Monday, March 28, 2005

“No Alcohol Added”

In 1991, I got involved as an expert witness in a law suit in which a group of ethanol producers sued a host of big oil firms on anti-trust grounds arguing, in part, that deceptive advertising by oil companies employed “point of sale” (POS) signs such as “No Alcohol Added!” or “No Alcohol in our Gasoline!” or “Alcohol Free!” which, in the opinion of the plaintiffs, disparaged gasohol and this practice had harmed them by reducing the demand for their product. Naturally, if gasohol is as good as gasoline, then such POS advertising becomes deceptive for the implication that adding alcohol (ethanol, specifically) is harmful would be false. The Title link will take you to an appeals court ruling upholding a district court’s ruling that the plaintiffs “lacked antitrust standing.” All but one of the defendants had gone broke at the time of this appeals court ruling.

That was fourteen years ago but it seems that the oil companies keep up such POS advertising practices. At a site called The Straight Dope one “Danglin' Dave” noted he had observed the POS "Alcohol Free!" at a service station. Nevertheless, while most of the plaintiffs in the suit I was involved in went broke, gasohol continues to be sold.

The lawyers for the oil companies deposed me for a total of 24 hours over a four day period, which seemed a bit excessive (but was lucrative since they paid for my time). Their goal, obviously, was to get me to contradict myself or to get me to make a mistake and say something damaging to the gasohol people. It almost worked.

The primary focus of the deposition late on the second day concerned the “point of sale” (POS) advertising practice cited above. My claim was, of course, that this practice was deceptive and the lawyer questioning me was determined, it seemed, to show that this was an absurd claim. Naturally, I didn’t want him to succeed at that.

A POS sign might say that some product has some property (the positive case) or that it doesn't have some property (the privative case). How such a sign will be interpreted will depend on what consumers believe about the desirability of the product's having that property. I suspect that consumers generally would not then have had strong beliefs one way or another as to the value of adding alcohol to gasoline.

On first inspection, these POS messages might seem simply to communicate information in a relatively innocent fashion. That is the usual defense of advertisers – “We’re just providing information.” However, in exclaiming that one's gasoline contains no alcohol, one implies that it is a desirable attribute of one's gasoline that it does not contain alcohol and this in turn implies that it is less desirable or even undesirable for gasoline to contain alcohol. Absent a strong belief that adding alcohol to gasoline is desirable, this sort of claim could lead consumers to lose confidence in their belief or even come to believe that alcohol should not be blended with gasoline, for consumers can be expected to rely on the fuel industry for expert views on fuel products. Interestingly, some of the oil companies sold both gasohol and gasoline at filling stations in some areas but in others they sold only gasoline and put up signs that disparaged gasoline. Does the word “hypocrisy” come to mind?

Having gotten me to commit to the view that these POS were deceptive, my interrogator then moved to product labeling practices stating that a deodorant is “scent free” or that a particular brand of coffee is “caffeine free” or that certain jars of peanuts were “salt free” and the like and asked whether these too are deceptive in nature. This was, I realized, the crux of the matter. It struck me that it would be silly to say that these claims were seriously deceptive. Yet being identical in “gist” to the “no alcohol added” POS signs, I was committed to the view that these claims were also deceptive and so I said they were. That admission would count as a reduction ad absurdum of my position. I conceded that if a consumer knew nothing about the health risks of adding a scent to a deodorant, or of consuming caffeine or salt that these labeling statements would imply that it is harmful to add a scent to a deodorant or salt to peanuts. The caffeine case is a bit different since coffee contains this ingredient naturally but the implication is the same. However, for most people scents, caffeine, and salt are not harmful, though the caffeine and salt cases are a bit controversial.

The lawyer clearly thought he had me pinned down. However, I pointed out that the fact that retail stores selling scent free deodorant or caffeine free coffee or salt free peanuts usually also sold scented deodorants, regular coffee, and salted peanuts and claimed that this countered the implication that scents, caffeine, and salt must be harmful or undesirable in some way since both types of products were being endorsed. I then went on to say that at the stations the defendants sold gasohol alongside gasoline even if these stations put ups signs on the gasoline pumps saying “no alcohol added” this would not, in this context, disparage gasohol because the fact that they were selling it constituted an endorsement of it. And that was the end of that.

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Wednesday, March 23, 2005

He's My Bitch

It will come as no surprise to anyone who has observed this or any other society that men as a group enjoy higher social status than women. The degree of separation between men and women on the social ladder varies from culture to culture but the fact of women being perceived as inferior is a cultural constant. One of the consequences of this is that when men/boys want to put another man/boy down they attribute some widely perceived, usually unfavorable female quality to him -- lets call that "effeminitzation" and note in the process that calling a man "effeminite" is itself a put down.

My friend, Phil, drew my attention to a New York Times article titled, "Epithet ["bitch" -TLG] Morphs From Bad Girl to Weak Boy." This will not be the first time that has happened. Robert Scott's Gay Slang Dictionary gives, as one of the meanings of "pansy," a possible girl's name, `A weak or effeminate male.' Answers.com says of "pansy" that it is "used as a disparaging term for a man or boy who is considered effeminate." This very useful web site also gives a plausible etymology for "sissy" as `a boy who looks and acts like somebody's sister," though I doubt that anyone using the term today would connect "sissy" to "sister."

