Language Matters Part II: Blight Edition

For a couple of weeks now I've been extensively researching the history of downtown Louisville for an article I'm writing about one specific intersection. In the course of my research, I've learned a lot about the era of "Urban Renewal" that quickly and irreversibly changed the urban landscape. Starting in the 1950s and continuing on until the 1980s, Louisville city government took control of and then demolished more than one hundred city blocks of existing buildings to make way for civic structures, limited private development, housing projects, but mostly parking lots.

This effort was made possible by a number of new laws passed in the immediate post-war years, at the federal, state, and local level. First was the Housing Act of 1949, a federal law which identified "slums" and "blight" as social problems that governments were within their powers to address through eminent domain and mass demolition. The Kentucky equivalent, called the Urban Renewal and Community Development Act, was passed in 1950 and coded as KRS 99.330 et seq. It declared boldly:

That there exist in many communities in this Commonwealth slum areas and blighted areas...which constitute a serious and growing menace, are injurious and inimical to the public health, safety, and welfare of the people of the Commonwealth, and are beyond remedy and control solely by regulatory process in the exercise of police power.

In other words, old buildings and existing urban structures were so totally beyond repair that the government must have the power to eliminate, en masse, these slums and blighted areas. Thus, city and state government, through eminent domain, could seize private property and flatten it, then prepare it for sale to private developers or retain it for the construction of publicly-owned civic structures.

In Louisville, the primary targets of urban renewal were two large areas: one to the west of Sixth Street and the other to the east of Second Street, both between Market and Broadway. The eastern section, once a bustling urban neighborhood with thousands of residents, was demolished and replaced with a medical complex, I-65, and a white housing project called Clarksdale. In the west, the traditional black enclaves of the Walnut district and the Russell neighborhood were crushed under bulldozers, their residents expelled to new housing projects or other areas of the West End.

The full story of Louisville urban renewal is a long one, involving racism, greed, a lust for power, and delusions about the supremacy of automobiles and the economic viability of suburban expansion. But what has piqued my interest was the use of language to further the goals of the renewers. Specifically, the words "slum" and "blight."

"Slum area" means an area in which at least one-fourth (1/4) of all buildings or a predominance of improvements which by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, sanitation, or open spaces, high density of population and overcrowding, or any combination of such factors, are unsafe or unfit to occupy; are conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime: injuriously affect the entire area; or constitute a menace to public health, safety and welfare.

KRS 99.340(1). Slums sound terrible, don't they? Surely the government should have the power to take over and remove dangerous urban construction if it truly constitutes such a "menace." But notice the baseline of "at least one-fourth of all buildings." An urban area with 25% dilapidation is still primarily non-dilapidated. Why would a city want to demolish non-slums, and how would they have the authority to do so? That's where the second part of the provision comes in:

A slum area may include lands, structures, or improvements, the acquisition of which is necessary in order to assure the proper clearance and redevelopment of the entire area and to prevent the spread or recurrence of slum conditions thereby protecting the public health, safety, and welfare.

So there you have it. As long as the government determines that an entire area is vulnerable to "slum conditions," which may consist only 25% of actual "slums," the entire area can be seized and bulldozed. That's extraordinarily convenient if you have an undesirable group of residents you'd like to move away from the more civilized downtown area, or if your developmental vision of the future requires a lot of open space.

What resulted, from the 1950s all the way to the 1990s, at least, was an emptying of crowded downtown neighborhoods -many of which were only slums by association - to make way mostly for parking lots. The architectural legacy of Louisville, dating from as far back as 1800, was bulldozed en masse and thousands of residents were relocated. These actions were upheld as lawful by the Kentucky Supreme Court case of Miller v. Louisville, 321 S.W.2d 237 (Ky. 1959).

Similarly, "blight" was defined very broadly:

"Blighted area" means an area (other than a slum area as defined in this section) where by reason of the predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility, or usefulness, submergency of lots by water or other unsanitary or unsafe conditions, deterioration of site improvements, diversity of ownership, tax delinquency, defective or unusual conditions of title, improper subdivision or obsolete platting, or any combination of such reasons, development of such blighted area (which may include some incidental buildings or improvements) into predominantly housing uses is being prevented.

KRS 99.340(2). Just as with "slums," the government had merely to declare an area "blighted" to be able to seize a neighborhood and bulldoze it to the ground. Emboldened by the U.S. Supreme Court case of Berman v. Parker, 348 U.S. 26 (U.S. 1954), Kentucky courts became widely deferential to legislative determinations of "blighted" and "slums," and property owners were left with no choice but to accept whatever the government paid them to get out.

