Jacob L. Moreno introduced the phrase cultural conserve to describe anything that has the effect of preserving valuable cultural memories, such as skills, discoveries, concepts, or moral values. Culture is conserved by culture carriers, that is, those who carry something forward from one generation to the next.
One way culture is conserved is tradition. Tradition is acknowledging that I have a history. Tradition is acknowledging that for hundreds and hundreds of years before I existed, people existed before me. Those people, like me, wanted to flourish and to a large degree wanted to promote human flourishing.
To promote human flourishing they created customs and beliefs, created or accumulated tools, and bought and maintained property. Some of these things were woven into tradition as a remembrance of something good or noble. Some of these things were woven into tradition as a warning or reminder that some things are bad. These traditions are what make my most intimate community. It is the songs we sing, the dances we dance, the food we eat, and the way we support and care for one another.
To break with tradition is a contemplative act. To some extent, I have to say to myself and others that I have figured something out or been enlightened in some way that they were not. Rather than an act of hubris, breaking with tradition is an act of humility. It is saying to the many that came before me that I somehow got it more right than they did.
But for there to be a place for tradition, culture carriers have to do just that. Culture carriers have to meaningfully examine which parts of the culture, which traditions, they will carry forward into the next generation. To refuse to carry forward no culture is to unhinge from the generations upon generations that did carry forward their part for human flourishing. It is choosing unnecessary suffering and death for this generation.
There is a place for tradition. To choose tradition does not mean that we have to keep the bad along with the good. We can choose to carry forward the tradition that promotes human flourishing and leave the rest to history.
If you are on death row in an Alabama prison, you are scheduled to get an hour a day of yard time. That is, time outside. You are scheduled to get an hour of yard time, but you don’t always get it. You get it unless it storms. You get it unless the prison is short-handed on corrections officers. You get it unless….
I learned about yard time from visiting prisoners. I didn’t understand it until Anthony Ray Hinton explained it.1 He described two types of liberty in prison. One was the trips he would take in his imagination. The other was yard time.
Hinton’s imagination reminded me of William Stringfellow’s statement that true freedom was Daniel Berrigan in prison. I can imagine Berrigan in the cell, eyes closed, boisterous smile. His body is there, but he is not. The truly imprisoned were the correctional officers, the warden – worried, fretting that Berrigan, like Paul, might disappear on their watch. But that is writing for another day.
Then there is yard time. Strange how fences and armed guards border Hinton’s liberty but it was liberty just the same. Not bounded by steel and concrete. A little room to walk. Fresh air to clear his lungs of prison stench. The sun. And the vastness of the sky.
After meeting Hinton, I started thinking about the fact that I could walk outside any time. But I didn’t. In fact, there were many days that I didn’t go outside at all. I had the liberty, but I was choosing to waive it -to give it away. When it comes to the actual experience of liberty, what is the difference between someone who gives it away and someone who it is taken from, even wrongfully taken from, like Hinton?
Now, most every day, I take an hour for yard time. I might be turning the soil, or trimming shrubs, or working on some experiment or project. But while I am out there, I try to experience liberty and how fundamentally American it is just to be outside because I choose to be.2
In Casey v. Beeker, Ala. Supreme Court, Chief Justice Tom Parker concurring specially writes,
I. Legal authorities in general
“In each case, [a court] must support its action by reciting legal rules that mesh adequately with the existing order.” Reed Dickerson, The Interpretation and Application of Statutes 14 (1975). Consequently, attorneys arguing before a court present legal rules that favor their respective clients’ positions, in support of which they will find it necessary to provide legal authority. In this role, attorneys should aspire to “recognize the existence of pertinent legal authorities.” Comment to Rule 3.3, “Misleading Legal Argument,” Ala. R. Prof. Cond.1 Particularly in cases in which this Court grants oral argument, it is typical for there to be no statute or controlling precedent that squares neatly with the facts and issues of the case at hand. When faced with this problem, attorneys must apply legal reasoning to information from other sources. To do so effectively, attorneys must recognize the breadth of potential sources, as well as their usefulness for persuasion. In almost every instance, there will be some legal authority that sheds light on the issue before the Court.
Every legal authority has two characteristics that determine its role in constructing an argument: type and weight. There are two types of legal authority: primary and secondary. In general, primary authority is law and official interpretations of it, for example, constitutions, statutes, local ordinances, executive orders, administrative regulations, court rules, and judicial decisions. Primary authority includes all official pronouncements of a governing body or individual that enact, interpret, or apply a law or legal principle. All primary authorities purport to be binding on someone or did at one time.2 All authorities that are not primary are secondary authorities, that is, unofficial commentary on the law. For example, good attorneys are familiar with their jurisdiction’s leading treatises and periodicals pertaining to their area of practice. Other secondary sources, such as practice manuals and desk books, legal dictionaries and encyclopedias, continuing-legal-education materials, and Internet sources can inform attorneys’ decisions of how to advise a client or build an argument.