"He throws like a girl" is a classic put down. Jeffrey on a chat board says of John Kerry
And yes, he throws like a girl, and closes his eyes to catch the ball. The videos are even funnier than those pictures.
"Don't be an old lady" is another. Check out billybones' choice advice at an aptly named chat site Robot Lounge
"A bottle will cost you about 15$ and it comes with some mix drink ideas, but don't be an old lady just drink the shit sraight..."
And from Answers.com we find another useful definition: a "mama's boy" is ` A boy or man characterized by unusual closeness to his mother and often by timidity and overly refined manners.'

What's going on here? The most credible explanation for the linguistic effeminitization of males is that males simply don't respect women. As the use of "mama's boy" illustrates, we men may love our mothers but that doesn't mean (signify, entail) that we respect them (except perhaps in their caregiver role). As we shall see in subsequent blogs, this lack of linguistic respect is quite pervasive.

The social consequences of the lingusitic effeminitization of men are nontrivial. Boys and girls hear boys and men say things like "he throws like a girl" or "he's my bitch" and an inevitable consequence of this is that the boys and girls who do (which will likely be most of them) will learn however nonconsciously that there must be something not so good about girls and women.

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Monday, March 21, 2005

Interpreting the Constitution

In a discussion of Scalia’s interpretation of the phrase “cruel and unusual punishment” found in the U. S. Constitution, Legal Fiction says in his Law and Politics blog

To me, the Constitution consists of words and nothing else. Text is the essence of what it is. [snip] Words like “cruel,” “unreasonable,” “speech,” “commerce,” “cruel and unusual,” and “search” lack a clear determinant meaning. That’s not to say they are wholly indeterminate, but rather that there is a range of plausible meanings.

[Snip] Scalia looks at the Constitution and sees “understandings” – I look at the Constitution and see words. Scalia’s entire legal edifice is built not upon words, but upon a single understanding of a word. In other words, it’s built not on the meaning of the text, but upon the selection of a single subset of the word’s total possible meanings – one that is contingent and arbitrary. I see no reason – and more critically, no justification in the text – to favor one “understanding” over another. [Snip]

To me, the Framers ratified words. They did not ratify floating penumbras of understandings that surround and envelop the words. The words we have. The understandings we don’t.

Before responding to this post, let me relate an anecdote. Some years ago, six linguists and 7 lawyers met for a discussion of language and the law at a weekend colloquium at Northwestern University put together by Judith Levi. At one point, one of the lawyers, knowing that all of us linguists were politically liberal to one degree or another, noted that we linguists unanimously sided with Scalia over other justices time after time and wondered how that could be. The reason was simple. Scalia has a better understanding of language than the other justices.1

As I noted, Legal Fiction says

To me, the Framers ratified words. They did not ratify floating penumbras of understandings that surround and envelop the words.

It is no more enlightening to say that the Constitution consists of words and nothing else or that the Framers ratified words and nothing else than it would be to say that the Constitution consists of paper and ink and nothing else and that the Framers ratified some paper and ink and nothing else. In fact, if one is absolutely determined to oversimplify things, it would be truer to say that the Framers ratified a set of understandings than a set of words.

Legal fiction has got things entirely backasswords. The Framers weren’t ratifying just words. If that were true, they could have saved themselves a lot of work if they had just ratified their favorite dictionary. I would argue that the Framers of the constitution agreed to a set of understandings and chose the language that best expressed these understandings. Importantly,
these understandings reflected the context in which they lived, no less than the understandings of the utterances we encounter every day depend on context (see my blog The Meaning of Meaning)2 And therefore in understanding the Constitution, it is imperative to consider the context in which they lived if we are to understand its meaning to the Framers. And that is the rub. The context in which we live is very different from theirs. And, to some degree, so is the language, but not I think the meanings of "cruel" and "unusual".

The Framers lived in a time in which certain punishments would and certain other punishments would not be seen as cruel or as unusual. We are not obligated as interpreters of the Constitution to restrict ourselves to their context, and therefore, to their specific understandings of what at that time would have counted as a cruel or an unusual punishment3 What have changed are the referents of the phrases "cruel punishment" and "unusual punishment."

The specific argument Legal Fiction has with Scalia turns on the latter’s claim that in determining whether putting juveniles to death is unusual, one should not factor into the discussion states that have no death penalty at all. Such states are relevant to the question whether the death penalty is itself unusual but not to whether some particular practice by death penalty states is. The issue is quite like that of excluding from juries in capital cases, jurors who are adamantly opposed to the death penalty. To determine whether putting juveniles to death is unusual one must look at the practices of the states that have the death penalty. If there are 22 states with the death penalty and only 2 allow putting juveniles to death, then putting
juveniles to death is an unusual practice. But if 20 of them allow it it is not unusual. It may be immoral, but it is not unusual.

