mr. Kash Andkarry, a retail operations consultant and former grocery store manager, testifying for the defendant.
• Dr. Chop Yougood, a chiropractor, testifying for the plaintiff.
• Judge Job, a man who has had to put up with far more nonsense than any human being should have to bear.
• Does 1-12 Inclusive, the other 11 jurors plus the alternate.
• Your Host, starring as himself.

Our adventure begins with the jury selection process, when 27 complete strangers all showed up in the same room in a Beverly Hills courthouse last Thursday morning. While some of the group had prior experience serving as jurors, by and large this was a new and mildly frightening experience. We had been reassurred in the summons that "most trials" are over in 5 days. But the O.J. trial dragged on for a full year! And the Menendez brothers went 7 months! Surely, we would all be equally unfortunate!

As it turned out, the docket was rather thin for the day, and so after watching a ludicrous video promising lifelong friendships with our fellow jurors, we were all ushered into a small courtroom with a gallery inadequate to the throngs of TV reporters who would breathlessly spend hours of primetime television analyzing our every blink and yawn for clues toward the ultimate verdict. Shortly after, Judge Job appeared to dash our dreams of a year of sequestered vacation and free meals at taxpayer expense -- the trial was a civil action relating to a slip-and-fall accident, and was expected to conclude no later than Tuesday. In fact, warned the judge, if it did not conclude by Tuesday, he would dismiss the jury and invite the attorneys to never discuss this matter in a courtroom again. Clearly, the judge already knew that, like Oakland, there wasn't much there there.

The lawyers then were permitted to proceed to their examination of the jury pool. Mr. Clark, the plaintiff's attorney, began by asking anyone in the room who did not believe that chiropractors provided any medically useful services to raise their hand. Mindful of Radagast's inveighing agains the field, and your host's own skepticism of their utility, SC nevertheless chose to parse the question as asking whether or not we believed all of their services, and not merely those specifically taught at chiropractic schools only, to be useless. On the grounds that some of their services were identical to those performed by physical therapists, which your host had profitably used in the past, his hand stayed down.

Next were a series of questions which your host had to answer in the affirmative: Ever had a bike accident? Seen a doctor for it? Received follow-up treatments? Yes to all -- SC spent 2 months paying twice-weekly visits to physical therapists after back spasms resulting from a bicycle crash during his freshman year in college. Was anyone sued as a result? No --  the bike was successfully crashed without any assistance beyond that from its rider, thank you. Finally, since Mrs. SC's occupation had to be volunteered, did she work with trauma patients? Well, she had just wrapped up a rotation in an emergency room that very day, and this fact was communicated to the lawyers.

With these questions asked of everyone, peremptory challenges began to be issued: a retired policeman was dismissed, as were a dentist, several engineers, and a pair of Hollywood producers (nobody you've heard of; SC interpreted their claims to mean that they worked in the produce departments of Hollywood grocery stores). When 10 jurors had been dismissed, the judge asked both attorneys if they were satisfied with the composition of the jury; receiving "yes" answers from both, he proceeded to dismiss the remaining members of the pool.

After selection and a break for lunch, opening statements were made by both sides. Your host's notes indicate that the battle was decided at this early stage, by the rhetorical choices made by each lawyer. Does this sound prejudicial? We'll wrap up today's post by briefly examining what each one did, and how it set the stage for the proceedings that followed.

Mr. Clark opened the case for the plaintiff with a very brief summary of the facts, resulting in four bullet points in SC's notes:

• One day in December of 2004, Mr. P. rode his bike into the parking lot of a mall owned by Stores-R-Us.
• Mr. P. claims he lost control of the bike.
• Mr. P. suffered oil spots on his face and clothing.
• Mr. P. was treated by a hospital ER, and later, by a chiropractor.

As Mr. P. would himself later say many times on the stand, "That's all -- let's leave it at that." This was the extent of the evidence introduced to us. Mr. Clark closed his statement by observing that we would hear many negative things about his client, and that we should try to keep an open mind to the facts. If you can deduce from this material alone why you should particularly care about oil spots or give someone money based on their clothes becoming soiled, you are exactly who Mr. Clark needed on that jury more than the people he got. Just by listening to Mr. P.'s own representation, the jurors were led to believe: 1) his injuries were not serious, 2) he visited multiple health care providers in spite of (1), and 3) Mr. P. is a man with problems. The plaintiff's one chance to establish credibility with no intrusions from the defense had gone utterly wasted.

In contrast, your host took 2 pages of notes on the opening statement of Mr. Ryder, the defendant's counsel. This began with his claim that he would prove 4 things:

• Stores-R-Us properly maintains their properties.
• Stores-R-Us was not notified of any issue with their property.
• Mr. P. was intoxicated during the events in question.
• Mr. P. suffered no significant injuries.

Mr. Ryder then proceeded to outline facts that would be introduced as evidence in support of these claims: that Mr. P. is a convicted felon, that Mr. P. is a frequent pursuer of personal injury claims, that Lt. Clouseau would testify that the parking lot was inspected hourly, that Mr. P. made terrorist  threats against Stores-R-Us, that Mr. P. left the ER without being treated, that Mr. P. told Dr. Yougood he had no previous history of back or neck pain even though this is now his fourth such lawsuit, that Mr. P. claims to have been shot and stabbed in the back in previous incidents, that Mr. P. never pursued treatment for his alleged chronic pain, and that after a car accident subsequent (by a full year) to the incident in question, Mr. P. told another doctor that he had no prior back or neck injuries, and felt fine.

Your host's notes conclude with a warning he wrote to himself: "watch to see how much of this is substantiated". That was a lot of material -- and if even just part of it was true, it would be very hard to credit a claim of personal injury. Mr. Ryder basically laid out a verbal contract with the jury, inviting us to side with him if he proved his claims (he did not say this explicitly, but this was the effect of the manner in which he presented them). A lay reader might object that the burden of proving claims rests with the plaintiff, not the defendant, but as we were to be told later, in a case of this sort, our findings needed to be based on a "preponderance of the evidence" -- for a given claim X, is it more likely to be true or not true? In laying out their respective cases, Mr. Clark squandered his opportunity to present Mr. P.'s claims in a favorable light, while Mr. Ryder planted the seeds of doubt from the very beginning. Over the next two days of argument, it would prove very difficult to receive new witnesses without viewing them through the prism of doubt placed before us by Mr. Ryder.

Tomorrow: Mr. Clark starts from behind, and finishes further back than that.

Which part of "guilty" doesn't the client understand?

SC loves this story from the Chicago Sun-Times, about an "urban translator" in a bizarre gang-related lawsuit. It begins like so:

Wallace "Gator" Bradley -- former enforcer for the Gangster Disciples -- is now a self-styled court interpreter.

Most interpreters translate foreign languages -- typically Spanish and Polish -- in Chicago's courtrooms.

