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Monday, September 3, 2018

UPDATE

Alas, we were not approved to adopt the cat.  It seems we could not realistically offer the cat a twenty year guaranteed home.  Now, the agency facilitating the adoption knew that before it sent us on the wild goose chase [are wild geese especially hard to catch, or does “wild” modify “chase,” not “goose”?]  Susie was bitterly disappointed, and I wrote a stern email to the agency.  It would be easier to adopt a Russian baby, were it not for the Magnitsky Act.

Rats.

26 comments:

MS said...

My unsolicited advice - get a dog. There are a lot of abandoned dogs in animal shelters that need a good home and are yearning to live with a family that they can show canine loyalty to. And if you are, by chance, looking for a good movie to see this week-end, I recommend "Alpha." It is much better than the movie "Cats."

s. wallerstein said...

A completely innocent question.

I know nothing about pet laws in the U.S.. If you can't adopt a cat, can't you buy one from someone whose cat has had kittens or from a pet shop?

Anonymous said...

Farms often have kittens--for free--with no legal/bureaucratic strings attached. (This is northern New England.) We got an eight-weeks old farm kitten almost exactly one year ago. He's staring at me right now, thinking about jumping up on the keyboard. I need to finish this quick.

MS said...

Regarding the meaning of the phrase “wild goose chase,” the natural interpretation is to say that “wild” modifies the word immediately adjacent to it. But one might contend that this is incorrect, because it would be redundant – geese are naturally wild. Under this interpretation, the immediate adjacent rule applies to the phrase “goose chase,” not “goose.” Buttressing this interpretation, one might note that there are, in fact, domesticated geese, but trying to chase one down can still lead to a “wild chase.”

In law, the resolution of such grammatical issues can have critical implications. For example, in a case that was recently decided by the U.S. Supreme Court, 136 S. Ct. 958 (2016), the question whether all the terms of a disjunctive (“relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct”) were modified by the concluding phrase “involving a minor or ward,” or only the last term of the disjunctive, was determaninative of whether or not the criminal defendant was subject to a 10-year mandatory minimum sentence. The decision pitted two Justices, Sonia Sontomayor and Elena Kagan, normally allies, against one another. Justice Sonia Sontomayor, writing for the majority, applied the “rule of the last antecedent” and held that only the last of the disjunctive terms was modified by the concluding phrase, thereby affirming the imposition of the minimum sentence. Elena Kagan, writing for the dissent, disagreed. For an interesting discussion of the decision see “Elena Kagan Is the Best Writer on the Supreme Court,” http://www.slate.com/articles/news_and_politics/jurisprudence/2016/03/elena_kagan_s_dissent_in_lockhart_v_united_states_shows_she_s_scalia_s_successor.html

MS said...

Errata

In a comment discussing grammar, one should be expected to get spelling correct. "Determinative" not "determaninative." My head is bowed.

Dean said...

FWIW, OED has entries for both "wild goose" and "wild goose chase." The latter includes a historical illustration from Shakespeare, Romeo & Juliet: "Nay if thy wits runne the wildgoose chase, I haue done: for I am sure thou hast more of the goose in one of thy wits, than I haue in al my fiue." The entry reads, "An erratic course taken or led by one person (or thing) and followed (or that may be followed) by another (or taken by a person in following his own inclinations or impulses); in later use (the origin being forgotten) apprehended as ‘a pursuit of something as unlikely to be caught as the wild goose’ (Johnson); a foolish, fruitless, or hopeless quest." Another, now obsolete, use is, "A kind of horse-race or sport in which the second or any succeeding horse had to follow accurately the course of the leader (at a definite interval), like a flight of wild geese."

MS said...

My cinematic sensibilities are redeemed. The website Rotten Tomatoes accords the movie "Cats" a critical rating of 20%; the movie "Alpha" has received an 80% rating.

Anonymous said...

Experiences like these led me to adopt my cats from a breeder.

Anonymous said...

