Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

2016

Abstract

This Article intends to bring some order to the discussion, both by

means of explaining what the science of the language arts—linguistics—says

about the matter, and by explaining how that science comports with what courts

think they are doing when they determine a government statement is, or is not,

a mandate. Linguists have considered language crimes before, relating to

perjury, bribery, and criminal threats, and I myself have conducted a linguistic

analysis with regard to the civil law Tarasoff context (i.e., “duties to warn”),

but a linguistic analysis of mandates as opposed to guidelines has not yet been

attempted.

Part II will explain the background involving the Federal Tort Claims

Act and its state law counterparts, particularly with regard to the development

of the DFE. Part III will demonstrate what mandates mean by the employment

of speech act theory and the concept of implicature, both of which are

dimensions of pragmatics, itself the branch of linguistics dedicated to

explaining how language functions in context. Part IV will demonstrate the

type of analysis that the courts have used in determining whether a government

statement is a mandate or a guideline. Part V will set out an analytical

framework—a set of factors—for courts to use in determining this issue, based

both upon the pragmatic study conducted in Part III, and upon a formalization

of what precedent shows the courts have been doing, which is the subject of

Part IV. This part will also prioritize the factors, suggest a rationale for their

application, and explain how they comport with other tools of statutory

interpretation and construction. Part VI will conclude.

Included in

Torts Commons

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