But Bradley is serving as an urban translator of sorts for former Death Row inmate Aaron Patterson in his lawsuit alleging Chicago Police tortured a confession out of him.

The article nowhere suggests that this is in fact about African-American Vernacular English -- and even Mr. Patterson's own lawyer doesn't claim that there are language barriers in play -- so what's going on?

Well, Aaron Patterson would seem to be the most dangerous witness against himself in a courtroom, even when he's not on a stand. His own lawyer thinks he's a loose cannon:

"Mr. Wallace Bradley has been assisting and it's kind of an analogy of a translator," Avila said. "He is familiar, well, he's familiar with Mr. Patterson and kind of different sensitivities of his personality."

and he apparently has a history in this regard:

In Patterson's bizarre criminal trial, he shouted in court and frequently was removed by marshals. He threatened his own lawyers and even attacked one of them.

So Wallace Bradley is supposed to help keep him under control. That's not exactly the normal job of a translator, but then again, it's not every day that you decide to hire as a member of your legal team someone who's spent their life trying to kill you:

Bradley said Patterson asked him to help with the case despite their being ranking members of opposing gangs at one time.

"At this point there are not many guys that Aaron can trust," Bradley said. "I was with the GDs. Aaron was with the Stones. But members of both our organizations were tortured."

The defense in this case (that would be the state's representative in Mr. Patterson's previous criminal trial) is not happy about this turn of events, arguing that Mr. Bradley is practicing law without a license. SC disagrees. One doesn't need to be a lawyer in order to act as a jury consultant, to pick another example of a non-counsel person you might hire for your legal team (although the last time SC read about such a person stirring up trouble in a courtroom, it wasn't clear that they were actually seated at the defense table, instead of in the gallery). Mr. Bradley is certainly being employed in an unorthodox manner, and this case would be a bad precedent -- if anyone takes it seriously as such -- for the sort of translation services that courts might reasonably be expected to provide to defendants in other cases. But if SC was running the defense, he'd be delighted with this turn of events, and make Mr. Bradley's participation in the case as much of an issue as anything his own client may have done.

SC's day in court

Longtime readers may recall that last December, SC went through an outrageous sequence of events in order to protest an increase in the assessed value of Chez SC. This morning, justice was finally served. It was a novel experience, very unlike what your host had imagined.

Although the assessment process is legally binding, and governed by an extensive body of codes, the administrative hearing process does not have the formality of a court proceeding. Well, maybe a small-claims court. Or Judge Judy's court. In this case, though, there is a board of three assessment officials rather than a single judge.

The actual hearing process runs like so: A few weeks before your hearing date (notice that we're talking about 11 months after the original protest was filed), their counsel calls your counsel (in this case, Dad SC working pro Starbucks), and they discuss the issues. The assessor's counsel outlines what he'd need to see in order to agree with your position, and if you don't have a problem documenting it, the actual hearing should be over in 2-3 minutes. Such was the case for your host.

Like a regular court, there is a swearing in process where you raise your right hand and "swear or affirm" (the present phrase of choice) that everything you are about to say is true to the best of your knowledge. The formulation "the truth, the whole truth, and nothing but the truth, so help you G-d" was entirely absent from this version of an oath. Reasons why this might be so became readily apparent as SC watched the half-dozen cases scheduled before his.

One gentleman came before the board to argue that the assessed value of two vacant lots that he owns (adjoining each other) should be reduced by some 30%, on the grounds that a landslide in nearby property was due to soil troubles and was therefore worthy of a permanent reduction in value. There was a fascinating exchange between him and the chairman of the appeals board:

Chairman: How much do you think your assessed value should be reduced by?

Appellant: Thirty percent.

Chairman: Do you have any quantitative basis for that estimate?

Appellant: Well, I feel any reasonable person would agree that it's a conservative estimate.

He feels this is a good idea, and has nothing else to back it up? Good thing he wasn't being held to a too-difficult standard of truth. Which isn't to say that the case against him was ironclad -- far from it, as it turned out. While the assessor's lawyer argued that comparable homes in the area had suffered no loss in value based on transactions since then, he also had to admit that the landslide actually took place on the hill beneath the man's land, a fact which was not at all known to the board or observers when the above dialogue took place. This disclosure moved the board from rolling their eyes and being seconds from upholding the assessment to deciding to recess for further discussion after the other hearings were complete. SC is of the opinion that this validates the less formal, perhaps less rigorous, reasoning and dialogue of the administrative hearing format -- while the appellant was far from legally savvy, it became plainly obvious that a certain amount of discretion would lead to a more just outcome than the rigid application of formulas.

Another interesting case concerned a man who had been fined $100 for an allegedly false declaration that he owed no property taxes. The assessor's lawyer produced both a grant deed to partial ownership of a timeshare apartment complex near Disneyland -- crucially, unsigned by the appellant although his name appeared in the document as the grantee -- and a quitclaim deed dated earlier this year, in which he relinquished rights to the property. The latter apparently was signed. The assessor's attorney testified that the complex had been in business for many years, and had a long history of legitimate transactions.

The man's opening statement was, "I've never owned property in Orange County, no, never", which is about as unambiguous a claim as can be imagined, and would appear to blatantly violate the oath he had just taken in light of the signed quitclaim deed. However, before simply issuing a summary dismissal of the appeal, the chairman invited him to explain himself. The story, if true, is remarkable.

It seems that this appellant had been to a dinner presentation put on by the timeshare property's owner, and had paid $7,000 up front to buy in. Some time later, he tried to show relatives around the property, and was forcibly evicted by management, who told him that he "owned nothing". He considered suing, but couldn't find a lawyer who would take the case for less than $5,000. Therefore, he attempted to make no further use of the property, and signed the quitclaim deed when contacted about it by the assessor's office. At some point earlier this year, he claims to have run into the same promoter in Las Vegas, offering the same property as part of yet another free-dinner pitch (which is plausible given the nature of timeshared property).

This was simply too much for the chairman, who said, "So you paid $7,000, never got any beneficial use out of the property, would have had to pay at least $5,000 more to change that, and now we're insulting you by fining you $100 for the experience?" This was too much, and everyone in the room started laughing, including the assessor's attorney. Noting that even the attorney couldn't keep a straight face in arguing for the fine, the chairman dismissed it, apologized to the appellant, and moved on to the next case.

It's possible that the appellant's story isn't completely true. It certainly was the case that no legally binding signature tied the man to ownership of the place (except insofar as one can't renounce a title that one doesn't hold). If his story is true, a considerable fraud case might be in order against the timeshare complex -- but given the assessor's attorney's statement, it seems unlikely that any investigation would be launched. Resolving this case demanded a certain amount of prudential judgment that might not accord strictly with the law -- if the man made that story up, he perjured himself. If he didn't, an expensive investigation might nevertheless be launched against a possibly innocent business. It's not at all clear how there came to be an unsigned deed, after all, and it's possible that a scam artist was simply lying about representing the property. Rather than taking serious and potentially very costly actions over a frankly neligible amount of revenue, the chairman decided that the best course of action was simply to let the matter go.