As I made clear in my first blog on the Death Penalty, I am opposed to it not in principle but because I don’t think we are capable of administering it in a fair way. So, politically, I am with Legal Fiction and against Scalia, but Legal Fiction is flat out wrong in saying that Scalia is not interpreting the Constitution correctly in this case.

1 An edited version of the proceedings and a number of papers from participants and others interested in language and the law were published in the Washington University Law Quarterly,
73:3, 1995. At some point, I will blog on about the substance of my paper pointing out how it is that Justice Scalia does and Justice O’Conner does not have a clue about language.
2 A written sentence should be thought of as an utterance taking written rather than spoken or signed form.
3 I assume that there has been no substantive change in the lexical meanings of either "cruel" or "unusual."

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Friday, March 18, 2005

Bad Words -- X-Rated. Parental Guidance Suggested

The sound of a bad word has nothing whatever to do with its being bad. Virtually any bad English word will exist in some language somewhere as a good word. We should should also remember that Carlin's two-way words also provide evidence for that. One can say in polite company, "Would you hold Peter?" but not "Would you hold my peter?"

Is it the subject matter, then, that makes a bad word bad? Not entirely, for sure, for we have euphemisms for bad words -- "poop" for "shit" or "take a leakk" for "piss" or "make love" for "fuck" and this suggests that the subject matter per se isn't the problem either. However the social contexts in which these euphemisms occur has a bearing on their acceptability. A mother can ask of her child, "Do you need to make "pee-pee"?" in a gathering of other mothers. However, I don't think a middle-aged middle-class woman would likely say, "Please excuse me. I need to pee," to a group of middle-class women.

It appears then that the sound of a bad word has nothing to do with its being bad and that while the subject matter provides the source for bad words we have bad words with unproblematic sources (religion being the best example). The inference I draw is that it is the the word itself that is the problem and its boundaries of use are socially prescribed. A guy can say, "I need to piss," to a drinking buddy in a bar but not to a group of people in a formal business meeting.

In addition to the social context, the culture one grows up in has a bearing on what is and is not a bad word and how bad a bad word will be. In 1995, I taught in England and while wearing a fanny pack (a somewhat outmoded small bag one straps around one's waist) and made the mistake of referring to it by that name. That got quite a response from my students. It seems that "fanny" in British English is equivalent to "pussy" in American English. That example provides further evidence that the sound of a word has nothing whatever to do with its being a bad word.

Once while a student at Rice in Houston I found myself in a small gathering of socially prominent people and a middle-agedwoman referred to a group of people as "coonasses." I, who am hard to shock, was shocked. I worried that the "coon" part might be a derogatory reference to African Americans and "ass" speaks for itself. That I was in very polite society and an adult woman had said it contributed to my distress. I later found out that "coonass" is just a slang word for cajuns, though not, I suspect, a totally nonpejorative word.

Not long after I moved to Ohio State, a lawyer in the Law School asked me to testify on behalf of a student who had been arrested for the use of "prurient" language (" Arousing or appealing to an inordinate interest in sex" -- Answers.com), which was against the law back then. Our late unlamented Vice President to President Nixon, Spiro Agnew, was in town and a group of Ohio State students was marching up High Street to downtown to protest his being there. As they marched a "street preacher" kept harassing them ultimately prompting one student to say, "Look, motherfucker, how come there's so many of us and so few of you?" A policeman heard this and arrested him on the spot. Later in court, he testified under oath that when he heard that, he instantly thought of someone fucking his mother. That would make the language prurient but it also made the cop either a liar or someone desperately in need of counseling.

I testified that, first, the cop's response was odd on the grounds that "motherfucker" doesn't mean "someone who fucks a/his mother." If it did, sentence (1) would be self-contradictory and it isn't.

(1) Look, motherfucker, I know you don't fuck your mother.

I also testified that in the case of many "fixed" or "frozen" expressions consisting of two or more morphemes, we do not normally "parse" them into their bits. When Barry Goldwater ran for President I didn't think of either gold or water and certainly didn't think of piss when I heard his name. And when I go down to our greenhouse, I don't think of it either as green or as a house. The same goes for "motherfucker." The force it has as an insult does not require that. Nor does the force of "cocksucker" depend on one parsing it into someone who sucks cocks. Another argument I made is that in different subcultures, a given bad word will vary in its force. Back in the 70's when I testified, I noted that "motherfucker" was very commonly used in the African American culture and I might (certainly could) have argued that among young White males, it was also commonly used. The high frequency of use in such subcultures leads to its loss of force. So, for the jury, which consisted of six middle-to-old aged White people, to convict a kid who lives in a subculture in which "motherfucker" is a commonplace curse word because it is shocking to them would be wrong.

Naturally, the jury convicted the kid. Fortunately, the Ohio Supreme Court reversed the conviction on the grounds I had argued at trial.

