Stretching the law – Applying old law to modern realities

 

[Tortoise and hare*]

Reality and law are a bit like the hare and the tortoise. While the former advances at breakneck speed, the other crawls forward at its own pace, seemingly oblivious to time. The intersection of new reality and antiquated law often requires courts to apply great creativity in applying statutes whether in terms of scope or extension.

A curious example was the case of the woman recently sentenced to one year in jail and ordered to pay 30,000 USD in restitution for entering a store in March of 2021 and intentionally coughing, spitting on merchandise and yelling that she had the Corona virus and people were going to die. She was drunk at the time and later regretted the incident but these are sensitive times. See here for more details. The interesting aspect of this case was that she was convicted of making bomb threats, a felony. I suppose the charge of endangering public health would have also applied but probably carried a lesser punishment. Given the fact that until now only governments had been involved in biological weapons, it is not surprising that no statute specific for intentional disease spreading. I would have to agree that telling people that they would die of Corona is a quite a bomb threat.

An older threat is the Nigerian scam, which involves informing people by email that they have been awarded money in order to get them to reveal their bank details. It is not an accident that that these scammers are generally not physically located in the United States. The Mail Fraud Statute dates from the late 19^th century while the US Government enacted the Wire Fraud statue in the 1950's, both quite a while before the Internet and email. However, they are written quite broadly. They require the use of mail or wire communication, the intent to defraud and material deception. (For more details see here.) The courts have found it quite easy to extend its provisions to email crime. After all, the only difference is the letter e. US law is often written quite loosely in order to cope with future changes and avoid the continuous need to amend laws.

A more complicated challenge arises when the law is specific but the structural reality has changed. For example, when the US Constitution was finally ratified with all its amendments in 1790, the British and, consequently,US, legal system consisted of two parallel systems applying common law and equity, respectively. In overly simple terms the former could decree punishment while the latter could issue injunctions. The 6^th amendment to the US Constitution guarantees the right to a jury trial for the former but not the latter. Two changes occurred: the US and UK  merged these courts; and new modern crimes emerged. For example, when the SEC was formed to regulate the stock market in 1934, it had the power to prosecute financial crimes and demand both fines and injunctions. The issue of whether the defendant is entitled to a jury trial has kept the US courts of appeal quite busy. For example, in 2016, a Ninth Circuit Court opinion, in the case of U.S. Securities & Exchange Commission v. Jensen, following precedence, transposed the distinction to modern times and ruled that when a legal remedy (civil fines) is involved, the right to a jury trial is relevant. See here for more details. In other words, they acted as if the trial had occurred in 1790. There are several other areas of law where US judges act on the same basis.

So, while watching the speedy rabbit of reality may be fascinating in its own way, observing the plodding legal system cope with reality is no less captivating, albeit frustrating at time. I assume that other legal systems face the same problem and cope with it in their own way. Law truly stretches the mind.

* Add captions to picture help the blind access the Internet. Picture credit: Image by <a href="https://pixabay.com/users/stephenwheeler-23068626/?utm_source=link-attribution&amp;utm_medium=referral&amp;utm_campaign=image&amp;utm_content=6570775">StephenWheeler</a> from <a href="https://pixabay.com/?utm_source=link-attribution&amp;utm_medium=referral&amp;utm_campaign=image&amp;utm_content=6570775">Pixabay</a>

Foreign tolerance

                                                          
                                                            [Picture of Oliver Cromwell*]

For every native-speaker of English, there are around four non-native speakers. This means 80% of English users not only have imperfect knowledge of English grammar and spelling but how to express tone. In other words, of increasing importance due to social media, most are not familiar with the manner in which it is possible to express ideas without sounding rude or aggressive. In this regard, it is important to understand that each language has its own acceptable style of written expression, which may sound ridiculous or rude when translating literally.

Two extremes are French and Hebrew. French is a flowery language arising from a culture that highly values formal politeness.  Some beautiful phrases found common in French correspondence of all kinds include: nous avons l’honneuer de …  [we have the honor of], je suis dans l’obligation [I am in the obligation of], en vous addressant mes meilleurs voeux de succes [in sending my best wishes of success], and je me permits d’attirer votre attention [I allow myself to bring it to your attention], even when the the content does not reflect such thoughts. By contrast, Israeli society and the Hebrew language are quite direct, if not blunt, which is reflected in the written language. For example, Hebrew generally avoids use of such fillers as please in  sentences and how are you doing at the beginning of emails. Since, its syntax generally follows the subject-verb-object order and the language has often has few synonyms, the message is to the point. Its tendency to call a spade a spade is the polar opposite of the French indirect style.