SC found it refreshing to discover that even in cases where notably more money can be at stake than in small claims court (the landslide appellant was asking for a roughly $120k reduction in his assessed property value), it's possible for justice to be served quickly and effectively in an unthreatening manner. While the bureaucrats who stood between your host and his day in court followed formal procedures that verged on malice, the actual practice of the assessment process proved to be nothing of the sort. It was respectful of both the law and common sense, qualities which too often aren't associated with legal discourse today.

Brought to you by the letters Q and W

No, the trip to Virginia didn't go on that long. But your host got sick and was in no position to write coherently over the last few days, unless he wanted to engage in a little Andrew Sullivan-style flublogging. He is, however, quite glad that he didn't follow through on a thought he had on Saturday to offer Mark Liberman a little blog wager over this event.

However, now that SC's better, it's back to seeing just how sick the rest of the world can be when playing language politics. The producers of Sesame Street better be real careful if they ever think about doing a Turkish-language version of their show (not wholly unimaginable; versions have been produced for Israel, Jordan, and the Palestinian Authority):

A Turkish court has fined 20 people for using the letters Q and W on placards at a Kurdish new year celebration, under a law that bans use of characters not in the Turkish alphabet, rights campaigners said.

The court in the southeastern city of Siirt fined each of the 20 people 100 new lira ($75.53) for holding up the placards, written in Kurdish, at the event last year. The letters Q and W do not exist in the Turkish alphabet.

Not having been previously familiar with Turkish beyond some phonological exercises involving vowel harmony, your host went to look up the alphabet. Indeed, the letters aren't in there. They are, however, in the ISO character set for Turkish -- oh cruel International Organization for Standardization, why do you tempt the Kurds so?

But something still felt a little off in this story; did the Kurds carry around signs with just the letters Q and W on them, to communicate a sentiment not unlike carrying around pictures of a raised middle finger in the U.S.? Or were they actually part of Kurdish words? A little Google work revealed that the Kurdish name for their new year celebration is...well, some caution is in order here. Knowing nothing whatever about this issue other than what can be gleaned from Google, it's entirely possible I'm about to be unintentionally provocative towards either Turks or Kurds.

It seems to be relatively uncontroversial that whatever the Kurdish new year is called, its celebration in Turkey was outlawed until fairly recently. Within the first three pages of Google results for the phrase "Kurdish new year", the name is offered as "Newroz", "Nowruz", "Navroz", "Nawroz", "Nowrouz" and "Nowrooz" (links are to the first instance of each form to show up in the Google summaries, at least as of SC's search). So the "w" looks pretty common as a choice for transcribing this word into English. And it would seem they've got the same bilabial glide that English uses that "w" for. /v/ is called out as a separate phoneme, so it wouldn't appear to be the case that given a choice of "v" or "w" to represent the same sound, the "w" is being chosen for political effect. In other words, the banning of letters not in the Turkish alphabet isn't really about keeping Turkish standardized.

Language purity concerns in Turkey date back to Ataturk, and the link here boasts of the Turkish government's achievements like so:

The most important result of the work carried out to date is that while before 1932 Turkish words represented only 35-40 percent of the lexicon, that figure has today reached 75-80 percent. This fact is the greatest proof of the value to the Turkish people of Ataturk's Language Revolution.

Shades of the Academie Francaise! However, the story here isn't really about eliminating foreign loan words, but about outlawing the use of other languages. Language issues are often proxies for other quarrels -- Quebec's Bill 101 was as much about Quebec separatism as anything to do with standardizing signage -- and the ban on non-Turkish characters is as much part of the ongoing Kurdish/Turkish fight as any military skirmish.

No English, no kids

Here's a story sure to spark controversy about language rights.

According to this Fox News story, Judge Barry Tatum of Lebanon, Tennessee, has ordered a Hispanic woman to learn English or risk losing her parental rights. Some important details are omitted -- more on that in a second -- but the Fox story establishes that the mother has been convicted of child neglect (the order came about during appeals), and that she doesn't speak English.

It's hard to come by reliable information in this case -- searching for "Barry Tatum" with Google produces a blizzard of results from highly partisan sources on both sides of the larger immigration debate. The Tennesseean has covered both this case and a similar one involving the same judge. Suffice it to say that clarity is not a feature of the debate.

Most importantly, it's not clear whether or not the judge made statements with the legal force of court orders, or whether or not they were merely admonitions from the bench. Judge Tatum is rather dodgy on this point:

Tatum said the written order in the case hadn't been filed yet and he couldn't recall whether his direction that the mother learn English was merely a suggestion or carried the legal weight of an official court order.

But so is the lawyer pushing the story against him:

In that case, Gonzalez said, Tatum ordered a Mexican woman in a child neglect case last year to learn basic English within six months. If she didn't comply, the lawyer said, a hearing was to be held to consider terminating the mother's parental rights to her 11-year-old daughter.

...

He declined to present a copy of the order, saying the documents were sealed in juvenile court and that he could be held in contempt if he shared the document.

SC isn't much impressed by the claimed fear of contempt of court in this case; while the documents might themselves be sealed, any arguments made to the appeals court would have to at least reference the rulings being appealed. It seems likely that the lawyer is exaggerating for effect. This article from the Nashville Scene suggests that the truth is intermediate: if the woman didn't learn English, termination of parental rights would enter consideration. This L.A. Times article, quoting the court, suggests that Mr. Gonzalez's fear of contempt is tied more to newspaper circulation than legal force. As it says:

"The court specially informs the mother that if she does not make the effort to learn English, she is running the risk of losing any connection — legally, morally and physically — with her daughter forever," reads a court order from the hearing, according to Jerry Gonzalez, the Nashville attorney who represents the woman.

But does it matter whether or not it was a binding order? As the Tennesseean points out in a related editorial, the very fact of such pronouncements coming from a government official undoubtedly is enough to scare people who don't have very much sophistication about the legal system they're caught up in. It sounds threatening.

Moving on from the question of legal force, we come to the question of whether or not the order is just. There is no question that abuse/neglect has gone on in these cases; both of the women written about in the stories linked above have encountered Judge Tatum in the process of ongoing court-ordered monitoring, and in at least one of the cases, the neglect included a failure to get her 2-year-old immunized. Not learning English is not a legally admissible strategy for avoiding compliance with previous court orders, or family law more generally, and it's not clear that the women in question are otherwise making good-faith efforts to comply. The judge may have provided excellent grounds for appeal if the children really do end up taken away, but framing this case as solely a matter of rights for the mothers ignores the child neglect issues that brought them to this point.