Three last notes. First, if you learn a language as an adult, it is very unlikely that you will be shocked by any of that language's bad words. Given this fact and the fact that the sound of a word has nothing to do per se with its being a bad word and that even the subject matter or meaning are insufficient to make a word bad, I think we must conclude that what any bad word is is a word our mamas and papas told us was bad. We are Pavlov's dog when it comes to how we react to bad words. Which is to say that we are still primitive people for we still respond to word magic. Second, I have never heard of a language that does not have bad words that are available for use to curse others, so there must be something very right about them. Finally, the more abusive and unacceptable a word is, the more likely it will be used, at least by American men, as a sign of affection for another man. That's the aspect of bad words I really like.

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Thursday, March 17, 2005

Language and The Death Penalty -- Part II (Alice in Legal Land)

The guilt phase of any aggravated murder case concerns two things -- did the defendant commit the murder and was the crime so reprehensible that the defendant should be put to death. In order to satisfy the Supreme Court, states have split off the guilt phase of the trial from the penalty phase and have codified the respects in which a murder can be so reprehensible as to raise the question whether the defendant should be put to death. The circumstances that make a murder reprehensible to this degree are known as aggravating or special circumstances and these are always explicitly codified in the law. It is the burden of the prosecutor in the guilt phase to prove beyond a reasonable doubt that the defendant did commit the murder(s) and that the aggravating or special circumstances did obtain. Typical aggravating circumstances are that the victim was one of a set of named government officials or was a police officer performing his duties or (in Ohio) was under the age of thirteen or was someone who might testify against the defendant in a trial. The list is a long one.

Should the jury find beyond a reasonable doubt that the defendant was guilty of murder and that the aggravating or special circumstances surrounding the murder did occur, the trial moves into the penalty phase where the issue is whether or not the prosecutor has proved beyond a reasonable doubt that the aggravating circumstances outweigh any mitigating factors they may wish to consider. Typical mitigating factors are the youth of the defendant, the lack of a prior criminal record, a diminished mental capacity, or whatever else they believe is relevant. Unlike the aggravating circumstances, the mitigating factors the jury may consider are open-ended.

In Ohio, the aggravating circumstances are relatively straight-forward and do not involve any emotionally charged language. This generates a pretense that this weighing process the jury must engage in is somehow objective. The newly revised standard jury instructions for the penalty phase in Ohio specifically instruct the jury not to consider the nature and circumstances surrounding the crime when determining the weight of the aggravating circumstances.
When you consider the nature and circumstances of the offense, you may only consider them if they have any mitigating value [as when the victim somehow induced the attack -- The Language Guy]. You may not considerthe nature and circumstances of the crime as an aggravating circumstance.
Thus, in Ohio, if a defendant tortured his victim before murdering him, the fact that torture occurred cannot be weighed against the mitigating factors. That is, at least, how it is supposed to happen. In sharp contrast, in Connecticut, one of the aggravating circumstances is that the defendant committed the offense in a "heinous, cruel and depraved way." This instruction allows prosecutors to overtly appeal to the emotions of jurors. In Ohio, in contrast, that is specifically disallowed, which isn't to say it doesn't occur.

There is empirical evidence that jurors do not well-comprehend the concepts "aggravation" and "mitigation."Peter Tiersma1argues that jurors cannot be expected to be familiar with the term "mitigation," for it only very rarely occurs in ordinary English2 and notes that the jury's understanding of the term "aggravating circumstance" may be affected by the ordinary meaning of "aggravating," that is, "annoying" or "irritating," an observation he credits to the linguist Robin Lakoff.3 In fact, the use of "aggravating" in the sense that it is used in death penalty law does not occur in ordinary English at all. It harks back to the original Latin meaning of "adding weight" to something. We do not say things like "He gave me an aggravated insult" (by say slapping my face with a hand covered with dog feces) or "He gave me an aggravated punch" (by using brass knuckles. We just don't alk that way.

Therefore, a court that does not sharply distinguish the meaning of "aggravating" when used in the phrase "aggravating circumstances" from the ordinary language senses of this term runs asignificant risk that jurors will utilize the ordinary English meaning in trying to decide what is an aggravating circumstance. Doing so is encouraged by prosecutorial misconduct of a sort described below. Unfortunately, in my experience of reading the transepts of ten or so cases,
judges do not make any special effort to do this. I think this may be because lawyers simply assume that the meanings of legal terms are somehow transparent.

Tiersma also provides a good deal of empirical evidence that jurors do not correctly understand the legal meanings of "mitigating factor" and "aggravating circumstance" based on experiments, interviews with jurors,4 and notes capital jurors have sent to judges.5

Another substantive problem is that prosecutors in Ohio frequently misrepresent these concepts and make appeals to nonstatutory "aggravators". In the case of Allen Holloway, who was arguably severely mentally retarded6 (Case No. C1-94-0229), the prosecutor acted as if Ohio had the Connecticut aggravating circumstance that the defendant committed the offense in a "heinous, cruel and depraved way" when he said:(1566, 1-6)

Basically the aggravating circumstances are the ones we've proven already, the facts and all the facts surrounding the robbery, the infliction of serious physical harm to Clara Wilson, the mitigating factorswe just presented to you.
Here we have an explicit appeal to a nonstatutory aggravator that encouragesjurors to weigh not just the actual statutorily approved aggravating circumstances against the mitigating factors but the emotionally charged fact that the defendant inflicted great harm to the victim before murdering her. He went on to make additional emotional appeals when he referred to the crime as "a two-hour torture killing of a defenseless 84-year-old lady by the name of Clara Wilson, for no apparent reason, other than to steal a $34 radio" and said of the defendant "that he's a killer, a cold-blooded killer." In this trial, the defense attorney and the judge must either have been asleep or didn't know the law because they never once objected to the prosecutor's extralegal actions. It is too bad that such prosecutorial misconduct is not made explicitly illegal and punished by jail time.