That is, until 1990, when the definition of "blighted" came before the Kentucky Supreme Court once again. As part of its planned expansion of Louisville International Airport, the city of Louisville passed several ordinances declaring the suburban Prestonia, Highland Park, and Standiford neighborhoods as "blighted." These ordinances allowed the city to relocate the residents and demolish their homes, under the authority of the Urban Renewal and Community Development Act (discussed above). The neighborhood associations opposed the ordinances. The city's ordinances were declared constitutional at the trial court level, and that decision was affirmed by the Kentucky Court of Appeals. But the Kentucky Supreme Court saw things differently.

As discussed above, the definition of "blight" requires that the conditions of a residential area must be bad enough that "development...into predominantly housing uses is being prevented." But the areas slated for demolition were already being used predominantly for housing. They were existing residential neighborhoods. As the Court noted:

The single finding in each of the Ordinances relating to a specific fact indicating blight is "the area is adversely affected by both airport and traffic related noise and other environmental conditions which render it unfit for residential use." Noise is not one of the enumerated conditions in the statutory definition of blight. Even if we were to assume that noise could reasonably be linked to one of the enumerated factors constituting blight, there is not "substantial evidence" in the record of a noise problem rising to the level of safety or such that it is preventing the use of the area for housing.

Prestonia Area Neighborhood Ass'n v. Abramson, 797 S.W.2d 708, 711 (Ky. 1990). In the past, the city had relied upon its power, and the deference of the courts, to simply paint entire neighborhoods as "slums" or "blighted" and then demolish them. That's the same process that leveled dozens of once-vibrant downtown neighborhoods. This time, however, such an exploitation of weighted words such as "blighted" was unsuccessful:

Merely establishing a large administrative and legislative record does not entitle a legislature or administrative agency to declare an apple to be an orange. The record may be replete with expert testimony on similarities between the fruits; however, a legislature or administrative agency, regardless of the size of the record it establishes, cannot lawfully make such a declaration. To by legislative fiat declare an object to be something it is not is such an abuse of discretion as to be arbitrary.

Prestonia, 797 S.W.2d at 712. The ordinances were declared unconstitutional and the city's attempt to seize and demolish the neighborhoods via eminent domain was thwarted. Per the Court's ruling, the government cannot arbitrarily declare a section of a city to be a "slum" or be "blighted" just to quickly achieve whatever its particular civic goal happens to be at the time. At least not in this case. It may or may not have been helpful to the neighborhoods in the Prestonia case that they were almost exclusively white, whereas other Louisville areas cleared by past Urban Renewal efforts were exclusively black.*

The point here is that the definition of a word like "slum" or "blight" can mean the survival or the destruction of homes, of businesses, of entire neighborhoods and districts of large cities. Once again, language matters.

*Ultimately, the neighborhoods slated for demolition as part of the airport expansion settled with the city for several million dollars, and the few remaining residents were relocated. Today, the neighborhoods either sit empty as vacant lots and unused streets, or they have been built upon for airport use.

Language Matters

I often joke that I am "aggressively literate" - I read and write furiously and often. Indeed, my professional life depends on the quality of both my reading and my writing. How I interpret case law, statutes, and constitutional provisions can determine how well I grasp a legal concept, or whether or not I can spot a good case when it walks in the door, or how successful I am arguing a client's position before a judge, jury, or hearing officer. And my writing must be concise and logical - it is the primary vehicle for the majority of my advocacy as an attorney.

To lawyers, words matter. Language matters. We bicker endlessly over the definition of otherwise simple words like "cause," "reasonable," and "shall." The wording of a statute, which seemed clear and broadly inclusive to its authors, can take on an entirely different meaning in the hands of lawyers and judges. And words with important social ramifications, such as "corruption," can be narrowly reinterpreted several times over until they are effectively stripped of import.

In his essay "Politics and the English Language," George Orwell wrote about how language can be manipulated by those in power to control others. Political language, he wrote, is "bad writing" which consists "largely of euphemism, question-begging and sheer cloudy vagueness." Orwell went on:

The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as ‘keeping out of politics’. All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia. When the general atmosphere is bad, language must suffer.

A more recent essay, one by Brett Max Kaufman, examines Orwell's other major critical indictment of political language: Nineteen Eighty-Four. Though we now know the Orwellian nature of U.S. government surveillance, where all electronic communications by all Americans everywhere are routinely scooped up and held for future law enforcement use, our spymaster overlords had to exploit language to capture the unstoppable power they now possess. Kaufman writes:

Take, for example, the government’s bulk collection of Americans’ phone records under Section 215 of the Patriot Act. (Or take, for that matter, “the Patriot Act.”) The statute authorizes the government to obtain “any tangible thing . . . relevant to an authorized investigation” concerning foreign intelligence or terrorism. Yet according to the Foreign Intelligence Surveillance Court’s breathtaking interpretation—which remained secret (and shielded from public scrutiny) until Edward Snowden came along—a record of every single phone call made on American telecommunications networks is “relevant” under Section 215.