Finally, the question of assimilation -- discussed extensively here in the review of Samuel Huntington's Who Are We? -- raises its head again. As the L.A. Times reports, a migrant community of about 1,200 people has developed in the area, including 400 Mixteco speakers. Executive order 13166 aside, it's not realistic to expect the local community to develop bilingual education in Mixteco as well as Spanish. While translation services clearly are available -- the women wouldn't have been able to go through court proceedings without them -- it's not clear how big the burden of the local community should be in providing such services. So far, the discussion has largely focused on language rights -- do the mothers have a right to communicate with their children in a language of their choice? Do they have a right to appear in court without understanding English? By suggesting that these questions have answers with time limits, Judge Tatum has opened up the question of whether or not there are also language responsibilities.

Simon, Garfunkel, and the Law of the Sea

In 1966, Paul Simon and Art Garfunkel scored a hit with a song whose refrain included the lines "I am a rock, I am an island". Reasoning transitively, as far as Simon and Garfunkel are concerned, we can conclude that they believed rocks and islands to be the same thing.

One island, called Okinotori Shima -- "Island of the Sea Birds", is particularly important to Japan, according to the Wall Street Journal (subscription required):

For years, Japan has called Okinotori an island, which allows Japan to claim not only sovereignty but also exclusive economic control of waters extending out 230 miles, or 200 nautical miles, in every direction. This has allowed Tokyo to claim 160,000 square miles of ocean -- an area larger than the entire landmass of Japan.

The Chinese government would prefer that Japan not be able to claim control over all that water:

Chinese interest in Okinotori lies in its location: along the route U.S. warships would likely take from bases in Guam in the event of a confrontation over Taiwan. China's efforts to map the sea bottom, apparently so its submarines could intercept U.S. aircraft carriers in a crisis, have drawn sharp protests from Japan that China is violating its EEZ [exclusive economic zone].

So, China's solution is to claim that Okinotori is not an island, it's a rock. This is something they can do under the Law of the Sea Treaty, which both nations are party to (the U.S. wouldn't be overly worried about Law of the Sea issues in a Taiwan confrontation, having only signed on to a portion of the treaty dealing with fishing rights):

According to the United Nations Law of the Sea, established in 1982 and adhered to by 147 countries and territories, countries can have an EEZ around only an island that has inhabitants, or self-sustaining economic activity...No one has ever lived there, and the atoll's entire exposed landmass is just two mattress-sized boulders barely sticking of the water.

Since the Japanese government hasn't been able to get anyone to inhabit Okinotori, and there's no obvious activity going on out there, Yoshihiko Yamada has taken it upon himself to be the Japanese man who went out to a rock, and came back from an island. Mr. Yamada, chair of a charity called the Nippon Foundation, has solicited a number of proposals to get economic activity going:

One called for building a manned coral-research lab, but Mr. Yamada thought it might be too expensive to shield it from Okinotori's waves, which can tower as high as a four-story building during a typhoon. Another was to open Okinotori to ecotourism, but the drab reef might not merit the long, grueling trip, Mr. Yamada says. He also rejected a plan to cover the atoll with pavement or landfill in order to build a prison. The submerged reef is about 2.7 miles long and 1.1 miles wide and the plan called for filling in part of it. "The island has to be natural to qualify," he says.

But his real passion is to get enough landmass going above sea level:

Mr. Yamada's heart is in another, more ambitious project: To gradually expand Okinotori's landmass until it's big enough to hold a permanent population. To do this naturally -- and thus to abide by the Law of the Sea -- Mr. Yamada is hoping to produce tons of sand using two methods. One is accelerating the growth of coral, which is pulverized into sand by waves, by submerging hundreds of hollow concrete "flower boxes" to shelter coral larvae. The other is to attract large numbers of Foraminifera, hard-shelled microscopic organisms whose bodies become sand as they die. Since Foraminifera are drawn to plants, there will be sheets of artificial turf laid out on the atoll's floor.

It's not clear how this will play out -- Mr. Yamada's scientific advisors expect the processes outlined above to take decades to come to fruition. Nevertheless, the episode is a very clear illustration of how matters of geostrategic signficance can turn on matters as small as the labels we assign to rocks in the middle of the ocean.

Must professors be intelligible to their students?

Some time ago, in the conclusion to the debate over Samuel Huntington's latest work that took place in these pages, I had occasion to recount an unfortunate experience I had as a graduate student in a computer science course, where I was wholly unable to communicate with my non-English-speaking TAs. While I found this an obnoxious state of affairs, it never would have occurred to me to ask for my money back.

State Representative Bette Grande of Fargo, North Dakota, feels differently. Here are the relevant parts describing her proposed legislation (full text available here) for the North Dakota university system:

Grande is sponsoring legislation that would bar teachers from undergraduate courses if they cannot clearly speak English. Students who complain in writing about a teacher's diction would be refunded their tuition and fee payments for that course...Grande's legislation requires instructors to prove their command of English in an interview before they're allowed to teach. The measure also says teachers must be pulled from the classroom if 10 percent of students in a class complain about the teacher's speaking ability.

Before addressing the merits of such a law, let's get the purely pragmatic objection out of the way, as voiced by a university official:

"Our students are very bright and will soon learn to use this law as an excuse to drop any class with a bad grade to receive a complete refund," said Michel Hillman, a North Dakota university system vice chancellor.

Clearly, there is potential for abuse here; as written, the bill would lead to exactly this outcome (section 2 makes this automatic "upon request of the student", with no conditions subjecting the student's claims to review). But it's not terribly difficult to imagine appropriate revisions that could alleviate the abuses, and so I'd prefer to get away from the details of implementing such a law to concentrate on the fundamental issues.

Rep. Grande is quoted making two points in support of her bill. Her primary argument is that "[T]he Number 1 priority of higher education is instructing the student, the paying customer." Secondly, "The current process may be accomplishing the goals of research and diversity, but the question needs to be asked whether these need to be a priority over educating students." I think it would be cheap and entirely too easy to merely dismiss this as xenophobia or bigotry. It is hard to deny that the law is poorly thought through -- it demands that faculty be vetted for speaking proficiency before being hired, and gives them very little protection from student complaints afterwards, which strikes me as a "heads I win, tails you lose" approach to handling language issues. But it's also fair for students to expect that lectures and tutoring will occur in a language they understand. They are, as Rep. Grande noted, the paying customers.

Obviously, that expectation varies by subject. If a student is taking a foreign language class taught through immersion, it would be ridiculous for such a law to be applied -- yet another argument against the bill as it presently exists. Such a bill seems aimed largely at departments where a large number of foreigners immigrate for the purposes of obtaining graduate degrees and conducting research.