Basically the Ohio legal system is kidding itself. As juries in cases I worked on basically confirmed to investigators (when they would talk to them at all) that it was extralegal nonstatutory aggravators such as the fear that the defendant might get out on appeal (now Ohio has a life-with-no-parole option it didn't have then) or that the crime was heinous, and etc. This isn't surprising given the ordinary language meaning of "aggravating" and the fact that one must feel strongly to vote to have someone put to death.

Weighing the statutory aggravating circumstances against whatever mitigators the jury believes exist is rather like comparing apples to catfish -- not an easy thing to do. How does one compare the youth of defendant with no prior criminal record against the killing of a police officer while trying to escape capture after committing a robbery? That should be an easy case. Would it be

1. "Youth" + "No criminal record" divided by "Killing a police officer" = "2" (ergo impose a life sentence)

or would it be

2. "Youth" + "No criminal record" divided by "Killing a police officer" = "1/2" (ergo impose the death sentence)?
Nice neat functions like these simply don't exist and everyone who is not lying to himself or herself knows it. That may be what impels prosecutors to violate the law and appeal to the emotions of the jury. Why didn't the defense attorney object to the prosecutorial misconduct in the Holloway trial? Why didn't the judge step in and stop the prosecutor? The first question is easy to answer -- though defense attorneys in death penalty cases have to be death qualified, they are overworked and seem sometimes not to put much effort into their jobs. Another possibility is that they don't actually know how the laws read. In the case of the prosecutors and judges, I shall go with the least charitable interpretation. These are elected officials, or

in the case of many prosecutors are appointed by an District Attorney who is himself or herself elected and if they live in an area that wants its elected officials to be "tough on crime" then that is the Holloway trial is the kind of death penalty trial one is likely to get with out of control prosecutors and utterly ineffective defense attorneys.

1 Peter Meijes Tiersma, "Dictionaries and Death: Do Capital Jurors Understand Mitigation?," manuscript. Tiersma holds a Ph. D. in linguistics and is currently a Professor of Law at Loyola Marymount University in Los Angeles.

2 Tiersma notes that the American Heritage Word Frequency Book contains a corpus of over five million word tokens and that the word "mitigate" occurs just two times. Normally, the general public tends not to know or fully grasp the meanings of words they rarely encounter. Many will not have encountered it at all before they enter the jury box.

3 This was drawn from a Los Angeles Times article.

4 Half of the ten juries in the Sontag study cited in footnote 5 requested clarification of the terms "aggravating" and "mitigating" from the trial court.

5 Lorelei Sontag, "Deciding Death: A Legal and Empirical Analysis of Penalty Phase Jury Instructions and Capital Decision-making (1990). This doctoral dissertation can be obtained from the University Microfilms, International in Ann Arbor, Michigan.

6 Komp claimed at the web address referred to that he has brain damage and an IQ that has been measured at 55 to 72.

7 In this passage and elsewhere, note that the
prosecutor totally misrepresents the concept of mitigation.

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Wednesday, March 16, 2005

Weasel Words -- The Modal Verbs

When I was doing research on the language of advertising I encountered Carl Wrighter's book I Can Sell You Anything, as infuriatingly arrogant and insulting a book title as I can imagine. My copy has long since vanished but thanks to Amazon.com, I have been able to order a used copy which will likely prompt additional blogs on advertising language. Interestingly, if memory serves, the same book was also published under the name of Paul Stevens. Carl/Paul was an advertising copy writer and doubtless published the book under a pseudonym while employed as such and didn't want to be outed as giving away trade secrets.1

Carl/Paul's claim is that advertisers use bits of language that fool us, making us think that some product or service will do for us things it cannot do. One important class of said "weasel words"1 are modal verbs like "can," "could," "may," and "might," among others. These are often combined with the verb "help," especially in claims made on behalf of products designed to make us feel or look better. Consider, for instance, this web ad for Olay Total Effects.
The benefits of Total Effects are truly exceptional. For years, women have been looking for a simple-to-use product that could combat multiple symptoms of aging skin. Now, thanks to Total Effects, there's a moisturizer that can fight the seven signs of aging. To learn more about this new skincare sensation from Olay, click on a topic that interests you, or simply scroll down the page.
Statements like these containing "could" and "can" if construed in some narrow literal way, are so weak that they could hardly be false. From that perspective, so long as there is the minutest possibility that they are true, then they are true.