The 18th century English literary giant Dr. Samuel Johnson had a beloved cat named Hodge. There’s a well-known statue of Hodge in London. The Victorian/Edwardian Idealist philosopher John McTaggart (known today for a clever argument denying the reality of time) had a cat named Pushkin. One day one of the other Cambridge faculty members chided Pushkin for jumping up and sitting on McTaggart’s lap. McTaggart waved the critic aside, pointing out that metaphysicians make out a whole lot better than cats do because “I can think of the Absolute; poor Pushkin can’t.” (Or words to that effect.) McTaggart’s famous Oxford Idealist contemporary F.H. Bradley hated cats (but was fond of dogs). It is said of Bradley that: “He liked guns and disliked cats, indulging his preferences economically by using the former to shoot the latter in the college grounds at night.” I don’t know what Bradley thought of fish, but he did write that “where all is rotten, it is man’s work to cry ‘stinking fish,’” which might be a good motto for a left-of-center critic of contemporary American politics. Of the Mueller investigation, one might also invoke Bradley’s idea that “where everything is bad, it must be good to know the worst.” Bradley expressed some sympathy for Leibnitz (who, I think, looked like a poodle), but qualified it memorably: “The world is the best of all possible worlds, and everything in it is a necessary evil.” Bradley thought so highly of dogs that he mulled over their mental abilities several times, and suggested that dogs have the first beginnings of metaphysical thinking: the dog’s “system of logic, if he had one, would be simple; for it would begin, I am sure, and would end with this axiom, ‘What is smells, and what does not smell is nothing.’” I just placed Volume I of Bradley’s Principles of Logic (from which that last quotation comes) on the table beside my computer; my cat noticed me doing so, and came over and sniffed the book. Looks like, as far as he’s concerned, there’s nothing there, though it certainly smells like something. A dog might have found it more interesting. Now, my cat is eyeing my laptop keyboard again. It is a place to sit. That is its reason for being. But unlike Pushkin, he’s not going to be allowed to stay there. Get down, Billy. Billy is staring at me—perhaps thinking, you’re no metaphysician, because if you were, you’d let me sit here. QED.

I have a goose line from another early 20th century English philosopher, R.G. Collingwood, but this note has gone on long enough, so I’ll leave that for later. It is quite good though, and is applicable to commentary on contemporary American politics.

MS said...

Anonymous,

Thank you for the amusing anecdotes about McTaggart and Bradley.

As an aside, the political news keeps intruding on my equanimity. Trump is now mocking the wonderful Irish ballad "Danny Boy," presumably because it was John McCain's favorite song and was performed at his funeral. And on Labor Day – Labor Day! – he attacks Richard Trumka, the president of the AFL-CIO.

Lord, when will it stop, when will it stop?!

An old Jewish curse: May all his teeth fall out, except one for pain.

MS said...

Anonymous,

On your prompting, I looked up John McTaggart's argument for the unreality of time. It's not enough that the news about Trump disturbs my equanimity, now I have this argument to contend with.

I have to reread the argument, and am hoping that it is subject to the same criticisms that undermine Zeno's paradoxes denying the existence of motion.

Anonymous said...

MS

I'm Irish. Trump has crossed a line too many. He should leave Danny Boy alone, even if it is maudlin mush.

With regard to McTaggart, his argument for the unreality of time was published at least twice. Once in 1908, and then posthumously, in 1927. So much for the unreality of the A series and the B series for him in vivo. There seems to have been both an Earlier and a Later, as well as a Past, Present, and Future, in his professional career and in his life, too, after all. If I remember correctly, McTaggart was a shrewd character, known for his financial investment savvy--and advice. Maybe this included stocks, I don't know. Perhaps he was a sort of Warren Buffet crossed with a mystic. He was also known to be a militant atheist, which probably evinced some courage on his part, given the prevailing attitudes to atheism in England back then. I mean, he was indeed a full Professor at Cambridge. The atheism wouldn't have gone unnoticed. Bradley likewise denied the reality of time. And so did Kant: at least, he didn't think that time applied to (noumenal) reality. I remember back in the late 1960s when I first read McTaggart, I noticed that in the second line of his famous essay on the unreality of time (1908) he said "I shall prove..." I thought there was something amiss with that. Something not quite right about the "shall."