A fair rebuttal is that if a field contains a large number of non-native English speakers, then students desiring to pursue a career in that field had better be prepared to deal with them. After all, the students will continue to enjoy linguistic advantages in a number of respects -- many (most?) journals with aspirations of international significance are published in English, conferences are conducted in English, and for the most part, business is as well. In that light, it's hard to argue with Sarah Beck, quoted as follows:

Students must learn to work with people who speak in different ways, and colleges shouldn't be expected to hire teachers "that only speak with a Midwestern accent," she said.

I am not sure whether or not it should be relevant that the bill as written applies to undergraduate education only. I think one might reasonably argue that one's undergraduate major represents less of a commitment to making a career in a particular field than going for graduate work in the same field. Students taking courses to satisfy distribution requirements don't necessarily intend to work in a field which requires accomodating a wide range of levels of English proficiency. It seems to me that Ms. Beck's point is broadly applicable regardless of major, and that the graduate/undergraduate issue is therefore a moot one.

Ultimately, it is easiest to sympathize with Rep. Grande's point in regard to the aims of the institution, of whether teaching or research is to be prioritized. I do not think I am slandering graduate students or junior faculty at research-oriented universities if I observe that teaching is often considered merely a necessary evil to be handed off to those who need to do something for their stipends, or who don't have enough seniority to get out of teaching undergrads. This isn't an attitude that has anything to do with native languages; it's true across the board, especially where publications are the primary metric of success. I would not have been at all surprised to learn that the TAs in the computer science class mentioned at the beginning of this post were exceptional students; if the university denied them funding as TAs because they couldn't meet higher language standards, they might have attracted replacements from within the U.S. or other English-speaking countries, but at the cost of not getting the best research talent from the global pool. At the same time, not all schools try to be research-first, and so this may not be as relevant a consideration for them. Trying to emphasize the importance of teaching is a laudable goal; it's a shame that Rep. Grande's efforts in that regard are unlikely to accomplish it.

Is a difference in voicing worth $40 million?

It seems that a legal fight between two rappers has just been settled, turning on the critical issue of who owns the phrase "back that ass up". Aside from the fact that Messrs. D.J. Jubilee and Juvenile wrote songs that don't actually sound the same, the question is whether or not Juvenile infringed on Jubilee by being second with a similar phrase, both being permutations of "back that ass up".

D.J. Jubilee actually spells the word in question with dollar signs, as can be seen from the track listing of his hundreds-selling album. Juvenile, in turn, wrote a song called "Back That Azz Up". The talented Mr. Juvenile apparently was first to recognize the basic patterns we can't get enough of; his greatest hits also include "Back That Thang Up" and "Mamma Got Ass". Clips for all of these can be found from the Amazon links earlier in this paragraph. Make your own call about how similar the songs are.

The substance of D.J. Jubilee's complaint is that "azz" is just another version of "ass". It's not SC's taste in music (which is not to say he has no taste for rap, this is his all-time favorite), but he rather doubts that the difference in sales success between the two artists can be explained by people's preference for "azz" over "a$$". All other things are not equal in this case, and unsurprisingly, the court agrees.

Buckle up

Your host spent the last three days in Baltimore, and while he had Internet access, he was a bit too occupied to blog. Fortunately for SC readers, the little indignities visited upon him by pompous travel professionals gave him something to talk about when he got back.

So today's subject involves another bit of symbolic language use, this time involving the "fasten seatbelts" lights found on every commercial aircraft in the United States. The Federal Aviation Administration has issued extensive guidelines on the use of seatbelts, many of which may be found here. Little things that you never knew, like the reason why your seat must be upright for landing, are covered in excruciating detail by these documents (it's because they only test the emergency exit procedures in this configuration). Suffice it to say that the "fasten seatbelts" sign has the force of law behind it.

Thus, when a flight attendant tells you that you had better buckle up, it is a statement with the same sort of illocutionary force as "I pronounce you man and wife" or "I swear to tell the truth". Or is it?

Without disturbing readers' imaginations, or burdening them with trivial details, suffice it to say that en route from Atlanta back to Orange County, SC found it necessary to make use of the restroom. It so happened that this occurred during a brief period where the plane was beginning to encounter turbulence, and the light was turned on just as your host reached the lavatory. A sky waitress flight attendant seated in the galley spoke up at this point to say, "Sir, you need to be in your seat and buckled in." Confused as to whether or not the attendant desired your host to dirty the cabin, sir replied, "So I'm not allowed to go to the restroom?". Surprised by a response other than immediate compliance or air rage, the attendant gave SC a what-kind-of-wise-guy-are-you look, and said, "I'm required to tell you that". As soon as he entered the restroom, the attendant made a point of announcing the need for seatbelts to the entire cabin, a behavior which she did not engage in during two prior uses of the light during turbulence, nor on a subsequent use.

Normally, one might let such statements pass as nothing more than petty authoritarianism. However, since commercial flight is heavily regulated, and many instructions to passengers do have legal force, your host decided to investigate this after getting some sleep.

So what's the verdict? Well, Air Carrier Operations Bulletin 1-94-27, entitled "Passenger Seatbelt Discipline", makes no reference to this specific situation. It advises attendants that many passengers treat the pre-landing request to fasten seatbelts/put seats up/turn off devices/etc. as an instruction to go to the lavatory, but makes no reference to in-flight practices during turbulence. Federal Aviation Regulation 121.317, which covers passenger information, stipulates that the "fasten seat belt" light shall be turned on during surface movement, take-off, landing, and "any other time considered necessary by the pilot in command". It further mentions that "Each passenger required by § 121.311(b) to occupy a seat or berth shall fasten his or her safety belt about him or her and keep it fastened while the “Fasten Seat Belt” sign is lighted". It does not, however, say that lavatory use is precluded. Finally, Flight Standards Information Bulletin for Air Transportation 95-25, also known as "Policy for Passenger and Flight Attendant Use of Seatbelts during Turbulence" makes no mention of lavatories.

On a very literal reading of the regulations, then, the attendant is correct that she had a duty to inform SC to fasten his seatbelt -- but nowhere is there support for the conversational implicature of her behavior, namely that your host should not use the restroom. Plainly, no passenger who is in the restroom at the moment the light is turned on could comply with 121.317's requirement to "fasten his or her safety belt about him or her and keep it fastened while the “Fasten Seat Belt” sign is lighted". So unless it is established practice to handcuff such passengers upon exiting the restroom, and charging them with a crime once on the ground, we may conclude that the regulation is not intended to prevent lavatory use during flight.

This is hardly the first time that SC has witnessed aggressive flight attendant behavior based on the FSB light. On a flight to Fort Lauderdale earlier this year, the light was kept on for some 40 minutes after the plane had reached cruising altitude, not because of turbulence, but to keep the aisles clear so the attendants could get drink service done and then sit down as quickly as possible. This was confirmed by a cart-pushing attendant who confronted your host when he attempted to get something from his carry-on bag after waiting nearly a half-hour past take-off.