The manufacturere provides supporting evidence in the form of "a consumer research study" and two quotatcions from "several" (i. e., two) university dermatologists. In the former, it was claimed that
Olay TE rated higher overall versus these products, and it fight [sic] the seven signs of aging.
In the case of the testimonials, we find that one of the doctors probably did the "consumer study," and was surely paid to do it.

What is a "consumer study"? One thing it probably isn't is an actual experiment. An Alzheimer's patient I know is being given a drug designed to increase memory abilities and its effects on her memory are tested in a systematic way on each visit to the doctor. Maybe dermatolgists have some instrument like a tire depth guage to measure the depth of women's wrinkles.

On the other hand, a double-blind experimental study of the relative effectiveness of the products mentioned in the pop up window and Olay Total Effects was surely not done. The reason I think this is that they mention seven competitors and that would mean an experiment involving eight products. I have no idea how many subjects would be required to achieve statistical significance in a study this large but I'm betting it would require many more people than the dermatologist "studied." The two specific claims made of interest here are 1. Women have been looking for a simple-to-use product that could combat multiple symptoms of aging skin. 2. There's a moisturizer that can fight the seven signs of aging.

It is interesting that Olay is evoking a war metaphor when using words like "fight" (three instances) and "combat." One imagines a fierce battle going on as a woman sits at her makeup table. I have digressed away from the primary topic, the modal verbs as weasel words. the fact is that a claim like "Total Effects can fight/can combat the multiple symptoms of aging skin" doesn't actually make a claim for actual success in making skin look younger. Germany and Japan fought/combated other countries in a quest for areal domination. They both lost. Lets consider then a more straightforward claim like (3).
(3) Total Effects can make your skin look smoother.

Now, just how strong is this claim? Well, from a literalist perspective, it would be true if it makes just one woman's skin look a tiny bit smoother. That is, (3) is verified from a literalist perspective by observation (4).

(4) My Aunt Bea used Total Effects for a week and
her skin looks a little bit smoother.
Yes, just one instance ofsomeone's skin being even slightly smoothed out confirms (3). Since advertisers constantly make claims like thosein our Olay ad involving "can" and "could," as well as "may" and "might"and other modal verbs like them we may assume that they believe that such claims are at least sometimes effective. Either that or advertisers are forced to use these words in order to make any claims at all. (I suspect that is sometimes true.) If we are gulled, there are two possibilities. I noted in "The Language of Television Advertising," that Miller and Johnson-Laird2 claimed that we may simply not notice these words. I showed a draft of a chapter of my book in which the Miller and Johnson-Laird hypothesis was being discussed to a philosopher/logician buddy of mine and he claimed,"Your claim about X is way too strong." I replied, "How could it be? It has "may" in it." He had clearly missed it. Now that doesn't confirm the hypothesis but it nicely illustrates it. There is another hypothesis and this is that when we use these so-called "weasel words" we usually mean to be making reasonably strong claims. If you have a nasty headache and I hand you a couple of pills of a brand new type I just got and say, "Take these, they may help" I mean to be making a substantive claim. I am not promising that these pills will make your headache disappear but that there is a good chance that your headache will be lessened if not cured. Returning to Wrighter's claim that he can sell us anything, it is important to note that advertisers aren't actually smarter than we are. They simply exploit our normal patterns of language use in which these words are not used to make reasonably substantive claims.

In fact, if we didn't frequently use them to say things that are significant, we wouldn't have much of any use for them. To further prove that they aren't smarter than we are, its worth noting that we sometimes use these words as they do, as when we want to decline an invitation without insulting the person inviting us. So, if Mary asks John if he can come to a party she's giving and John says, "I may come but I'm not sure I will be free," Mary should probably not count on John showing up. But, when we use one of these modal verbs in this way, we aren't trying to fool our friends, for they perfectly well know what we are up to. We are simply trying to be polite.

1There is another use of "weasel words" which is employed by the guardians of good prose. One writer says we should avoid
weasel words -- empty palliatives such as "to a certain degree," "it may seem likely that," or "in some cases.
This use of the phrase "weasel word" deserves a separate blog as part of our fight against linguistic evil.

2Miller, G. A. & Johnson-Laird, P. N. 1976. Language and Perception. Cambridge, Mass: Harvard University Press.