Additionally, every authority has one of two weights: mandatory or persuasive. Mandatory authority is authority that a court must follow. Persuasive authority is authority that a court need not follow but that may be used to persuade the court. Only primary authorities can be mandatory, and primary authorities that are not mandatory are persuasive. All secondary authorities are persuasive authorities. Further, the weight of mandatory authorities does not vary: a mandatory authority must be followed. By contrast, some persuasive authorities are more persuasive than others. How persuasive such an authority is depends on many factors, such as the relevance of the commentary, the expertise of the author, and the age of the source. Particularly with respect to persuasive primary authority (e.g., nonbinding judicial statements), an authority’s persuasive value is impacted by the relative positions, within the judicial hierarchy or other governmental structure, of the author and the decision-maker being persuaded.
Many attorneys seem to have little difficulty ascertaining the weight of primary authority. That is good because legal arguments must cite applicable law, and legal conclusions must follow from law and its principles. Consequently, no argument should rest solely on persuasive authority if mandatory authority exists. Put another way, attorneys must acknowledge mandatory authorities, even if persuasive authorities better support their arguments. Further, attorneys cannot depend solely on secondary authority if there is primary authority available.
Some attorneys, however, have the opposite habit: They rely on primary authority to the near-total exclusion of secondary authority. Presumably, this habit has been fostered by the case method of legal education, which has held ascendancy in law schools across the nation for many decades, since shortly after Harvard Law School Dean Christopher Columbus Langdell introduced it in the latter half of the 19th century. See Marie Summerlin Hamm et al., The Rubric Meets the Road in Law Schools: Program Assessment of Student Learning Outcomes as a Fundamental Way for Law Schools to Improve and Fulfill their Respective Missions, 95 U. Det. Mercy L. Rev. 343, 354-57 (2018); David D. Garner, The Continuing Vitality of the Case Method in the Twenty-First Century, 2000 BYU Educ. & L.J. 307, 316-23 (2000); W. Burlette Carter, Reconstructing Langdell, 32 Ga. L. Rev. 1, 48-53 (1997) (discussing Langdell’s de-emphasis of secondary sources in legal education). As a result of Langdell’s influence, legal education places heavy emphasis on distilling and synthesizing rules announced in judicial opinions. Law students may receive an introduction to secondary sources in a first-year legal-research course, but they are rarely called upon to use them in any other context. This case-focused approach has some benefits, such as teaching students to “think like lawyers,” see James R. Maxeiner, Educating Lawyers Now and Then: Two Carnegie Critiques of the Common Law and the Case Method, 35 Int’l J. Legal Info. 1, 1 (2007), but it also conditions them to overlook — and undervalue — the wealth of information that experts have already compiled and condensed to aid understanding and guide research. In addition, the rise of electronic legal-research tools, with their increasingly advanced search capabilities and (more recently) artificial intelligence, has diminished the perceived value of secondary sources, particularly as aids in finding primary authority. It is easy to be lulled into complacency by the power of those tools and forget that the “universal search box” does not have access to the universe of legal information. No single method, industry practice, or tool defines the outer limit of the source types that may inform attorneys’ arguments and help them fulfill their obligations of effective advocacy and candor to the court. Although attorneys are not expected to digest all possible sources that may comment on a given issue, they would do well to draw on the wide variety of credible authorities available to them — especially when arguing appeals.
With this context in mind, I return to the legal issue at hand.
II. Legal authorities on using definitions across word forms
A. Primary sources An abundance of judicial decisions supports the Court’s holding that “the term deliberate’ should be defined based on the statutory definition of deliberation’ found in the [Open Meetings] Act.” _ So. 3d at _. For example, this Court’s handling of the word “deliberate” in Swindle v. Remington, 291 So. 3d 439 (Ala. 2019), is fully consistent with today’s holding. Another supporting decision the Court cites is State v. Schmid, 859 N.W.2d 816 (Minn. 2015), in which the defendant had been convicted under a Minnesota law that “state[d] that a person may not `take’ deer without a license.” Id. at 817. The state’s fish and game laws defined the noun “taking” but not the verb “take.” Id. at 820. The court construed “take” according to the definition of “taking”:
“Taking,’ as defined [by the statute], can be used as a verb, noun, or adjective. When taking’ is used as a verb it has the same underlying definition as the root verb taking’ is used as a gerund or adjective, the difference is not definitional, but syntactical. The verb form is an action performed by a subject, modifiable by adverbs, while the noun form identifies the action as the object of a verb, modifiable by adjectives. Thus, when taking’ are used in the same context, they have the same basic definition. They are merely different syntactical forms of the same word.” Id. at 820-21 (citations omitted).