SC has written before on the aggressive behavior of security, who often are concerned to use the legal force they are endowed with to suit agendas other than the actual convenience/safety of customers. These displays of attitude are made easier by the knowledge that passengers, concertgoers, etc. are highly unlikely to take the time to research the relevant laws and know what powers that guards or stewardesses have. It is not necessary that a statement have the illocutionary force provided by real legal authority, so long as the hearer has no reason to believe otherwise.

Says who, kemosabe?

A few months ago, your host was disappointed to learn that Tonto didn't really call the Lone Ranger "kemosabe" as a pun on "quien no sabe", a revelation which came courtesy of Languagehat. On the other hand, it's not exactly the case that it means "trusted friend" as the series led people to believe.

This came up yesterday in the context of a Canadian National Post story reporting on a woman who claimed to be offended by her supervisor for calling her kemosabe. The decision is rather amusing, at least in the paper's wording:

After its day of reruns and hearing several Mi'kmaq witnesses, the independent board of inquiry concluded the TV western treated native Americans in a "demeaning and disrespectful manner."

But, it said, the term "kemosabe" -- Tonto's word for his white friend the Lone Ranger -- did not really offend the Membertou, N.S., woman.

Purely as a matter of mental states, it's hard to see how the board of inquiry determined that the woman actually believed she wasn't offended. Of course, what the reporter means isn't that they decided that she was lying or otherwise being dishonest about being offended, but that the acts involved didn't actually rise to the standards of offense being considered.

There are two distinct issues at hand. First, is the term itself offensive on its own terms? That is, would it be clearly understood by speakers of the language to be giving offense? Second, is the use of the term intended to draw attention to the woman's Indian heritage? Note that this latter question doesn't turn on whether or not the attention is positive or negative -- in working as a cashier at a store conducting business in English, there's no reason that the woman's background should have come up, even if the store manager went out of his way to say "Mi'kmaqs are cool!" every time he said "kemosabe".

The answers in this particular case appear to be: maybe and no. In regard to the first question, the etymology of the word doesn't involved "trusted" or any other compliment. Now, there's no reason to believe that the store manager in question had any special knowledge of Ojibwa or other Indian languages, and his self-defense is consistent with someone whose knowledge of the term comes from watching the Lone Ranger. On the other hand, the evidence presented both in the link above and as recounted in the newspaper suggest that if kemosabe is a real word in Mi'kmaq, it means "spy" or possibly "thief". Certainly someone who skulks around, which isn't particularly nice. But it's not clear that the manager had any idea about that.

As for the second question, it's pretty clear that: 1) the plaintiff was not being singled out for being an Indian, and 2) she didn't feel that being called by some Indian word was a bad idea in principle. Regarding the first part, the story notes that "Her boss, Trevor Muller, referred to her and other employees as kemosabe." More to the point, though:

Mr. Muller said it meant "trusty friend." Ms. Moore asked to be called "nitap," Mi'kmaq for "friend," but the board found Mr. Muller called everyone "kemosabe" and didn't stop at Ms. Moore's request.

So clearly, the manager wasn't trying to say "hey everyone, look who's Indian!". Nor did the employee find being called by an Indian name objectionable. Nevertheless, it's clear from the article that the employee found the nickname annoying, and the boss is a jerk for not being willing to knock it off when it went too far. Being a jerk is not, so far as SC is aware, actually illegal in either the U.S. or Canada. It's hard for SC not to conclude that the employee wasn't actually just frustrated that her boss was annoying, and she resorted to the only legal recourse she could think of. Really, it's too bad that this couldn't have been resolved through a bit of linguistic behavior which seems all too rare these days -- a serious conversation between adults.

That's an order, in any language

In talking about bilingualism and language policy in the United States, there are few better places to start than with Executive Order 13166, signed by President Clinton in August of 2000. The order specifically requires that:

Each Federal agency shall prepare a plan to improve access to its federally conducted programs and activities by eligible LEP persons. Each plan shall be consistent with the standards set forth in the LEP Guidance, and shall include the steps the agency will take to ensure that eligible LEP persons can meaningfully access the agency's programs and activities.

While the stated intent is "only to improve the internal management of the executive branch", and therefore is held not to "create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers or employees, or any person", the standard interpretation of such orders is that any organization receiving federal money is subject to the same rules and regulations as any federal agency. Therefore, it became incumbent on recipients of Medicare dollars -- read: HMOs, hospitals, and insurance companies -- to provide translation services. Despite the suggestion that no new right to sue is created by the order, the official opnion of the Justice Department's Civil Rights Division is that failure to provide translation services constitutes discrimination by national origin, which is well established as a reason to sue.

We're going to look at how the medical community has responded to this for 2 reasons: 1) health care spending is one of the largest portions of government budgets at both the state and federal level (although as Sam Huntington notes in his new book, the state governments are federal; the proper distinction is state and national, but we'll continue with the common usage), and 2) since Mrs. SC is a medical student, SC reads the articles in her journals applying to this issue.

It didn't take long for the American Medical Association to respond to this order in several ways, summarized in this report. From their perspective, there are several problems with making translation services a mandatory part of receiving government funding -- perhaps unsurprisingly, they all turn out to be monetary. First, as the guidelines published by the Department of Health and Human Services note, "Coverage extends to a recipient's entire program or activity, i.e., to all parts of a recipient's operations. This is true even if only one part of the recipient receives the federal assistance", which the AMA interprets to mean: even if a single doctor in private practice sees just one Medicare-insured patient, that doctor is legally obliged to provide translation services for all of his other patients. Second, due to conflicts with other regulations protecting patient privacy, it is not permissible to use family members or otherwise willing friends and neighbors to act as translators. Finally, the administrative burden on physicians in private practice is substantially greater than on large companies; hence, the AMA recommendation that "the burden of this program should not be on physicians' offices".

Like any politically savvy organization, the AMA hedges its bets on how to handle a legislative issue. Thus, as the memo linked above notes, the organization simultaneously pursued a bill introduced by now-retired Congressman Stump from Arizona to nullify 13166, and a strategy of negotiating with the Bush adminstration to try to reduce the scope of the mandate and control the costs associated with it. The House of Representatives' official website has no record of a floor vote on Congressman Stump's bill, so we may assume it died in committee. As for the strategy of negotiation, the HHS guidelines linked above are from the end of 2003, and so with the benefit of hindsight, we can analyze the results of the AMA's lobbying.

