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.
Recommended Citation
A.G. Harmon, "Should" or "Must"?: Distinguishing Mandates from Guidelines in Tort Claims Contexts, 118 W. VA. L. REV. 100 (2016).