Swindle and Schmid are far from the only cases that support the Court’s application of a definition of a noun to its verb form. In an opinion construing Texas’s Open Meetings Act, the Texas Court of Criminal Appeals responded skeptically to the State’s argument that the statutory verb “meeting” had a different meaning from the defined noun “meeting.” Texas v. Doyal, 589 S.W.3d 136, 143 n.25 (Tex. Crim. App. 2019) (“It could be argued that the verb meeting’ — so that the noun definition would inform the meaning of the verb.”). Additionally, decisions of the United States Supreme Court and the United States Court of Appeals for the 11th Circuit indicate that it is appropriate to impute the same essential meaning to different forms of the same word or phrase that occur in the same legislation. See, e.g., Astrue v. Ratliff, 560 U.S. 586, 592 (2010) (declining to interpret the noun “award” as having a different meaning from the verb “award” because “[t]he transitive verb “award”‘ has a settled meaning in the litigation context”); Reves v. Ernst & Young, 507 U.S. 170, 178 (1993) (“We conclude . . . that as both a noun and a verb in this subsection conduct’ requires an element of direction.”); Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142 (2011) (explaining that pairing the verb “make” with a noun results in a phrase approximately equivalent in meaning to the verb form of the noun: “To make any . . . statement,’ is thus the approximate equivalent of to state.'”); United States v. Caniff, 955 F.3d 1183, 1189 (11th Cir. 2020) (concluding that the phrase “to make any notice’ simply means to notify'”).
Similarly, the courts of this State have concluded that the meaning of a noun informs the meaning of its verb form, and vice versa. See, e.g., Randolph v. Yellowstone Kit, 83 Ala. 471, 472, 3 So. 706, 707 (1888) (inferring meaning of noun “peddler” from verb “peddle”); Bank of Florala v. Smith, 11 Ala. App. 358, 359, 66 So. 832, 832 (1914) (“[T]he word `mortgage,’ when employed without qualification in [a conveyance], whether as a verb or as a noun . . ., . . . is construed to mean and accomplish what formal terms creating a mortgage would have accomplished . . . .” (emphasis added)).
B. Secondary sources
Further support for the Court’s use of the definition of “deliberation” across word forms exists in secondary authorities regarding principles of statutory interpretation. For example, a legislature communicates “according to accepted standards of communication” existing at the time of the enactment. Dickerson, supra, at 11, 273. Thus, courts presume that the “drafters [of legislation] . . . are . . . grammatical in their compositions.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012). That is, ordinarily, “[w]ords are to be given the meaning that proper grammar and usage would assign them.” Scalia & Garner, supra, at 140; see Nielsen v. Preap, _ U.S. , , 139 S. Ct. 954, 965 (2019) (applying this principle and holding “that the scope of `the alien’ is fixed by the predicate offenses identified in [the preceding] subparagraphs”).
One remarkable characteristic of English grammar and usage is that the same word can often function as many different parts of speech. See Bryan Garner, Garner’s Modern English Usage 416 (4th ed. 2016) (“Renaissance rhetoricians called [this characteristic] enallage . . ., and some modern grammarians call it transfer: the ability of a word to shift from one grammatical function to another.”). A word that is normally a noun may serve as an adjective and vice versa. With only a slight change of spelling and sentence structure, a noun becomes a verb. Many such “functional shifts,” also called “semantic shifts,” are possible and normally acceptable. See Id. at 416-18. Pertinently here, a noun may be used as a verb. Although stylistically legal-writing experts tend to frown on such “nominalization” that creates a “buried verb” or “zombie noun,” their criticism inherently recognizes that the two forms are functionally interchangeable in relation to meaning. See Bryan A. Garner, Garner’s Modern American Usage 120 (3d. ed. 2009); Modern English Usage, supra, at 983; Jason Dykstra, To Verb or Not to Verb, 56 Advocate 49 (2013); Bryan A. Garner, Legal Writing in Plain English 38-39 (2001). This interchangeability has given rise to what one scholar has labeled the “Consistency Principle”: “When a word is used as both a noun and a verb in a single statutory statement, that word should be construed similarly in each instance.” Alani Golanski, Linguistics in Law, 66 Alb. L. Rev. 61, 94 (2002).
