thought of the day
I'm really swamped at work today; posting will be a bit slow.
However, I did come across this while typing a decision, and while it's apropos of nothing, I did find it very interesting.
In Cabell v. Markham, 148 F2d 737, 739 (Second Circuit 1945), Judge Learned Hand stated:
As Holmes, J., said in a much-quoted passage from Johnson v. United States, 163 F. 30, 32, 18 L.R.A., N.S. 1194: “It is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”
Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily, most reliable source of interpreting the meaning of any writing; be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that the statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
Just something to think about in regards to words and implied meanings.
Comments
I think it is apropos of something, particularly in this on-line world. Moxie and I have had several IM chats in which we examined the limitations of this type of communication. Misunderstandings are too often the rule, rather than the exception. To further complicate things, some people, myself included, are not good enough at expressing themselves in written speech, to always be taken literally.
Nuance is virtually impossible to express or control in this medium, and the serial, simplex nature of the conversation, can leave no room for explanation or amplification. Once said, it remains said, whether in context or not, and follow-ups don't carry the same weight as a duplex conversation.
I think your summation is spot on.
Posted by: RightWingTexan | November 27, 2002 12:39 PM
Can this be summed up in "K.I.S.S."?
lk
Posted by: lk | November 27, 2002 01:14 PM
I can't believe you're letting work interfere with posting. I guess the terrorists really have won...
Posted by: Joe McNally | November 27, 2002 02:04 PM
That is interesting - one of the ongoing disagreements between conservatives and liberals - at least regarding Australia's High Court - has been the battle between the conservative literalist judges and the liberal "lets try to understand the intent of the legislation" judges.
I guess a challenge when trying to understand the intent of legislation - or more importantly, a constitution - that may have been written many (220+) years ago is the completely different societal context between then and now. For example, the reasons behind "the right to bear arms" in the 1770's in the US needs to be looked at in terms of the context of society at that time.
So how does one interpret the "purpose or object" of the statute? And when one does, you can guarantee that some group impacted adversly will squeal loudly.
Hmm - here is another thought - maybe in every piece of legislation our congresses pass, there should be right up front a "Statement of Purpose and Objectives" that the legislation is intended to address. And every piece would be subjected to a "performance review" after a period of time to see whether it actually has achieved those objectives.
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Nice redesign, but I don't see any navigation (everything that was on the right-hand side of the page in the old design). I assume it's there - I just can't see it on IE 5.2 Mac OS 10.2.
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