Anonymous said...

MS
You wrote: “In law, the resolution of such grammatical issues can have critical implications.” I’m aware of a recent case involving an issue of punctuation that had some pretty significant consequences. You may find this interesting. If you do, the story of the case can be found at various sites on-line by typing in Oakhurst Dairy and Oxford Comma. (It’s in Justia, for example, and in the NYT). The dairy is a local one in southern coastal Maine, not far from where I live—though it was bought out some years back and is owned by a big out-of-state conglomerate. (Hence—there’s money to be made in court. Etc.) Anyway, the case involved contract law and something called, by grammarians, the Oxford Comma. Watch out for that. This isn’t just E.B. White pedantry anymore. (E.B. White was probably wrong about the Oxford Comma, too. Even though he lived in Maine. For me his “Little Book” is about as plausible and canonical as Mao’s little red tract. Which is to say it ain’t plausible or canonical. Just to make White’s not wholly benign ghost wince.) The Oxford Comma is also called a Serial Comma, and all that is on the internet, too. Basically, it’s the final comma used in a list of things: you can write “We brought bread, wine, and salami to the picnic.” That last comma is the Oxford Comma. You could render the same idea, on might claim, without that last comma: “We brought bread, wine and salami to the picnic.” I don’t like the latter; I prefer the former. When it comes to contract law, the first circuit court of appeals doesn’t like the latter version at all: leaving out the Oxford Comma can cost you $5 million. And that’s what it cost Oakhurst. The company had a contract with, I think, the truckers (it doesn’t matter; the details can be found on the internet) and because the Oxford Comma was omitted from the contract between the company and the plaintiffs (the truckers, or whoever) the plaintiffs construed some crucial clause in the contract one way, while the company construed it otherwise. So, everything turned on the absence of a comma. The court decided in favor of the plaintiffs, and some deal was worked out over the course of a year, and the plaintiffs got $5 million, or maybe their lawyers got it. I don’t know, and it doesn’t matter (to me). So that’s that. My son used to be a law clerk for that appellate court (5 years ago), before he went to Sullivan and Cromwell, in NYC. (Yes, he’s the one who got jury duty, even though he’s a lawyer and a philosophy major.) Anyway, I mentioned that case to him, in 2017, and he told me that the writing guidelines at S&C were anti-Oxford Comma. I said, they’re going to have to change that—there’s precedent now ruling in favor of the Oxford Comma. So guidebooks will have to be rewritten. There will have to be short-courses on up-to-date usage, and so on. You know the drill. I don’t know what’s happened in legalese land, but I know a precedent is a big deal. And there’s one now for the Oxford Comma. Hooray for the Oxford Comma.

Dean said...

The Oakhurst Dairy provision enumerated exceptions to an overtime pay requirement:

"The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods."

The truckers read the last clause--"packing for shipment or distribution of..."--as an exception for "packing," while the company read "packing" and "distribution" as alternative excepted activities. The truckers prevailed, due to the sloppy drafting. But of course if the intention really were as the truckers read the contract, then we would expect an "or" between "storing" and "packing." Still, I'm pleased with the result.

MS said...

Anonymous,

I am pleased that my comment reminded you of another case in which resolving a grammatical issue was critical to the outcome. (I assume that you are not the same Anonymous from the thread on the previous posting, “Reading Tea Leaves,” who accused me of monopolizing this blog with my insufferable comments.)

