Document Type

Article

Publication Date

9-27-2011

Abstract

Many issues of statutory interpretation arise due to a cognitive collision between the facts of the case at hand and the mental stock structure implicated by a word or phrase in the applicable statute Consider for example a statute that regulates chairs For most people the stock structure for chair would be a mental image of an object with four legs and a backrest designed for one person to sit on Would this statute apply to benches How about stools Or couches Each of these words conjures up its own stock structure that is close to yet inconsistent with the stock structure for chair As this simple example illustrates then many issues of statutory interpretation arise based on a collision of seemingly incompatible cognitive images Statutory issues such as these are a consequence of cognitive linguistics Based on its typical linguistic usage in American English the word at issue in the statute like chair conjures up a specific cognitive stock structure that is incompatible with the item or concept represented by the current case like a couchThese types of statutory issues present unique problems for legal advocates Generally legal advocates attempting to resolve issues of statutory ambiguity turn directly to standard tools of statutory interpretation such as legislative history canons of statutory construction persuasive judicial precedent and policy However in issues such as these the statute seems to unambiguously exclude the item or concept under analysis and courts generally prohibit the use of extrinsic adds of statutory interpretation when the statute is unambiguous on its face Thus a legal advocate in these situations faces a threshold linguistic hurdle The advocate as an initial matter must offer a linguistic explanation B a linguistic hook if you will B that plausibly reconciles the instinctive cognitive collision presented by the statutory issue at hand Only after the statutory issue is at least plausibly resolved from a linguistic and cognitive standpoint can the advocate turn to the other more conventional tools of statutory argumentThis article explores some relatively untapped and underappreciated advocacy techniques for overcoming adverse stock structures implicated by statutory language Specifically this article explores strategies that enable a legal advocate to evoke B consciously and with design B an alternative and more favorable stock structure that is compatible with both the statutory language and the clients facts As we will see these strategies provide advocates with the very linguistic hook that is needed to open the issue up for other more conventional forms of statutory analysis he ultimate goal of this article is to provide legal advocates with potentially powerful new advocacy strategies in issues of statutory interpretationPart I of this article explains the theory underlying cognitive stock structures and identifies two distinct forms of statutory ambiguity that stem from stock structures implicated by statutory language As we will see only one of these forms of ambiguity presents advocates with the type of linguistic hurdle discussed here Part II then explores specific strategies by which a legal advocate can attempt to overcome this linguistic hurdle Part III wraps up the discussion by explaining the relevance and usefulness of these techniques in the general context of statutory advocacy

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