The government has claimed that this is so because in order to find the small number of phone records it might be interested in later, it needs all of the records now. But that reading renders the word “relevant” effectively meaningless. Instead of serving as a limitation on the reach of the law, it places almost any conceivable “thing” within the government’s grasp.

In the words of the Privacy and Civil Liberties Oversight Board, which recently put forward an extensive legal analysis of the government’s theory, the interpretation means that relevance “becomes limited only by the government’s technological capacity to ingest information and sift through it efficiently.”

Just as Big Brother exploited language to turn unorthodox thoughts into crimes, our real-life leaders manipulate the meaning of words to further their own authoritarian power grabs. But this is a tricky subject, especially for lawyers. While Kaufman demands that words be given "their ordinary meanings," the obvious question becomes: who gets to decide what is ordinary?

In recent years, judges, including the Justices on the U.S. Supreme Court, have turned more heavily to mainstream dictionaries to define simple words and discern their larger, legal meaning. This has not happened without controversy. Using a common dictionary to define a word in a complicated statute can strip the statute of the legislature's intent. As the famous Judge Learned Hand wrote in 1945:

It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Despite Judge Hand's legacy of legal genius, judges today are largely ignoring him.

Dictionaries reflect common usage, and common usage is a democratic process. If a large enough number of people use a word to mean a certain thing, it can find its way into a dictionary and then later be enshrined as the "official" definition in a binding legal decision. Jargon, improper uses, and "non-words" can be legitimized by majority rule. If, for example, enough people follow the Supreme Court's still-novel interpretation of "corruption" to mean only quid pro quo bribery and nothing more, then that's what corruption comes to mean. That definition, of course, enables all kinds of political influence, "ingratiation," and favor-giving which falls short of bribery but no doubt detaches our representatives from the majority of their constituents.

The point here is that language matters. How we use words matters. Being clear, concise, and consistent is critical to protect us from the overreach of the powerful. Allowing our leaders, whether legislative, executive, or judicial, to speak in vapid, empty terms to cover their underlying abuses of power is a derogation of our duty as citizens. George Orwell didn't just warn us about video and audio surveillance - he warned us about thought surveillance, in the form of manipulated language. We should take heed.

The Dangers of Unchecked Majority

Yesterday, an excellent, up-and-coming online magazine called The Louisville Lip published an essay of mine called We the Tyrants. It addresses the importance of checks against unrestrained majoritarianism like the judicial branch and the U.S. Constitution, and considers how mob rule has caused problems throughout American history. A brief excerpt:

Hypothetical examples of majoritarian tyranny don’t have to be racial to illustrate their constitutional indefensibility. Perhaps in the near future, as conservative paranoia predicts, a state government will become dominated by a ruthless Muslim majority (no doubt personally imported on secret airplanes by Barack Obama) who are bent on installing Shariah law. Should a subsequent constitutional amendment to prohibit Christians from receiving marriage licenses, no matter how popular at the ballot box, survive constitutional challenge?  By the logic of the majoritarian opponents of gay marriage, it should.

However, the Fourteenth Amendment demands that state laws must apply equally to all citizens, and those laws, at the very least, must not draw arbitrary, irrational, or unreasonable divisions between people. The laws must not be motivated by hate or animus. If a state passes a law which discriminates between certain groups, it has to have a good reason to do so. And if a state law discriminates against a group which has historically been treated unfairly, the state has to have an even better reason – a compelling reason – to justify it, and the law has to be very strictly worded as not to infringe on other groups or rights beyond the scope of that compelling reason. Mere popularity just isn't enough. If James Madison, his fellow founders, and brave judges had not had the foresight and determination to protect individual rights from majority passion and power, it would have been, and no end to the injustice of legal inequality would be possible.

If you've been reading this blog for any amount of time, the conflict between majority rule and individual liberty will be a familiar topic to you. I'm deeply interested in the American effort to strike a balance between democracy and freedom. Though we often conflate those two terms, the freedom of the unpopular is always at risk when the popular call the shots, and this struggle has perplexed us from the Revolution to today.

Please check out the full essay, assuming you have an attention span sufficient for approximately four thousand words.

