By far the most testy moments of the conference arose out of the following problem. The Supreme Court had interpreted "knowingly" in a criminal statute regulating interstate commerce of child pornography to cover the age of participants, even though the placement of knowingly" in the statutory provision would, according to standard usages of English grammar, lead to its not being applied to that element of the crime. All participants at our conference fairly quickly acknowledged the following two truths: (1) the Court's construction did not fit ordinary English grammar, and (2) there might be appropriate (legal) reasons why statutory construction of a criminal statute would assign "knowingly" a force exceeding that indicated by ordinary English usage. This agreement was accompanied by sharp disagreement over whether one could properly speak of a "language of law" according to which "knowingly" had this special extension in criminal statutes. The lawyers said "yes"; the linguists said "no." No lawyer asserted that a clear practice of this sort actually exists, only that it might exist and that reasons relating to desirable culpability requirements might support it. The lawyers, at least this lawyer, attached no great significance to whether such a practice could be part of a "language," but we were exasperated by the linguists' assurance that it could not. Modest reading after the conference has reinforced my impression that the state of the discipline of linguistics leads scholars in that field to insist that languages have consistent rules of grammar. Therefore, the legal practice, if it existed, would have to be characterized in other terms. The basis for this underlying assumption about what are languages may be (I am not confident enough to assert that it is) the study of natural languages by linguists and their theories about the human mind as it relates to language. I (and others) insisted that whether the legal practice, if it existed, could be called an aspect of "legal language in the United States" was a matter neither of description nor normative judgment, but one of conceptualization. We claimed that it was somewhat arbitrary to preclude a conceptualization of "legal language" on the ground that the treatment of "knowingly" suggested no general, consistent, alternative grammatical practice, but rather amounted to an ad hoc deviation from ordinary practice. My views about this have not changed, but I now see two other questions as more important than the one on which we mainly focused.
The "Language of Law" and "More Probable Than Not": Some Brief Thoughts,
Wash. U. L. Q.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3645