From this brief survey, it is evident that a plethora of legal authorities, both primary and secondary, support the Court’s use of the statutory definition of the noun “deliberation” to understand the meaning of its verb form “deliberate.” More importantly, this case illustrates the danger of attorneys assuming an overly restrictive understanding of the scope of legal authority. Attorneys throughout the State would do well to both recognize and employ the full range of sources at their disposal under the rubric of “legal authority.”
I do not suggest that attorneys behave unethically by failing to identify or acknowledge noncontrolling authorities, but only that attorneys do have a duty to ensure the accuracy of any representation that no legal authority exists that supports a proposition that favors the opponent. It is one thing not to disclose noncontrolling authority that supports one’s opponent; it is quite another to affirmatively state that such authority does not exist. ↩
Plurality opinions, concurring opinions, dissenting opinions, and dicta, though generally nonbinding in the sense that they do not contain a court’s holdings, are primary authority because they are parts of official, binding pronouncements. Unlike holdings in majority opinions, however, they are persuasive rather than mandatory. See infra. ↩
When someone asks me if I know a lawyer who could help them with a particular issue, a list of particular lawyers usually run through my mind. Those lawyers are, to me, remarkable. That is, when asked, I remark about who they are or something they have done. This is a foundation for practice success.
The good news is that if you have not already started the process of being remarkable, you can start today. Whatever your role is in solving a problem is, be remarkable in that role.
The bad news is that there are opportunity costs associated with being remarkable. Each step taken toward being remarkable in one area is to the exclusion of being remarkable in all others. When you open the door on being remarkable in one area, infinite doors slam shut in other areas. The risk of spending opportunity costs is often accompanied by fear which results in inaction. There is nothing remarkable about doing nothing.
One answer to this fear is the option of repositioning. Repositioning is an option when you determine that you are not (or are no longer) solving the problem you want to solve. A mid- or late-stage position change is not for the faint of heart. However, it’s a sign that you recognize a need for change in order to survive. Recognizing a need is one thing; acting on it demands spontaneity, audacity, perseverance, flexibility, patience and iron will.
Being remarkable enables differentiation, heightens recognition and leads to a well-defined brand that acts as a beacon for clients seeking particular expertise.
A global pandemic has created upward pressure on the number of unresolved disputes. Downward economic pressure resulting from the full spectrum of the inability to deliver to the inability to pay has created more disputes. Reduction in funding and the inability to hold in-person court sessions has reduced the number of disputes courts have been able to resolve. Attorneys – by and large – feel like the legal services industry is shrinking. It’s not, but it is shifting.
The Decentralized Arbitration and Mediation Network (“Network”) is a proposed global, borderless communication and transaction platform to resolve disputes globally. The Network would facilitate parties dispute resolution on its online platform. Not only is the Network scalable (it is more responsive to changes in the economy, environment, and such) it offers options that are not offered by courts such as
-> who will decide (with options of one person or algorithm, pools of random jurors, pools of experts, a collaboration of the parties, mediation, etc.); -> how long the decision-making process will take; -> party anonymity; -> and whether the dispute and the resolution will be made public or remain private.
Most disputes have always been and still are resolved through private negotiation. One person claims they are owed something from another. A response is made, then a counter-response and this cycle continues until the dispute is resolved. Private judges have resolved disputes in the United States since at least 1866.1 Arbitration as a method of dispute resolution was formalized in the United States by the United States Arbitration Act (commonly referred to as the Federal Arbitration Act) in 1925. Mediation was practiced in Ancient Greece and it could be argued that every war between humans was followed by mediation of some sort.
Parties, including the government,2 may enter into a binding arbitration agreement to resolve a dispute in an alternative, private forum.
Beyond the United States, organizations like the New York Convention facilitate dispute resolution globally.
The Network will allow parties to resolve disputes whether they are local or global and unlike the jurisdiction of the local court, the resolution is enforceable globally. And perhaps more significantly, the Network does not require that parties, even legally created parties like corporations, be represented by attorneys.
Certainly, parties in dispute may rely on attorneys but the attorney role will be more of a consulting role rather than that of an expensive litigation role. Further, parties in dispute may be motivated to look for attorneys who have developed skills in areas that are not traditionally considered part of an attorneys stock and trade – such as crafting claims and defenses for resolution by algorithms rather than people.
Attorneys do not recognize this shift or deny it may be experiencing shrinking revenues. Attorneys, however, who shift and develop new skills to serve their clients may experience a revenue boom.