I remember reading about that case and it presented an interesting question regarding the placement of commas in the phrase “packing for shipment or distribution of ... Agricultural produce ... .”. The case was humorously referred to in the article that I read as Nitpickers v. Nitpickers. The question was whether the phrase in a Maine statute (not a contract) included both packing for shipment and packing for distribution, and therefore excluded the activity of distribution by itself. Resolution of this question determined whether truckers who engaged in distribution only, but not packaging for distribution, were entitled to overtime pay, since the law in question excluded overtime for the activity listed. The appellate court ultimately ruled in favor of the truckers, holding that if distribution was to be excluded, the law should have included a comma after “packing for shipment.” For what its worth, I agree with the court’s conclusion.

When I was in college, and when I was practicing law, I consulted E. B. Whites “Elements of Style” religiously. I do not have my copy in front of me (I seem to have misplaced it), but I thought he endorsed the use of the Oxford comma for clarity. There is, for example, a big difference between “baloney, tuna, peanut butter and jelly sandwiches) and “baloney, tuna, peanut butter, and jelly sandwiches.”

Well, I am going to cut this comment short lest I incur the wrath of Anonymous from the previous blog thread and he again calls for my head. After all, people don’t come to Prof. Wolff’s blog to read about my personal experiences. (However, if he has taken my advice, he has skipped over reading this comment altogether.)

Dean said...

There are seventeen sections in Sutherland Statutes & Statutory Construction that pertain to the "comma." Most of them refer to a corollary of the last antecedent rule, namely, "The presence of a comma before a qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one." One section is a bibliography of secondary sources cited in the treatise, including Adams, Bamboozled by A Comma: The Second Circuit's Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp., 16 Scribes J. Legal Writing 45 (2015); and Timbreza, The Elusive Comma: The Proper Role of Punctuation in Statutory Interpretation, 24 Quinnipiac L. Rev. 63 (2005). A section devoted to punctuation commences, "Good drafting reduces the need for punctuation. If only one idea is expressed in a sentence the use of many commas and semicolons is unnecessary."

The disputed text in the Oakhurst Dairy case was a contract, not a statute, but plainly "good drafting" would have avoided a suit.

Anonymous said...

Dean and MS

Yes, I liked the result of the Oakhurst case. I know one of the judges who wrote or anyway concurred in the opinion. He's no dummy. As far as E.B. White goes, his little book is right behind me (not in the Jesus sense of "get behind me, Satan"). ... I see that White's usage rule 2 is in favor of the serial comma. So, I can't hold that one against him. I have other dried bones to pick with him, though. A couple of weeks ago, when there was discussion here about pedantry/pedantic etc. one of the commenters called my attention to some writings of a contemporary British philosopher/linguistics scholar--Geoffrey K. Pullam. Pullam is no fan of Strunk and White. He has a withering and humorous critique of S/W in a couple of papers, one of which is entitled "50 Years of Stupid Grammar Advice" which came out around the 50th anniversary of the initial publication of White's revision of Strunk's original work. You might like to look it up--it's online.

Anonymous said...

The cat has received insufficient attention. Such ageism. One of my cats died at age seven. Their life expectancy is around 12 or 13 years. Perhaps the mighty intellects here consider disappointment over a cat unworthy of attention. Mark my words, I will never comment here again.

RobinMcDugald said...

Wrt cats, maybe you'll find this interesting:

https://www.nybooks.com/daily/2018/08/27/cats-doris-lessing-and-me/

Hope the Columbia series goes well.

MS said...

Sorry Dean, it was the language of a statute, the Maine overtime law, that was at issue. See the text from the First Circuit's decision below:

https://law.justia.com/cases/federal/appellate-courts/ca1/16-1901/16-1901-2017-03-13.html

Dean said...

Thanks, MS. My mistake. The bad drafting, then, is even less forgivable!

Anonymous said...