Caring About Legal Typography

Yesterday, the popular legal blog Above the Law took a break from its busy schedule of ridiculing lawyers, law firms, and law schools to ridicule the Court of Appeals for the Seventh Circuit. Not for any decision or ruling, mind you, but for the latest update of its unique "Requirements and Suggestions for Typography in Briefs and Other Papers." Unlike the Federal Rules of Appellate Procedure and the local rules of most courts across the country, the Seventh Circuit not only cares a lot about how submitted documents look, but is kind enough to offer more than minimal guidance to practitioners.

The aggressive snark-wielders at Above the Law (both writers and commenters) have never been very open to the idea that legal writing might benefit from something other than 12-point Times New Roman with one-inch margins. Ninety-two bile-filled comments followed a post suggesting that one space after a period at the end of a sentence is more appropriate than two. A post about font choice (with a plug for Typography for Lawyers author Matthew Butterick), inspired 140 hostile comments including these:

Attention to font = douchebag (14 upvotes)

What a stupid horrible waste of time this article was. (40 upvotes)

And no judge is going to rule against a party because the lawyer went with the default font. Rather, using some ultra-fancy font might indicate that you're trying to improve the appearance rather than the content of your argument. Cf. pigs wearing lipstick. (48 upvotes)

This is terrible advice. As a law clerk, I get pissed off when lawyers submit briefs NOT in times new roman. You're trying to look smart and interested when you use a different font, but to the extent anyone notices, you're just annoying them by being a smartass. (65 upvotes)

There's a reason the law is considered a conservative profession. Fonts as refined and traditional as Garamond are dismissed as "ultra-fancy." The idea that an attorney, whose professional success relies at least half upon his or her ability to write well (the other half upon his or her speaking), might take pride in or give extra attention to the way that writing looks on a page is considered absurd and unserious.

And what about the Seventh Circuit? Home to two of the most respected judicial writers in the entire country, judges Richard Posner and Frank Easterbrook, the Seventh Circuit has long prided itself on demanding the very best writing from its practitioners - an attention to proper form and detail lacking elsewhere. What happens when that court offers a more substantial writing guide than a couple of sentences in the Federal Rules? Smug dismissal:

The federal rules say remarkably little about typeface, and the Seventh Circuit was having none of that vagueness. But instead of making a simple, concrete rule to guarantee that lawyers submit something that won’t make the judges — or their clerks — bleed profusely from the eyes, they churned out seven pages of pedantically detailed instructions. They even explain the difference between 12-point and 14-point fonts using many more words than “the second one is bigger.” Apparently the Seventh Circuit cares more about encouraging clean typefaces than efficient writing.

Unlike those smart alecks, I'm among the apparently few attorneys who actually care how their work appears to others. I spend most of my life crafting letters, motions, and briefs to explain complicated concepts and complex rules, and effectively assert my clients' interests. Those letters, motions, and briefs are meant to be read. If they look bad, chances are the intended reader will lose interest and skim through them, missing important details.

There's nothing totally wrong about 12-point Times New Roman with one-inch margins. But there's nothing inherently right about it, either. In fact, the only reason that font is so reflexively defended by so many people is because Times New Roman just happens to be one of the default fonts in MS Word (along with Calibri). Had the programming geniuses behind the most common word processing software in the world chosen some other font, like Goudy Old Style or Bodoni, commenters on snarky blogs would be ridiculing suggestions to use something other than those, instead.

I don't have to regurgitate all the reasons why Times New Roman is a sub-standard font for writing that appears on the printed page. Matthew Butterick has already made that case very well. But I do want to briefly discuss the typographical styles I use in my own practice, with the hope that it may inspire other attorneys to take more interest in how their very important work looks to others.

Until recently, I was using the font Plantin for all pleadings and other court documents. Plantin was created in 1913 by Monotype, one of the most prominent "font foundries" in the world. It was, incidentally, a major influence on the eventual design of Times New Roman.

Plantin looks good in pleadings, but it does look a little dated, so I recently shifted to a newer font called Eldorado. It was developed in 1953 by American type designer W. A. Dwiggins and has a traditional Roman look to it, despite its allusion to Conquistadors wading through South American swamps in search of hidden gold. I really like the way Eldorado appears on the page. It's not flashy, it's not "ultra-fancy," and it's not dissimilar enough to Times New Roman to invite ridicule from clerks and other judicial ghostwriters. If nothing else, it's extremely easy to read.

For letters and other correspondence, I have consistently relied on the eminently readable Sabon. Typographer Jan Tschichold created the font, which was released in 1967, and it remains extremely popular for use in books and magazines. Stanford University uses Sabon for its logo.

