Law and Language: How Words Mislead Us

22 Pages Posted: 13 Apr 2009 Last revised: 26 Jun 2009

See all articles by Brian Bix

Brian Bix

University of Minnesota Law School


This talk was the Reappointment Lecture for the Frederick W. Thomas Chair in the Interdisciplinary Study of Law and Language at the University of Minnesota. The topic is the way that the words we use in legal doctrinal reasoning can - intentionally and unintentionally - mislead us regarding the proper outcomes of cases and the best development of the law. Connecting to the ideas of the American legal realists Oliver Wendell Holmes, Jr., and Felix Cohen, the talk uses examples from Contract Law (assent to terms in electronic contracting cases, waiver of the failure of conditions), Medical Decision-Making (deciding on behalf of incompetent patients), and Family Law (same-sex marriage, child custody, and alimony) to make general points about how we choose words to make our decisions more persuasive or more comfortable, when we should instead be using more transparent (more honest) terminology, in order better to confront the real underlying moral and policy questions.

Keywords: contract law, family law, assent, substituted judgment, same-sex marriage, alimony, American legal realism, Oliver Wendell Holmes Jr., Felix Cohen

Suggested Citation

Bix, Brian, Law and Language: How Words Mislead Us. Minnesota Legal Studies Research Paper No. 09-22, Available at SSRN: or

Brian Bix (Contact Author)

University of Minnesota Law School ( email )

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