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Monday, March 07, 2005

The Meaning of "Meaning"

In order to understand how we use and understand language, whether this is in ordinary conversation or on encountering it in advertising or a political speech, or in any other domain, it is critical to recognize that what we or others say will often have a "meaning" which is at variance with what the sentence uttered "means." Some examples:
1. The sentence "You're a well-behaved group of students!," if uttered to a group of misbehaving students by their teacher, will be understood to have a "meaning" which is the opposite of that of the sentence uttered.
2. A sentence like "Can you reach the flour?," which is interrogative, and therefore would normally call for a "Yes" or "No" response, can be used either to request information (the "default" use we might say) or to request the flour. Compare, the following two situations. In the first, one friend is helping out another who is confined to a wheel chair by arranging his/her kitchen and has no apparent need for flour. In such a case, were he/she to say "Can you reach the flour? "he/she would be understood as attempting to acquire information. In the other situation, a chef who is about to construct a roux and therefore can be expected to need flour turns to his/her assistant and says, "Can you reach the flour?" In this case, the chef would be understood not to be requesting information, but to be requesting the assistant to provide him/her with flour.
3. As a third example, suppose you want to go to a movie, and say to your room mate, "Wanna go to a movie tonight?," and he/she replies, "I've got a physics exam tomorrow." You will undoubtedly take him/her as rejecting your invitation even though the sentence uttered makes no explicit reference either to a movie or to what he/she might be doing tonight. Suppose on the other hand, your roommate were to call his/her tutor and say "I've got an exam tomorrow." In that context, what is being said might be understood as a request for help with the exam.
In order to understand what is going on in these cases, we must make a distinction between sentences and utterances, for what we find in each case is that utterances can have a meaning in context not fully determined by the meaning of the sentence uttered (whether the sentence uttered is spoken, written, signed, as in American Sign Language, or given expression in some other way). A second thing that must be recognized is that when I said, "utterances can have a meaning in context not fully determined by the meaning of the sentence uttered" I used the word meaning in two quite distinct senses.

Talk about meaning is notoriously confounded by the fact that the
words "mean" and "meaning" are ambiguous. Consider, for instance, the
following four sentences:

4 a. What is the meaning of "sesquipedalian"?
b. I did not mean to hurt you.
c. Life without faith has no meaning.
d. Dark clouds mean rain.
In the case of (4a), the speaker seems to be asking for something akin to the accepted meaning, or what we might call the "conventionalmeaning" (sometimes also called the "literal meaning") of the word "sesquipedalian." In the case of (4b), the word "mean" means (i.e., has the conventional meaning of) `intend.' In (4c), "meaning" means (conventionally) `significance.' And, in (4d), "mean" means (conventionally) `signifies.' The question is: what senses of the term "meaning" do we (should we) have in mind when we say that an utterance can have a meaning in context not fully determined by the meaning of the sentence uttered?

My answer is that whereas sentences can be said to have conventional meanings, utterances should be said to have significances instead and therefore my claim that "utterances can have a meaning in context not fully determined by the meaning of the sentence uttered" could be made
more explicit by saying "utterances can have a significance in context
not fully determined by the conventional meaning of the sentence uttered."

The ambiguity of the terms mean and meaning is a quite interesting
one, for three of its senses play a role in how we go about understanding
what others say or write or sign. In a nutshell, in any conversation
or other language use, the significance (meaning as significance) we assign
to any utterance will be a function of the conventional meaning of the
sentence uttered and facts about the context that support assumptions about
the goals (intentions) of the speaker.

Some years ago, Arnold Zwicky and I wrote a paper called Invited Inferences noting that when people say things of the form "P if Q" they often mean to imply "not P if not Q." So, if someone says (5a) they will often mean for you to assume that (5b) is also true.

5 a. I'll give you $5 if you mow my lawn.
b. I won't give you $5 if you don't mow my lawn.

However, this is not always true. Consider the following two conversations:

6. An adult telephones a neighborhood child, with
whom she does not have a particularly close relationship, and the following
conversation ensues:

Adult Hello, Terry. Are you doing yard work this summer?
Child Yes.
Adult I'll give you $5 if you mow my lawn.
Child Okay.

7. A child approaches her mother and the following
conversation ensues:

Child: I need $5, Mom.
Adult: I'll give you $5 if you mow the lawn.
Child: The lawn mower doesn't work.
Adult: Well, I'll give you $5 if you clean out the garage.
Child: Okay.

There is in these two cases a close connection between conventionalsentence meaning, utterance significance, and speaker intention (goal). In the case of conversation (6), the adult has the goal of getting herlawn mowed and she is negotiating with the child in an attempt to inducethe child to mow her lawn. In the case of conversation (7), the child hasthe goal of obtaining $5 and he is negotiating with his parent in an attemptto induce the parent to provide him with the $5. We might say then thatutterance of a sentence which has the conventional meaning of "If P, then Q," which is true of (5a), has the contextual significance of communicating that "If not P, then not Q"" is true if and only if the goal of the initiator of the interaction to make "Q" true. Thus, in the case of the adult who called the neighbor boy to try to induce him to mow the lawn (i. e., make "Q" true), the inference went through, but in the case of the child who wanted to obtain $5 from his mother (i. e., to induce his mother to actso as to make "P" true), the inference did not go through.

The critical thing to note here, and it is as true of how we interpret "You're a well-behaved group of students!" in (1), "Can you reach the flour?" in (2), and "I've got a physics exam tomorrow" in (3), as well as "I'll give you $5 if you mow my lawn" in (6) and (7), is that we engage in a process of utterance interpretation that takes into consideration the conventional meaning of what is said and facts about the context that support inferences as to the
goal of the speaker.