There’s plenty of data around about the life expectancies of pet cats. The most popular breed of house cat in the U.S. is the American Shorthair. It has an average life expectancy of 15-20 years. My wife and I have had 4 farm-born, American Shorthair cats since 1973, each of which we got (for free) when they were about 8 weeks old. The most recent one was born in July of 2017 and is big, strong, and seems to be very healthy. The other three lived to be, respectively, 18, 20, and 21. The middle cat (the one that lived to be 20) overlapped the other two. The cat that lived to be 18(+) died in 1991; he was the first of our cats. The second one lived from 1989 till 2009. The third one made it to 21 and died on the 21st anniversary of the day we got her from a farm. The cat of my wife’s best friend died last year at 17, after having developed an infection she got by tangling with a porcupine. We have lived in a semi-rural/suburban area, in the middle of an old apple orchard and surrounded by woods, since 1980. Our cats have always had the run of the field and the woods, if they’ve wanted it, and they’ve done alright, despite the ticks and parasite-ridden rodents that they hunt. Anyway, it seems to me that cats can live quite a long time. And this fact may induce among pet adoption bureaucrats the attitude that if you’re beyond certain age, you’re too old to adopt a cat. Sure, this is ageism. But if you want a cat, find a farm-born kitten to take in. Farmers won’t have the same bureaucratic compunctions that pet adoption agency personnel may have.

MS said...

Dean,

The Maine statue has since been amended to clarify that distribution itself is excluded from overtime pay requirements. Today, the truckers would lose the lawsuit.

Anonymous said...

MS/Dean

So, the people who wrote the Oakhurst contract should have known about the statute language, right? The lawyers should have carefully read the language of the statute, right? I live in Maine, and I'm autonomically dubious about anything that emanates from our legislature. (Maine is governed on the cheap: for example, the state representatives and senators get a stipend for their service, but it's not their job--it's not what they do for a living; they don't have local offices, dedicated staff, and so on. Being a state senator or representative is very much along the lines of being a public service volunteer. Non-professional politician sounds nice in theory, but there are problems with it in practice.) We passed a referendum question a couple of years ago to legalize recreational marijuana. After it passed, the Attorney General of the state seems to have discovered that the language of the referendum would--possibly--permit the sale of this stuff to kids. Etc. Etc. I don't know where the thing stands now, and I wouldn't really care, except I don't like people being set upon by the police for having marijuana. Anyway, one has to be careful with taking anything at face value here if the government promulgates it. A contracts lawyer in Maine ought to know that.

MS said...

Anonymous,

First, a correction of my previous comment – the Maine legislature did not amend a “statue,” they amended the statute – my sloppy fingers again.

The case did not involve a contract at all. The truckers were arguing that their employers were violating the Maine statute on overtime pay by not paying them overtime for distributing their products. The employers argued that distributing the products were excluded from the requirement of paying overtime by the relevant exemption in the statute. The truckers (via their attorney(s)) argued that the absence of the comma meant that distribution, per se, was not exempt from the overtime requirement under the statute. The court agreed with the truckers. There was no contract that the employers’ attorneys could have drafted that would have avoided the ambiguity in the statute.

In general, however, yes, attorneys are expected to know the language of their state’s statutes (and federal statutes as well) that are relevant to the legal field(s) in which they specialize – in this case labor and employment law. No attorney, indeed, no Supreme Court justice, can know the law in every area of law – there are just too many, and the law in each specialty is very complicated.

A state’s legislators do not draft the language of the law they enact. In Michigan, where I practiced law, and I suspect in every state, there is a special agency – the Michigan Legislative Service – that drafts the language of statutes intended to meet the objectives of proposed legislation requested by a legislator. The agency is staffed by attorneys whose only job is to draft such language, ensure that the language is coherent and actually meets the objectives requested, and is not inconsistent with the language of other enacted statutes. Unfortunately, they are not always successful, which results in lawsuits.

Charles Pigden said...

My British brother-in-law and his wife adopted a Russian baby. By the time the processes had been gone through I think my adopted niece was nearly four. It was not at all easy though you would think it should have been as my brother-in-law (who is of partly Russian descent) was taking a child off state's hands (thus saving them money) and offering her the chance of a better life.

On the cat thing, why can't they just offer you an old cat? My wife is a cat-breeder and a major player in the the cat-fancy down here in the South Island and she is often involved in rehoming old cats not likely to outlast their likewise elderly owners.