As for page layout, I generally use wider margins than the standard one inch on each side. Since shorter lines are easier to read than longer lines, my margins are usually set at 1.3 inches left and right. I have resisted the urge to adopt drastically wide margins, unlike radical, unserious institutions such as the U.S. Supreme Court. Sometimes I go narrower if I have to adhere to page restrictions and am running close to the limit. Instead of word count, many courts still impose length limits based on number of pages, so sometimes readability must take a back seat to rule compliance. 

Obviously I'm among a small minority of attorneys who have any preference at all for typography beyond the default settings of MS Word. And obviously many of my fellow practitioners fail to see why any of this matters at all. My philosophy is simple: what I write matters. I won't restrict my concern to its content when taking a little extra effort on its form may make it even more effective.

The Articulable Dilemma of Proper Usage

I'm a bit of a language junky. I would never claim to be an expert of the English language, but I dabble in it heavily and consider myself aggressively literate. I read and write furiously and often.

Today, I was reviewing a colleague's letter and found the word "articulable" among his prose. Microsoft does not approve of this word, as the little squiggly red line underneath it in MS Word indicated. I've used this word myself in the past, but the potential for any misspelling in our firm's correspondence is so troubling to me that I had no choice but to research further. Is it really a word?

"Articulable" does indeed show up in the most popular dictionaries. One definition is "capable of being articulated." But just because it's a word (like the much-maligned "irregardless"), that doesn't mean it's a good word or the right word to use in the context created by my colleague. So I dug a little further.

First, I Googled it. On the first page of results was a link to a 2007 opinion piece by the late William Safire titled "The Problem With 'Articulable.'" Uh oh. Safire, a longtime political commentator, was also a passionate student of English and wrote a popular column called "On Language" for the New York Times Magazine. If such a haughty authority on wordplay was concerned by "articulable," maybe I should be, too.

In "The Problem With Articulable," Safire writes:

Have you ever heard anyone articulate the adjective articulable? It's a surefire stumble-over word, to be read and not spoken, concocted by lawyers in the past few decades to fit into the narrow space between clear and specific.

Well, I'm a lawyer and so is my colleague, so clearly Safire blamed the right people. But what, really, is so bad with the word? Safire's back was raised by the use of "articulable" in a draft piece of legislation aimed at requiring journalists to reveal their sources only if the government could identify a national security necessity. Safire supported a very strict wording of the bill's language, allowing sources to be "burned" only in the most dire and dangerous of situations. The Department of Justice, as is usual practice for them in THE WAR ON TERRORISM, wanted a much "fuzzier" standard:

In the markup of the Senate bill, the phrase "preventing a specific case of terrorism against the United States" was watered down at Justice's behest to "preventing an act of terrorism"; the loss of the hard, understandable "specific," however, was rebalanced somewhat by modifying the following "or significant harm" to "other significant and articulable harm."

Safire then discusses the various uses of "articulable" in Fourth Amendment judicial precedent and in official FBI policy decrees, and addresses its Latin etymology. He argues against fuzzy legalese in the bill at issue and supports a strict, specific standard for forcing journalists to expose sources. Then he makes a usage recommendation:

As a word maven, I'd rather use articulatable, rhyming with "debatable"; it's a syllable longer but a lot easier to say. To public speakers, as well as to the free flow of information, its benefit would be incalculable.

Safire was certainly a word maven. But other word mavens exist, so I sought advice from another authority. This time I turned to Bryan Garner, the closest thing to William Safire the legal profession has. I own a copy of Garner's Dictionary of Legal Usage, and quickly found the entry for "articulable." Does Garner endorse Safire's alternative spelling?

It will likely you surprise you very little that the lawyer-centric authority defends "articulable" as it is. In fact, Garner specifically frowns on Safire's suggested alternative "articulatable" as an "invariably inferior form:"

articulable, not articulatable, is the correct form - e.g.: "The government argues that the stop of the car was either part of an 'extended border search' or a 'Terry stop' based on articulatable [read articulable] suspicion." U.S. v. Weston, 519 F.Supp. 565, 569 (W.D.N.Y. 1981).

And that's all Garner has to say about it.

So, as the thorough and attentive reviewer that I am, what did I decide to do with "articulable" in the body of my colleague's letter? I left it the way it was. After all, the letter was designed to be read, not spoken, so that allays one of Safire's concerns. Further, my colleague and I are in fact lawyers, and though I'm one of the first to decry the over-use of so-called "legalese," the word just seemed correct in the context in which it was presented. "Articulatable," though perhaps easy to say, is more difficult to read. And using something like "specific" or "clear" wouldn't have made as much sense.

And that is what really matters. If a word is actually a word, it makes sense in the context of how it is used, and it's more readable than any alternatives...well, I say go for it. Sorry, Mr. Safire.