The present-day guidelines distinguish between written ("translation") and oral ("interpretation") services, and distinguishes further between emergency and non-emergency situations. As can be seen in section VI, part B, the prohibition against family is somewhat relaxed, and another option besides hiring staff is prominently highlighted: using telephone interpreter lines. In fact, it is that last option which has become the standard for care. Even in areas with predominantly minority populations and corresponding office staff (Mrs. SC has done stints in offices serving primarily Vietnamese speakers, as well as primarily Spanish speakers), it often happens that there are more languages spoken locally than a particular doctor's office can accomodate. Thus, an office staffed by Vietnamese doctors and secretaries may still need to make use of the phone service in order to efficiently accomodate Hmong patients.

It was probably predictable that such an outcome would emerge from this political battle; such conflicts rarely end in decisive victory for one side. As an economic outcome, the worst has been avoided -- contra AMA mailings from 2000-1, there are no mass bankruptcies of doctors who can't afford translation services -- but a company which formerly struggled to survive (Language Line has been through at least three owners; the original founders, AT&T, and presently a venture capital firm) has now effectively become subsidized by government order. Aside from the economic results, the policy enshrines a state of affairs where a segment of the population is presumed permanently unable to communicate in the de facto standard language. It's this last issue that we're going to examine in more detail over the next week as we discuss Samuel Huntington's Who Are We?, and its implications for language policy in the United States.

(Edited at 8:13 p.m. on 6/16/04 as per comment.)

Terms of endearment

Recently, there's been considerable controversy over the behavior of football players at the University of Colorado during the (ongoing) tenure of coach Gary Barnett. A number of female students have alleged evidence of sexual wrongdoing, including the first female kicker in the history of the school. An investigation by the university regents concluded by finding inadequate evidence of wrongdoing, and none of the university employees involved found themselves out of a job.

However, some of the women continue to pursue a lawsuit through the federal courts, and today, we have an interesting glimpse into exactly what constituted acceptable behavior in the minds of the regents. No less than the university president claims that a four-letter word beginning with "c" is not always a derogatory term towards women. The reporting is fascinating:

In the deposition, Hoffman was asked whether the "c-word" is "filthy and vile."

She said she knows the word is a swear word, but "It is all in the context of what--of how it is used and when it is used."

She was asked, "Can you indicate any polite context in which that word would be used?"

Hoffman answered, "Yes, I've actually heard it used as a term of endearment."

A CU spokeswoman said President Hoffman is aware of the negative connotations associated with the word.

But, the spokesperson said, because Hoffman is a medieval scholar, she is aware of the long history of the word. She said it was not always a negative term.

Without immediate access to an OED, your host can't check that last claim, but even stipulating to its truth, he rather doubts that any football players used the term, saw an unhappy reaction, and said, "Of course, you know I meant that in the medieval sense, right?".

It might be more complicated if the term had been used by one woman to another. A certain word beginning with "n" is well-known for being a slur against blacks, but also for being used in an affectionate manner by rappers as a way of referring to their "crews" (although the hostile use is hardly unknown in that community). On the other hand, SC isn't aware of any sort of history remotely like this for the c-word in question, and any such defense would probably be laughed out of the courtroom. Then again, reflecting on the history of successful defenses in this country -- the phrase "Twinkie defense" comes to mind, although the popular understanding isn't strictly accurate -- perhaps optimism shouldn't be called for in this case.

Bill Cosby versus the LSA

Before writing anything of substance, SC begs forgiveness from his readers for starting from the Washington Post's gossip column. Especially since Richard Leiby took it over (the real Reliable Source will always be Lloyd Grove).

Having said that, though, SC wishes to direct your attention to the section of the Wednesday, May 19 edition labeled "Cosby, Saying the Darndest Things". (The reference, for those too young to realize that Bill Cosby used to be funny, is to this show, which is in turn based off of an old Art Linkletter routine.)

The salient linguistic point is Bill Cosby's riff on what SC will refer to exclusively as AAVE (African-American Vernacular English). It's a clunky term, but the fact that it's so hard to name the phenomenon in question without giving offense is part of the point. Quotes the Post:

"Ladies and gentlemen, the lower economic people are not holding up their end in this deal," he declared. "These people are not parenting. They are buying things for kids -- $500 sneakers for what? And won't spend $200 for 'Hooked on Phonics.' . . .

"They're standing on the corner and they can't speak English," he exclaimed. "I can't even talk the way these people talk: 'Why you ain't,' 'Where you is' . . . And I blamed the kid until I heard the mother talk. And then I heard the father talk. . . . Everybody knows it's important to speak English except these knuckleheads. . . . You can't be a doctor with that kind of crap coming out of your mouth!"

Contrast that with the Linguistic Society of America's declaration of 1997, back when a plan to use AAVE in officially sanctioned cirricula was floated by the Oakland, CA school board:

The variety known as "Ebonics," "African American Vernacular English" (AAVE), and "Vernacular Black English" and by other names is systematic and rule-governed like all natural speech varieties. In fact, all human linguistic systems--spoken, signed, and written -- are fundamentally regular. The systematic and expressive nature of the grammar and pronunciation patterns of the African American vernacular has been established by numerous scientific studies over the past thirty years. Characterizations of Ebonics as "slang," "mutant," " lazy," "defective," "ungrammatical," or "broken English" are incorrect and demeaning.

SC wishes that the resolution had been worded a bit differently -- the comment "all human linguistic systems...are fundamentally regular" is particularly mistaken (last time your host checked, the debate was over whether natural languages were context-free, not regular) -- but this sort of nitpicking doesn't really matter when we've failed as a field to educate the public on linguistic terminology. The important point, however, is that there are two very fundamentally different views of public policy on language being discussed. Equally important to notice is that this is in fact the same issue as bilingual education and the multiculturalism debate, a point obscured by the fact that AAVE is mostly intelligible to speakers of other English dialects. (By "mostly intelligible", we are attempting to point out that important details of interpretation would be missed, such as the habitual use of "be" in AAVE, not that there is anything missing from AAVE which would normally be found in other languages.)

For Bill Cosby, Bob Ehrlich, and those generally in favor of what we'll call the monocultural position, the benefits of standardization in language are many and obvious, as are the benefits of integration into the cultural mainstream. The case is a compelling one, and should not be dismissed lightly. Among the arguments in favor of teaching -- and culturally preferring -- mainstream American English are that it is economically beneficial to all parties, both for purposes of immediate employment as well as for access to higher education. As Cosby observes, "You can't be a doctor with that kind of crap coming out of your mouth!" (hold on, we'll address the objections shortly). Another important economic benefit of standardizing is a reduction in the amount that needs to be spent on providing translation services and redundant documents (along with personnel trained to read them); one example of how controversial this can be is Executive Order 13166, which mandated that federal agencies and federally funded organizations must provide translation services into any language requested by their clients. There is plenty of room to argue over whether or not the order creates new rights, keeping in mind that enforcement and original intent are not always the same thing; it is certainly the case, however, that the medical field considers the burden onerous. While we'll address language policy and the medical field in considerably more depth later this month, suffice it to say that your host believes the monoculturalists score a fairly decisive victory when arguing on economic grounds.

