". . .the spoken word is no more than breath."

 In No Time To Spare Ursula LeGuin writes about her fascination with words.  

"When asked to talk about what I do, I've often compared writing with handicrafts - weaving, pot-making, woodworking.  I see my fascination with the word as very like, say the fascination with wood common to carvers, carpenters, cabinetmakers - people who find a fine piece of old chestnut with delight, and study it, and learn the grain of it, and handle it with sensuous pleasure, and consider what's been done with chestnut and what you can do with it, loving the wood itself, the mere material, the stuff of their craft.  

"Woodworkers, potters, weavers engage with real materials, and the beautify of their work is profoundly and splendidly bodily.  Writing is so immaterial, so mental an activity!  In its origin, it's merely artful speech, and the spoken word is no more than breath.  To write or otherwise record the word is to embody it, make it durable, and calligraphy and typesetting are material crafts that achieve great beauty.  I appreciate them.  But in fact they have little more to do with what I o than weaving or pot-making or woodworking does.  It's grand to see one's poem beautifully printed, but the important thing to the poet, or anyhow to this poet, is merely to see it printed, however, wherever - so that readers can read it.  So it can go from mind to mind."

I put my Ukrainian English learner through the opening charges of Jack Smith's indictment this morning. His English isn't good enough to do that alone, but he can grasp the key points of this historic document with the help of a guide. There are words he should know, and I'm trying to connect him to the fact that he is living when we are facing the most important trial in US history. 

We examined words like defendant and prosecutor.  "Claim falsely" made sense when I pulled him back from his wrong turn ("falsely is like waterfall?", no, false is the opposite of true) and after several attempts to explain 'claim' he realized he knew the term from 'baggage claim.'  I started the lesson with a slice of bagel and a gob of raspberry jam, which I spread with a knife.  So I could use the image when we came to 'the Defendant spread lies . . .'  

Smith's indictment is amazingly clear for a legal document.  He (and his associates) knew it had to be understandable to the average American adult.  It's not dumbed down, but rather most of the legal jargon is couched as tangibly as possible with sentences as grammatically simple as possible.  Not the long convoluted sentence encrusted with Latin terms you often see in legal documents.

'The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.' [Link to the indictment]

OK, 'outcome-determinative' is not an everyday term, but 'outcome' of an election is not hard to get. 'Determinative' is clearly related to 'determine' which is fairly common and not to hard to make clear.  I talked to a lawyer friend and asked if perhaps that term 'outcome-determinative' was a translation from the Latin.  He said, "No" but suggested it was probably a legal term of art that has been an important phrase in other cases. That led me to Google and I found this sentence in 

"An "outcome-determinative" test was set forth, the essence of which was that if the determination of an issue would have a decisive influence on the outcome of the case, then that issue was one of "substance." [from a 1965 North Caroline Law Review article]

 While in the indictment sample above says the defendant has the right to publicly say falsely there was 'outcome-determinative' fraud and even to say he actually won, the indictment uses this term eight more times later on to demonstrate that Trump knew his attempts to overturn the election were based on lies about election fraud and lies that he had won.  The term is used in a list of presidential advisors who told him there was no evidence of 'outcome-determinative' fraud, starting with:

"The Defendant's Vice President-who personally stood to gain by remaining in office as part of the Defendant's ticket and whom the Defendant asked to study fraud allegations-told the Defendant that he had seen no evidence of outcome-determinative fraud."

Earlier in a previous LeGuin chapter "Readers' Questions," the author writes that it is relatively easy and interesting to respond to vary specific questions of 'imaginary fact,' like one about her use of the name Sparrowhawk.  

"Is this the New World sparrow hawk, Falco sparverius, or one of the Old World kestrels . . .?"

But that more general questions are much harder to respond to - questions like, 'why do you write?" and the most vexing questions are about meaning.

"Meaning - this is perhaps the common note, the bane I m seeking.  What is the Meaning of this book, this event in the book, this story . . .?  Tell me what it Means.

But that's not my job, honey.  That's your job. . .

"Meaning in art isn't the same as meaning in science.  The meaning of the second law of thermodynamics, so long as the words are understood, isn't changed by who reads it, or when, or where.  The meaning of Huckleberry Finn is."

I imagine law fits in somewhere between fiction and science.  Ideally, much closer to science, but the current Supreme Court majority has moved it much closer to fiction.  And legislation in some Republican dominated states to change how history is taught, or medicine is practiced, are also attempts to create fiction - an alternative reality.  

Terms  like 'outcome-determinative' come to have specific meanings in law, in an attempt to make it more science-like and less interpretive than fiction.  But even science articles are only attempts to capture reality in words.  Sometimes they are successful, over even close.  Other times new discoveries prove the old writings inaccurate.  

For those of you concerned about why I chose the title of this post, I can only say it was the most poetic phrase I found in LeGuin's paragraph on words.  But my brain took this post in other directions.  But it's still the most poetic phrase.  Would you rather I title this Outcome-Determinative?  Even 'outcome-determinative' when spoken is no more than breath.