The Supreme Court has made a federal case out of the difference between translators and interpreters.
The Court Interpreters Act was passed by Congress in 1978 to ensure that litigants who didn’t understand English could still take part in federal court arguments. The law, 28 U.S.C. § 1920(6), allows federal courts to order litigation losers to pay winners for the cost of interpretation.
But interpretation does not include translation, at least in a ruling this week by the Supreme Court, which defined “interpreter” narrowly to mean “one who translates orally from one language to another.”
The ruling came about after Japanese professional baseball player Kouichi Taniguchi sued a owners of a resort after he had fallen through a wooden deck in the Northern Mariana Islands, a US territory.
The 9th Circuit Court of Appeals threw out the lawsuit and awarded costs to the resort owner, Kan Pacific Saipan, Ltd. In its claim for costs, the company argued that translating written documents was the same as “compensation of interpreters,” and reimbursable under the law.
The argument eventually wound its way to the Supreme Court, which rejected the claim for reimbursement earlier this week. In its ruling, the Court stated that “both the ordinary and technical meanings of ‘interpreter,’ as well as the statutory context in which the word is found, lead to the conclusion that § 1920(6) does not apply to translators of written materials.”
The opinion was written by Justice Samuel Alito, who also noted that justices made the decision available in English. “Anybody who wants to read it in another language will have to pay to have it translated, not interpreted,” joked the judge. (LOL).
The lack of provision for reimbursement of translation costs in the law seems a curious omission, since the statute does include costs for preparation of transcripts, printing, even for making copies, in addition to interpretation and other expert expenses.
In a dissenting opinion, Justice Ruth Bader Ginsburg noted that federal judges have long included document translation among the definition of interpretation, in order to put “written words within the grasp of parties, jurors, and judges.” The justice argued that a case can depend as much on translated documents as translated oral statements. It is an acceptable usage of “interpreters,” Ginsburg wrote, “to include translators of written as well as oral speech.”
Barry Olsen, a professor at Monterey Institute, commented on the ruling in IntrepretAmerica. “The drafters of 28 U.S.C. § 1920(6) either intentionally omitted translation or simply overlooked it, focusing on the immediate need to ensure that non-English-speaking parties to a suit could understand and participate in live courtroom proceedings. Given the general confusion surrounding what translators and interpreters do and how often people get the two professions mixed up, the omission comes as no surprise. The best way to fix this oversight would be by amending the code to include translation as well, not by tortured legal arguments that attempt to say translation and interpretation are the same thing, when they indisputably are not.”
Makes sense, but I don’t know about the indisputable part. I’ve got to get Barry on the phone with some of my clients, who share Justice Ginsburg’s reluctance to distinguish between the two, with all attendant confusion. But I expect no more problems now that the Supreme Court has settled this issue once and for all.
I have no idea how this might affect the legal translation business and would welcome comments from those who know better.