Academic Legal Writing - Eugene Volokh [81]
This further reinforces the need to check the original sources rather than relying on articles that cite those sources. But it's also a reminder to consider carefully the distinctions between different terms. Under U.S. law, nearly all noncitizens are foreign-born; but not all the foreign born are noncitizens. The two terms are not synonymous, and can't be used interchangeably.
2. Include all necessary qualifiers
Legal rules often get compressed to short phrases that omit a lot of detail. Sometimes this is necessary, especially when the rule is tangential to your main point. But when the details of a rule are relevant, you should include all the qualifiers needed to make your discussion accurate.
For instance, is it correct to say that Zacchini v. Scripps–Howard Broadcasting Co. upheld the right of publicity against First Amendment challenge? Well, the Court did uphold a narrow version of that right—the right to stop others from rebroadcasting one's entire performance—but not the much more commonly invoked broader version, the right to stop others from using one's name or likeness for commercial purposes.36 So saying that Zacchini held that the right of publicity is constitutional, as some do,37 is a mistake: It fails to acknowledge that the Court considered only the narrower version of the right.
Likewise, if you want to use Justice Holmes' aphorism that the First Amendment doesn't protect people's right to shout fire in a crowded theater, do so correctly: Remember that the phrase is “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”38 People quoting the phrase usually drop the “falsely,”39 which changes the meaning substantially. (False statements of fact are often constitutionally unprotected; true ones, even if harmful, are generally protected.)
You could argue that even accurately shouting “fire” in a crowded theater is so dangerous that it should be prohibited. But if you want to make that argument, make it explicitly, rather than relying on the authority of a statement that says something quite different.40
Omitting necessary qualifiers is closely related to using false synonyms: “Foreign-born,” for instance, is a false synonym for “noncitizen,” because it omits the qualifier “unnaturalized.” Likewise, “the right of publicity” is a false synonym for the right mentioned in Zacchini; the terms are used interchangeably in casual asides, but they are in fact quite different.
More broadly, these are instances of the careless use of language—using terms without thinking hard about what exactly they mean.
3. Use precise terms rather than vague ones
“Almost 1,000 children,” an article reports, “die each year from unintentional gunshot wounds.”
Exactly what does this mean? At first, the phrase might not seem vague, but it is: Does “children” refer to minors—people younger than 18? This might seem plausible, but actually we rarely call 17–year-olds “children.” I suspect that the connotation of “child” is mostly limited to younger people. Does it refer to 0–to–14–year-olds, a range that's commonly used in fatality statistics?41 Does it refer to pre-teenagers?
In fact, it turns out that the article apparently refers to all 0–to–24–year-olds.42 This is an outright error, since even the vague term “children” clearly can't mean that.
But even if “almost 1,000 children” referred to some more reasonable age range, the phrase is still vaguer than it should be. Instead of