Owen D Young, who served as president and chairman of GE from 1922-1939, told a story on himself (quoted in the Ida Tarbell biography) about his days as a young lawyer working for Stone & Webster. His assignment was to obtain streetcar franchises for the company in various cities, and he was particularly proud of the contract he negotiated with El Paso…it explicitly gave S&W the right to run trolley tracks “in every street, present and future of the city.”
Shortly after Young left El Paso, though, another guy–a real operator named Theodore Barnsdall–visited the city, and after paying $25000 to the owner of a tiny, mule-powered street railway (which Young had viewed as having no value other than the $50 that the mule was worth) got introduced to the city council. He also obtained a contract from the city–identical to Young’s except for the words “in the middle of every street, present and future.”
The wording of Barnsdall’s contract made the earlier contract useless…and he insisted that S&W pay him a substantial sum to buy him out. They did. (“The bitterest humiliation of my professional life,” said Young in recalling the incident.)
Words do matter, and they matter particularly in contracts, laws, and regulations. You’d think that if anyone would understand this fact, it would be lawyers–a class of people of whom there is no shortage in either the legislative or the executive branches of our government. Yet our Presidential and Congressional leadership strives to push thousand-page bills through the system and turn them into law, heedless of the damage that can be done by insufficiently-thought-out concepts and by simple bad drafting.
We have seem a relatively small example of the harm that can be done by carelessly-passed legislation in the case of the Consumer Product Safety Improvement Act, which is pointlessly causing devastating harm to thousands of businesses–especially small businesses. Multiply this damage by a hundred thousandfold to imagine what could be done to people and to the economy by the energy and healthcare legislation if they are not carefully thought out and drafted.
In my post new frontiers in irresponsibility, I asked “What would we think of a financial manager/advisor who invested all of a family’s money into a particular investment without doing serious due diligencewho, for example, put all the money into purchasing a fast-food franchise without bothering to read either the prospectus or the franchise agreement? How about “violation of fiduciary responsibility?””
Isn’t the whole point of having lawyers in Congress supposed to be that they have sufficient experience with legal matters to ensure that legislation is drafted in a way that unambiguously says what it is intended to say?..and, even more importantly, that they supposedly have sufficient experience in the analysis of complex situations to determine what it should be intended to say? In today’s world, it’s not at all clear that a Congress comprised primaily of lawyers can really have the knowledge and experience to do the proper thinking about the “should” part of the equation–but that’s no excuse for a failure to make a serious and responsible attempt to do so. And when thousand-page bills are rushed through in a matter of days or weeks, even the relatively straighforward matters of drafting are unlikely to be done adequately.
Mr Young learned about the importance of caution in document-writing at a young age, at a cost of probably only a million dollars or so (in today’s money) to his employer. Most of today’s Congressmen are considerably older, and the cost of their lack of caution will likely be infinitely greater–and paid by us all.
(Source note: Ida Tarbell was famed as a journalistic “muckraker”–although she didn’t like the word–and a leading figure of the “progressive” movement. She wrote vitriolically about many business figures and companies, including John D Rockefeller and Standard Oil–it’s interesting that her bio of Owen Young, which I picked up in a used bookstore last week, is almost completely adulatory.)
“in the street”
“in the middle of the street”
“in the middle of the street, in and upon the surface”
“… being the natural, bricked, or other finished surface, whatsoever”
“… and where needed extending to the sides of the street and around the corners”
“… and to include the right to string overhead lines for power or communication”
“… with the right to build necessary shelters as needed, in our sole determination”
“…” “…” “…” “…”
$25,000 for a mule and a cart was probably what bought off the city council. The words didn’t matter. They would have voided the prior contract by some means.
We don’t live under the rule of law. We live under the rule of the deal. That government and our government does not respect the simple, plain meaning of contracts or of laws, unless it has no stake in the outcome of the lawsuit or determination.
1000 page bills are tyranny. They can mean one thing or another based on a few words here and there. If we are a free people, we cannot join the lawyers in arguing over a word here or there. It is a tyranny when one or two omitted words change the meaning that everyone rationally meant at the time. Like our current arguments about the Constitution and many aspects of the Federal Government.
Remember Pres. Clinton’s line: “it depends on what the meaning of “is” is.
A few words about policy
Guns, Words, and the Constitution
With these 1000+ page un-read bills it has literally got to the point where, as in the old Soviet Union, the ‘law’ is such a complex, opaque morass of contradictory rules and regulations that anyone, anywhere at any time can be accussed of something. Who is targeted in any particular instant is up to even the lowest order functionary. Who prevails is an expensive lottery.
I suspect the ‘unintended consequences’ of the CPSIA were not actually unintended. Those behind this act may well have known (as anyone with a brain should know) what it would do to small business. As we know, big business is safely in league with big government – small business is the enemy of both (for different reasons).