English is a direct language in terms of sentence syntax but developed in a class society that valued politeness. In practical terms, the polish in English correspondence is added through doubt, understatement and vagueness, among others. To avoid putting people in uncomfortable corners, English has many phrases to allow for error, at least in form. These include to the best of my knowledge, as far as I can know, it appears that and I have received information that. These words avoid direct accusation. Another technique, typically British, is reducing the severity of the term, sometimes to the point of sarcasm. For instance, your services did not meet my satisfaction means that the contractor’s worker was awful while I find it regretful often expresses great anger. When it would be too confrontational to formally mention a painful matter, native English speakers prefer vague terms. Some examples include please advise, payment issues, contractual obligations and resolving the issue. Using these techniques, English correspondence loses its uncomfortable aggressiveness at least as far as native speakers are concerned.

However, most users of English are neither native speakers nor advanced students of English in terms of formal studies or living in an English-speaking country. At the same time, they increasingly are active in international writing, especially in social media and email. Their language is generally understandable in terms of content but sometimes creates misunderstanding in terms of tone. Specifically, the writer may have intended the greatest respect but the reader, especially a native English speaker, may forget that the writer does not share a common culture and interpret a comment as rude, even insulting, or bloated This communication gap can create avoidable communication barriers.

In terms of implications, it is clear that non-native English-speaking professionals that actively use email and social media should seek guidance on the matter to ensure that they transmit their true message. For example, my wife, an Israeli, occasionally consults me in regards to sensitive email to make sure that the underlying message is effectively expressed. On a greater scale, when reading and reacting to various comments in social media, especially Facebook, it is important to consider the background of the writers. If they are non-native English speakers writing in English, however correct that English may be, they may be entirely unaware of English writing conventions and, consequently, how insulting their comments sounded to a native English speaker. Accordingly, we native speakers must be patient with foreigners not only because they are the majority but also because the vast majority have limited knowledge of English. I hope for the same when I write in French or Hebrew. As Cromwell would say, tolerance is the basis for a civil society.

* For the sake of the blind, do not forget to caption your pictures. Picture taken from wikipedia site.

Are we human or are we freelancers?

During a recent seminar on professional positioning, the participants had an interesting discussion  on the correctness of writing in a professional email that you are not available for work because you have to go to the birthday party of your four-year old child or something of that nature.  Does this open up communication and make you more accessible or is this completely unprofessional?  This issue would apply to almost all freelancers whose primary means of communication is email.

Before considering that question, the following social status facts should be considered.  At least in translation, the vast majority of freelance translators work from their home.  A clear majority are women.  A good percentage, but probably not a majority, is married with children.   This means that significant percentage of translators is busy with such household tasks such as laundry, cooking, and errands as well as translation during the day, not that anybody really cares.

Given that fact, household management tasks do affect deadlines.  As was stated by one participant in that workshop, it is clearly more professional to say “when I get back to my office” as compared to “when I get home” even if home is the office. So, freelances need to keep their professional life separate from their personal life. At the same time, there is a need to make an impression on Project Managers so that we become more than a faceless name in their books.  Discovering both you and the PM both have a child of the same age or name can in some cases lead to a dialogue that will lead to more referrals. 

The decision on whether to expose or ignore your personal life is both personal and cultural.  Some people, regardless of the culture around them, function with clear, distinguished domains.  It is often difficult to know whether the Project Manager thinks in this manner.  Cultural factors can be a determining factor.  Some cultures are more informal, such as Israel and Australia, while others are much more formal, such as Germany and England.  Also, the age of the parties is important.  For example, younger Americans tend to use their first names and be more informal in correspondence than the previous generation, where Mr. and Mrs. replaced the first name.

In response to the question in the title, I can quote that wonderful line by Oscar Wilde: everything in moderation, including moderation.  Think before you write, but you are allowed sometimes to share something besides your professional knowledge.  After all, we are both human and freelancers.