Legal Commentary

Richard Ford at Slate's Convictions writes about a new announcement from the LAPD that a departmental investigation into more than 300 accusations of alleged racial profiling found that none could be sustained. Ford is not surprised by the result, because the department defines racial profiling as an officer-initiated confrontation solely because of race; and of course it virtually never will be the case that an officer stops someone solely because of race, even if race (along with other characteristics) is a factor. Ford makes the broader point that everyone in the political debate can agree that racial profiling is wrong because no one agrees on what it means; all sides can oppose what they define as profiling, but we never move forward in resolving the problem because there is no agreement on what, precisely, the problem is.

This is a problem as to most of the hot-button terms of current political debate. But, at least in the political arena, no one ever discusses the importance of definition. President Bush can say with a straight face that "America does not torture" because the administration has defined the word so narrowly as to define it out of existence and no one has gone to the trouble of pinning the president down on what he understands torture to mean. We see the same problem with respect to "judicial activism," a phrase I try to eliminate from my Fed Courts students' vocabularies. Again, everyone sort of agrees that "judges legislating from the bench beyond their assigned role" is a bad thing--but there is no agreement (and I am not sure there ever can be) on when a judge has legislated from the bench, when she has engaged in permissible interpretation, and when she has exercised her power of judicial review.

This is why the most important follow-up question I can ask in class (and the one that certainly most frustrates students) is "what do you mean by X?" Bill Clinton, of course, became infamous for demanding a clarification of the definition of "is." But underneath the ridiculous appearance, he was right. Law and policy simply cannot function when we attempt to work with undefined terms, but the import of definition too often is ignored.