Lingua Fracas: Legal Translation in the United States and the European Union
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\\jciprod01\productn\B\BIN\34-2\BIN205.txt unknown Seq: 1 2-JUN-16 14:19 LINGUA FRACAS: LEGAL TRANSLATION IN THE UNITED STATES AND THE EUROPEAN UNION DAVID T. GRIFFIN* INTRODUCTION ................................................... 356 R I. WHAT IS TRANSLATION? .................................. 359 R A. Translation Is Not . ................................ 359 R B. A Technical Definition ................................ 361 R C. Common Translation Problems and Their Solutions ... 362 R II. LANGUAGE POLICY IN THE UNITED STATES ............... 364 R A. The Current Legislative Landscape .................... 364 R B. The Court Interpreters Act ............................. 366 R C. Translation in the Courts .............................. 367 R III. LANGUAGE POLICY IN THE EUROPEAN UNION ............ 369 R A. The Evolution of the Multilingualism Policy ........... 370 R B. The Rise of the Lawyer-Linguist ....................... 373 R C. Criticism of the Multilingualism Policy................. 376 R IV. AN AMERICAN LEGAL TRANSLATION POLICY ............. 379 R A. US and EU Translation Policy Compared ............. 379 R B. An American Translation Policy Proposal ............. 379 R CONCLUSION ...................................................... 381 R ABSTRACT Legal translation is a complex process requiring a translator to be fully proficient not just in multiple languages, but also in both transla- tion theory and the legal systems involved in a given text. Despite this, legal translation in the United States is completely unregulated. The European Union, by contrast, is committed to producing an equally authentic version of all of its major documents in each of its twenty- four official languages, and, as a result, has developed a highly spe- cialized system for performing legal translations. In this Note, I examine translation theory, both in general and in the legal context, and look at the United States’ and European Union’s systems as they currently exist. Finally, I consider what the United States can learn from the European Union’s policies, as well as how those policies * Boston University School of Law, J.D. Candidate 2016. The Author would like to thank Professor Anna di Robilant, Professor Daniela Caruso, Alex Moe, and Dana Leib for their invaluable assistance in the development of this Note. 355 \\jciprod01\productn\B\BIN\34-2\BIN205.txt unknown Seq: 2 2-JUN-16 14:19 356 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 34:355 could influence a proposal for an American federal court translator certification program. INTRODUCTION An American lawyer in Madrid is meeting a group of Spanish friends for dinner. As the group is exchanging pleasantries before the meal, one of the Spaniards asks the American, “¿C´omo llegaste?” (“How did you get here?”). The American, who has studied Spanish, is able to appropri- ately respond, “Cog´ı el tren,” (“I took the train”) and the conversation moves to more exciting subjects. Some time later, that same American is meeting with a different group of friends, this time in Mexico City, when the same question is posed. The American gives an identical response, “Cog´ı el tren,” but instead of moving on, the group of friends responds with a mixture of stunned silence and snickering. What changed? What the American did not know is that the Spanish verb “coger,” while completely innocuous in Spain (where it means “to take” or “to catch”), is actually obscene in Mexico. As a Spanish friend once explained to me, “En Espana, ˜ cogimos el autobus; ´ en M´exico, no cogen en p´ublico,” which is to say that, “In Spain, we ‘coger’ the bus; in Mexico, they don’t ‘coger’ in public.” Even in the most informal of settings, working effectively across lan- guages and cultures is no easy task. As far as the American in the pre- ceding example was concerned, she had given the same response both times. There were no grammatical or structural errors in what she said, no problems with subject-verb agreement, and no conjugation errors. Nevertheless, the perfect response in one setting was completely inappro- priate in another nearly identical situation. It should come as no surprise that these language issues are only com- pounded in a legal context. To begin with, it has been suggested that even in a monolingual context, the legal process is inherently one of translation.1 Introducing a foreign language into the mix, then, should only be done with the utmost care. Take a relatively straightforward example: the meaning of the French word “contrat” includes what an American lawyer would consider “conveyances” or “trusts,” (which is to say, concepts not included in the English