Before concluding this brief discussion, let's consider example (4d). Paul Grice, in his very influential paper, Meaning, referred to the kind of meaning we find in (4d) as "natural meaning." In the clearest cases of natural meaning, there is some causal nexus linking the two things. In (4d), the causal nexus is presumably that the set of circumstances that cause dark
clouds also cause rain (rather than that dark clouds cause rain or that rain causes dark clouds). Hence, dark clouds are a sign or symptom of impending rain. In the case of a sentence like Those spots mean measles the causal nexus is that measles is are directly responsible for the red spots.

There is, of course, no causal nexus linking the word "sesquipedalian" to persons who are given to using long words (though it can be admitted that this word is long). Nor is there a causal nexus involved in the determination of utterance significance. There is, however, a close connection between cases like (4c) and (4d). The difference is that while there is a causal nexus of some sort in the case of natural meaning, there is a rational nexus in the case of utterance significance. The nature of this rational nexus is not fully understood. However, in one way or another the answer will be found through pursuing the ideas advanced by Paul Grice in his seminal paper The Logic of Conversation and John Searle's seminal work on Speech Acts. I, of course, prefer the account I gave in Speech Acts and Conversational Interaction, in which I provide a synthesis of the ideas of Grice and Searle and work in artificial intelligence and conversation analysis.

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Tuesday, March 01, 2005

Language and The Death Penalty -- Part I

I cannot say that I am unequivocally opposed to the death penalty. However, I am convinced that the human race, in its current state of moral and ethical development, is incompetent to administer the death penalty in a just way.

Some years ago, I was asked by the Ohio Public Defenders office to examine the standard jury instructions for the penalty phase of death penalty cases. These are instructions judges are encouraged, but not obligated to read to the jury. I was quite astonished to learn that these instructions were in many respects incomprehensible and, what is worse, used language suggesting that death is the default verdict -- as if jurors faced a "find for death unless..." decision. I also read several final arguments and discovered that prosecutors routinely failed to follow the law in arguing for the death penalty, appealing to such nonstatutory, legally irrelevant emotional factors as the youth of the victims, the henious nature of the crime, the unrehabilitatibility of the defendant, etc. Oddly, defense attorneys didn't object. Nor did judges. At least not in the cases I read. What the adults involved seemed to be playing was the children's game of "lets pretend" -- in this case, it was lets pretend that the defendant is getting a fair trial.
In this blog, I will focus on just one matter, namely the statute defining the criteria for imposing the death penalty and the various other options.
§ 2929.03. Imposing sentence for aggravated murder.
(2) [Snip] If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to one of the following:
(a) Except as provided in division (D)(2)(b) of this section, to life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment;
The problem back when I was a consultant to the OPD and now is that the jury instructions and the forms the jury must fill out insist that any decision they make be unanimous. Before going futher, see if you can find justification for such a practice in the passages quoted above.

Notice that the language of the first paragraph quoted suggests an order in which the jury should proceed. After deliberating, they should vote up or down on the death penalty. The bolded phrase "absent such a finding," which means `absent such an unanimous finding' the jury should move on to consider penalties of life-without-parole or 25-to-life or 30-to-life. While I was doing this work the first of these three options was not available. Its inclusion is an improvement.

The jury form to be filled out by the foreman insists that any of the three verdicts, life-without- parole or 25-to-life or 30-to-life, be unanimous. The law, quoted above, does not say that. It is in fact mute as to whether the jury should vote on all three at the same time and go with the one with the most votes or go through them one by one getting the "yeas" and "nays" and going with the one with the most votes. Nor does the law provide any criteria for choosing between the three "life" options.

The problem is this: suppose that the jury splits 11-1 or 10-2 or 9-3 for the death penalty. As I read the law, at that point, should the minority group hold firm, the jury should abandon the death penalty and move on to the other three options. Suppose further that the jury cannot come to a unanimous verdict on any of the remaining three options. What is the jury to do?

The death penalty jury cannot hang. It must come to a decision. I was told by a lawyer working for the Ohio Public Defenders office today that in State v. Gapen the jury, having apparently moved past the issue of death, could not come to an unanimous agreement as to any of the three "life" choices -- live-without-parole, 25-to-life or 30-to-life. The judge, using the so-called "Howard" charge (officially noncoercive, but actually coercive) told them to go back and reconsider the death penalty along with the three "life" choices, which, as we have noted, is inconsistent with the language of the law. The jury did, and, not surprisingly, they came to a unanimous verdict for death. Why didn't the judge tell them to focus on the life-without-parole option instead? As I mentioned, the entire system is predicated on the thesis that the decision the jury must make is "death, unless..." Back when the options were "death," "20-to-life," and "30-to-life" and the majority of the voters were in favor of the death penalty, the holdouts routinely were forced to move over to the other side if they wanted to ever go home.

Inclusion of the life-without-parole option was intended in part to give juries an option to the death penalty if they were fearful that the defendant might get paroled. As we have seen, that didn't entirely solve the problem of "hung" juries being forced to "unhang" themselves and hang the defendant instead (so to speak).

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