Even the most unambigous statements can be interpreted any way you want. The meaning of the constitution changes from justice to justuce and SCOTUS to SCOTUS.
Jonathan,
Not only do I agree with you, I think it’s worth adding another point (or ten).
Not sense the dawn of Time have Lawyers been shy about using ambiguous language as a rhetorical device. In fact, while some rare men in history were Lawyers AND Statesmen, and considered to be wholly and sincerely dedicated to the advancement of the Art of Law to the extent that they shunned the cynical use of rhetoric and fallacy in their Practice of the Law… The overwhelming majority of Lawyers study Rhetoric and NOT Logic and are forever one step away from being unapologetic rascals and shysters.
As Students of Rhetoric, Lawyers…. learn to craft their Arguments to suit predetermined Conclusions, using sound logical principals when available, but applying the craft and cunning of rhetoric when they can find no valid logical defense of the Conclusion they wish to support. In Greek, “rhetor” is a public speaker, concerned with entertaining his audience, whilst convincing them of this that or another thing.
This is the basis of the Legal profession… not the pursuit of truth or clarity or justice or the common good, per say, but rather to serve as a licensed advocate for some Interest, Conclusion, Litigation, and/or Faction of a public dispute. Aristotle wrote that Plato didn’t even consider Rhetoric a species of Analytics (logic) or Dialectic precisely because a serious philosopher wouldn’t stoop to purposefully using semantic tricks and fallacy to defend a proposition he knew to be flawed or fiction or beyond his skills to sufficiently support. Aristotle disagreed, considering the Rhetoric an ART, rather than a Science (due to it’s incidental relationship with truth, no doubt), but an important Art due to it’s ability to sway the multitudes who’d be otherwise immune to reason anyway. (Multitudos non ratione ducitur sed impetu).
Hey, how many times did President Reagan use some rhetorical trick he learned as an actor to skillfully defend a valid logical position without even bothering to repeat an argument the audience had already heard a hundred times.
So what does this have to do with the language and wording used in crafting legislation and contracts and the like? Well, Congressmen are mostly Lawyers because the modern citizen is too ignorant to appreciate the difference between an entertaining convincing liar who says stuff they like, and a sincere, honest guy who stinks at public speaking and tells them facts and stuff they don’t want to think about or believe. Thus successful politicians are USUALLY lawyers, because they actually went to school to learn how to look others in the eyes and not blink as they lie through their teeth, trying to present either side of a dispute without caring (flip a coin). They’re good salesmen, and know when to be charming.
These same skills that make for great politicians (like President Obama, or President Clinton), don’t typically translate well into plainly written, unambiguous legislation. Nor imply any real understanding of whatever issue they happen to be passionately and poetically advocating. So politicians leave most of the actual crafting of legislation to members of their staff, and lobbyists, and special interests, and committee lawyers who specialize in “Legalese”; and the text of the Bill is passed around and pissed on by secretaries and interns and the drug dealers that deliver to the Congressional offices on the Hill, and etc.
And the result as often as not is vague, obscure, gibberish that can be interpreted ten different opposite ways depending on who expects the “Law” to be enforced in a given context (just as Garland pointed out). Even when there’s a bi-partisan consensus regarding a needed piece of legislation, Washington is so full of half-wits convinced of their own destiny and genius that the end result is a Law that can’t accomplish what it’s intended to accomplish because no one involved from all the Congressmen on the Committee to their COSs and LAs expects to actually have to enforce the Law they’ve written… I can assure you from experience that pestering self-important Virginians and Washingtonians over a fatal flaw in a piece of legislation will make one an endless amount of enemies, and not a single friend for your trouble.
It’s THESE (and other) well trodden historical tendencies of legislatures and the process of trying to write a one size fits all Law of the Land, that motivated the FOUNDING FATHERS and Ratification Committee and original Supreme Court Justices, TO WRITE THE BILL OF RIGHTS as a LIST OF WHAT CONGRESS SHALL NOT DO! LOL. Congress shall pass NO LAW related to this, and NO LAW abridging this, and etc. BECAUSE CONGRESS CAN”T BE TRUSTED TO Legislate certain things, as successive generations of them have proven again and again. That’s the point of being a Strict Constructionist, understanding that no body of representatives ever has nor ever will resist abusing their legislative authority given the slightest of pretexts to do so.
Think about it…. Today it is a FEDERAL CRIME to say you HATE certain things… not only SPEECH, but expressing subjective FEELINGS have been declared federal felonies! Individual citizens can be Prosecuted by Federal Agents and Prosecutors FOR violating some other individuals “civil rights”, BUT WHEN FEDERAL AGENTS and Prosecutors arrest some poor jerk for HATE SPEECH, THOSE SAME agents and prosecutors ARE VIOLATING said jerks “civil rights”. lol.
There’s only one type of legislation that consistently and reliably is clearly and unambiguously written…. You guessed it: Budgetary and funding allocations (pork). hahah.