word “contract”) while exclud- 1 See generally Clark D. Cunningham, Legal Storytelling: A Tale of Two Clients: Thinking About Law As Language, 87 MICH. L. REV. 2459 (1989). See also id. at 2490 (“By thinking of herself as a translator, the lawyer becomes aware of how, in the process of representing a client to others, meaning is created and lost.”); Jim Chen, Law as a Species of Language Acquisition, 73 WASH. U. L. Q. 1263, 1269, 1286 (1995) (explaining that the legal process has been described “as translation, as the rendering of ordinary, nonlegal language into the patois of the legal system,” and that “[l]earning the law is like learning a language”). \\jciprod01\productn\B\BIN\34-2\BIN205.txt unknown Seq: 3 2-JUN-16 14:19 2016] LINGUA FRACAS 357 ing other concepts that are included in “contract.”2 Even in this case, the potential for serious error is obvious. Practically speaking, unfortunately, problems of translation and the law are rarely that simple, nor are they new. To see just how crucial proper translation has always been, consider Foster v. Nielson, an 1829 Supreme Court decision where Chief Justice Marshall was waylaid by an incredibly subtle translation problem.3 In Foster, the Court considered which of two claims to a single tract of land in the newly acquired Florida territory would win out: a grant issued by the King of Spain before the territory was transferred to the United States, or a competing claim issued by the United States after its acquisi- tion of the territory.4 The heart of the matter was Article 8 of the Adams- On´ıs Treaty, which was the instrument that had officially transferred own- ership of Florida from Spain to the United States.5 In the English version of the treaty, the relevant portion of that Article reads: All the grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities, in the said territories ceded by his Majesty to the United States, shall be ratified and con- firmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.6 In his opinion, Marshall focused on the phrase “shall be ratified and confirmed,” and read the Article to mean two things: first, that the land grants in question had to be ratified before they were official, and second, that the Adams-On´ıs Treaty did not by itself ratify them.7 Once he had reached those two conclusions, Marshall reasoned, “[T]he ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.”8 Accordingly, he found that the grant issued by the United States, rather than the one issued by the King of Spain, controlled.9 The problem with the Foster decision stems from the fact that the Court relied solely on the English version of the Treaty. In the Spanish version, Article 8 says that the grants of land “quedaran ´ ratificadas y 2 Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law,39 AM. J. COMP. L. 1, 12-13 (1991). 3 Foster v. Neilson, 27 U.S. 253 (1829). 4 Id. at 299-300. 5 Id. at 314 (finding that “sound construction of the eighth article” is the key to the decision). 6 Treaty of Amity, Settlement, and Limits Between the United States of America and his Catholic Majesty, U.S.-Spain, art. 8, Feb. 22, 1819-Oct. 29, 1820, 8 Stat. L252 [hereinafter Adams-On´ıs]. 7 Foster, 27 U.S. at 314-15. 8 Id. at 315. 9 Id. \\jciprod01\productn\B\BIN\34-2\BIN205.txt unknown Seq: 4 2-JUN-16 14:19 358 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 34:355 reconocidas,” which would be more accurately translated as “will remain ratified and confirmed.”10 In technical terms, Marshall had read a deon- tic modality into the word “shall” that did not exist in the Spanish version of Article 8.11 Fortunately, only four years later, the Court had the opportunity to revisit this exact issue. Just as in Foster, in United States v. Percheman, the Court had to decide the validity of a land grant by the Spanish crown during the period imme- diately prior to United States’ acquisition of Florida.12 This time, how- ever, the Court looked at both versions of the Adams-On´ıs Treaty, and, realizing the distinction between the English and Spanish versions of Article 8, decided to uphold the Spanish grant.13 Again writing for the Court, Justice Marshall addressed the discrepancy with the Foster decision: The treaty was drawn up in the Spanish as well as in the English language. Both are originals, and were unquestionably intended by the parties to be identical. In [Foster] . [t]he Spanish part of the treaty was not then brought to our view, and we then supposed that there was no variance between them. We did not suppose that there was even a formal difference of expression in the same instru- ment. Had this circumstance been known, we believe it would have produced the construction which we now give to the article.14 While that realization came several years too late for Mr.