Illogic in American Law

In The Paper Chase, actor John Houseman tells his first-year law students:  “You come in here with a skull full of mush; you leave thinking like a lawyer.” But after all the time, and money, and debt that might run into the six figures, one would hope that law school grads could at least handle simple conjunctions, like “or.”

Unfortunately, that doesn’t seem to be the case. And for a lawyer, the inability to correctly handle “or” can be a liability. That might be why law professor Sarah Lawsky wrote “Formal Logic in Law School?” In her article, she examines the fascinating case of O’Donnabhain v. Commissioner of Internal Revenue (2010), decided by the U.S. Tax Court. At issue was whether a taxpayer suffering from “gender identity disorder” could deduct from his/her taxes the cost of gender reassignment surgery. 

What’s also interesting is that Judge James S. Halpern, in his concurring opinion, actually includes the URL of the Wikipedia entry for De Morgan’s laws. For you law students out there, De Morgan’s logic laws govern “or” and its negation.

In “The Plain Language of the Provision” (pages 77-81) Judge Halpern delivers quite a little lecture on the logic of “or”:

Because the second part of the test contains two expressions separated by “or”, that part of the test contains a “disjunction”; i.e., a compound proposition that is true if one of its elements is true.

Halpern then applies formal logic to the case and points out that Judge Foley’s ruling contains the “negation of a disjunction.” Applying negation to disjunction is a common mistake, and it results in statements that are at best indefinite and at worst illogical; I call it the “not-or error.” Ms. Lawsky:

Judge Foley is, however, unimpressed by the invocation of De Morgan’s laws. “Congressional intent is not subservient to De Morgan’s laws,” he writes. The majority’s opinion, and Judge Halpern’s reading, is too broad, he claims, and does not respect Congress’s intent[. …] In other words, Judge Foley believes that formal logic should not control the interpretation of this statute.

That means that America must leave it to the judiciary to divine “Congress’s perceived intent” in legislation riddled with illogic. (Sound like legislating from the bench?) Lawsky also cites an author who discusses a “forfeiture statute that is, he says, a good candidate for disregarding the distinction between ‘and’ and ‘or’.”

Perhaps America’s judges should hire logicians to vet their opinions before they’re delivered. In a blog post, law professor Eugene Volokh takes issue with a Supreme Court ruling for breaking De Morgan’s Laws and thereby “having their opinion reduced to incoherence.”

We also find that Supreme Court Justice William O. Douglas committed our little error in the penultimate sentence of Harper v. Virginia Board of Elections (1966): “For, to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; …”

Well, which is it that has “no relation to voting qualifications”? Is it “wealth” or “fee paying”? If Douglas is asserting that wealth and fee paying are synonyms, then he might have written “wealth (or fee paying).” If not, then this would have been clearer: Neither wealth nor fee paying have any relation to voting qualifications.

In addition to judges, lawmakers and regulators should also have logicians look over their handiwork before burdening the public with it.

Consider Delaware’s instruction (pdf page 7) for the ID Number to be put on Line 6 of the National Mail Voter Registration Form: “If you do not have a driver’s license or a nonoperating identification or a social security number, please write “NONE” on the form.” If folks in Delaware can’t have both a driver’s license and a non-operating identification, then this statement is commanding all registrants in Delaware to write down “NONE.”

Now, when you sign this voter registration application, you swear that the information provided is “true to the best of my knowledge under penalty of perjury.” As listed on the form, that penalty can be a fine, imprisonment or deportation. (I hope your lawyer is familiar with De Morgan.)

Consider Sec. 5000A(g)(2)(A) on page 249 of the Affordable Care Act:

‘‘(A) WAIVER OF CRIMINAL PENALTIES.—In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

So, could the IRS slap on a penalty (for failure to pay a penalty) as long as it isn’t part of a criminal prosecution? Was this use of “or” deliberate? There’s more:

In defining the essential health benefits under paragraph (1), the Secretary shall […] (D) ensure that health benefits established as essential not be subject to denial to individuals against their wishes on the basis of the individuals’ age or expected length of life or of the individuals’ present or predicted disability, degree of medical dependency, or quality of life; [Sec. 1302(b)(4)(D); page 164]

Someone should have read the bill, because the ACA isn’t saying anything definite here. What it’s saying is that of the listed conditions, one cannot be used to deny benefits, and it doesn’t specify which one. Perhaps one or more of the conditions could be used to deny benefits. If the drafters of this section intended that none of the listed conditions can be used to deny benefits, then they should have used the word “nor.”

One wonders if its ambiguity could provide the makings of another court challenge to ObamaCare. Perhaps the Supreme Court would rule that “or” means “nor.” After all, they ruled in NFIB v. Sebelius that a penalty is a tax and that a command is a choice.

“Nor” and “or” are most definitely not interchangeable in formal logic, so they shouldn’t be interchangeable in the law. So use the correct conjunction; it might help save the republic.