Public policy is never purely a matter of economics, though, and thus the monocultural view is opposed by the multicultural view. As countless observers have pointed out before, America is uniquely a nation of immigrants. The contribution of immigrant cultures to the larger American tapestry cannot be overstated; witness the proliferation of Chinatowns, of Little Italys, of Little Tokyos. Or the Polish neighborhoods of Chicago. Or, since in this case we're discussing primarily AAVE, the enormous contributions of peculiarly African-American culture to the larger American mainstream. Bill Cosby might regard it as pernicious (and SC won't call it an unmitigated good), but rap and hip-hop have been mainstream entertainment for a long time, and are enjoyed by Americans of all classes and colors. Less controversially, so have rhythm and blues, rock-and-roll, and jazz, all of which have roots in what is undeniably the African-American experience as distinct from the American one generally. To the extent that these cultural contributions depend uniquely on AAVE, it is not merely worth preserving, but essential. And as regards Mr. Cosby's lament that "you can't be a doctor" and speak this way, the multicultural response is that, so long as a prospective medical student can handle the English skills required to attain a medical degree, and demonstrate satisfactory knowledge and performance, then it is no deficiency to be able to speak this way with patients, particularly in neighborhoods where such speech is prevalent.

As with most philosophical positions, it's easy to stake out variants of these which are more or less extreme. And it shouldn't be assumed that these positions line up neatly with the left/right split that generally characterize American politics (a point made first by Mark Liberman).

Although we've used terms suggestive of the idea that culture and language are tightly bound, there's room for compatibility in either case with a variety of positions on culture. It ought to be possible, at least in principle, to firmly hold the multicultural position staked out above, while simultaneously holding dear the common American heritage that follows from our founding documents and national experiences. Similarly, it ought to be possible to recognize that not everyone advocating the official adoption of English as a national language is motivated by racism, and that maintenance of a multilingual culture imposes real economic and social costs. One can find adherents of the extreme versions of both views making appeals to peculiar sorts of "nationalist" ideologies -- monoculturalists, to an idealized "Anglo-Protestant" past that never really existed in America; multiculturalists, to irredentist visions of effectively resegregated communities.

So we'll conclude for now by returning to why it's so hard to even decide what to call AAVE. Language policy is bound up tightly with a number of assumptions about politics and cultural attitudes, and even attempting to frame the terms of debate is subject to great controversy. When someone refers to the dialect in question as "Ebonics", others may assume that a certain amount of racial pride is being expressed (if the speaker is black), or possibly that condescension is intended (if the speaker is white). The phrase "Black English" is subject to questions of racism on the part of the user, depending on whether or not the hearer considers "black" to be a derogatory epithet (and also whether the speaker seems to be implying that all such people speak in this manner). Even AAVE carries a certain whiff of patronization if one is inclined to be looking for offense -- after all, nobody spends time talking about WASPVE, or "African-American Formal English", either. In order to have a reasonable discussion about language policy -- or any contentious subject -- there first has to be a willingness on the part of everyone to agree on terms, a condition which is difficult to meet under the best of circumstances.

2, 8, it's all the same

Courtesy of the Wall Street Journal's "Best of the Web" feature this morning, a story which they caption:

"Wouldn't That Make Him an Octogamist?"

According to the story, when wife #8 of Anthony Owens got suspicious that he had been married before without subsequently divorcing the other women, she did the entire criminal investigation herself. As a result of her work, he was successfully prosecuted on charges of bigamy.

The WSJ writer is trying to be clever ([and succeeding beyond your wildest dreams, bud -- ed.]), but it raises an interesting point. Since polygamy is illegal in the U.S., any number of spouses above one is grounds for prosecution. The way we talk about it, though, is slightly anomalous.

In modern English, we can only inflect nouns to be either singular or plural. It wasn't always like that; in Chaucer's time, English had a dual form as well (which many other languages also do). So at that time, it would have made more sense to have a three-way distinction, i.e. monogamy/bigamy/polygamy. Bigamy isn't really syntactically marked with dual morphology; we can just as easily stick any other Latinate counting term on the "-gamy" root. Nevertheless, it's not a form with generic plural meaning.

One of the universals that Joe Greenberg published in his landmark 1966 study (and which gets a good treatment in Bill Croft's Typology and Universals; see page 98) was an implicational hierarchy relating duals and plurals: no language would have dual morphology unless it also had plurals. Morphemes meaning "two or more" are exempt from this, since they're not strict duals, but otherwise the rule holds.

We would expect, on the basis of Greenberg's findings, that once English dropped the dual form, that the vocabulary would shift to maximize the cases that it covered. In this case, that would mean referring to plural marriages as "polygamy". Since our legal system had already developed a history of referring to plural marriage as "bigamy", instead we've kept the form meaning "two" and extended its definition to mean "two or more". Thus, the law has generously acted to save linguistic theory.

Regulating discourse

Your host didn't expect to have two posts on Language and the Law so close together, but shortly after commenting on the definition of "cruising", he received a telemarketing call from his suddenly endangered provider of television programming, DirecTV.

Scott Adams penned a characteristically biting Dilbert on this point some time ago. In the first panel, Dilbert is eating dinner when the phone rings. The caller informs him that he's from the local phone company, and asks if it's a bad time to call. Dilbert says "no". The strip concludes with the caller hanging up, saying, "Oh, then we'll try again later".

It was because this was so typical of the telemarketing attitude -- not to mention the insidious autodialers which leave people saying "hello? hello?" before the lazy bum on the other end notices that the phone has been picked up and starts his pitch -- that Congress saw fit to do this. However, the law explicitly excluded businesses with which people already had existing relationships (not to mention political campaigns, although SC has an anecdote about that for later).

Official SC policy in handling these situations is to allow the caller enough time to identify themselves and make it clear that they are reading from a script. Upon confirmation of this fact, your host informs the caller that he strictly refuses to buy the products of any company which markets to him in such an intrusive fashion, and that if they do not immediately take him off their marketing lists, and then hang up, his next order will be a service cancellation. This strategy has never yet failed to produce the desired result, although SC was once stunned into silence by AOL's strategy of waiting for him to call technical support, who then launched into a sales pitch for additional services before handling the issue at hand.

Obviously, this sort of testiness is not especially fair to people who are merely carrying out decisions made at a much higher level of management, a point which several readers have made in these pages before. SC would defend himself in this regard by noting that these people have willingly accepted jobs where harrassing people is the point, and not a mere incident of their larger job function.

However, stepping back from the matter of individuals for a second, the debate over telemarketing is merely one symptom of a larger issue, the question of what society considers polite discourse. The argument is sometimes advanced that the law is merely a codification of existing values, but in this case, SC thinks that it's only true in an ironic sense. It is specifically because notions of r