US Supreme Court Decision Reaffirms Definitions of Interpreting and Translation as Separate Disciplines

“Handle them carefully, for words have more power than atom bombs.”

 --Pearl Strachan

Washington policy wonks and K Street lawyers pride themselves on getting the words right. They understand that clear definitions are critical because they are the basis for everything else, but even specialists can get it wrong or unwittingly perpetuate misconceptions. This week, in a 6 to 3 decision the United States Supreme Court helped dispel one of those misconceptions—one so pervasive that it is perpetuated in everyday conversation, the media, and even in our country’s legislation. The simple question at the heart of this misconception:  What’s the difference between a translator and an interpreter?

The simple answer, now upheld by the Supreme Court, is that translators write, and interpreters speak.

When Japanese professional baseball player Kouichi Taniguchi fell through a wooden deck at the Marianas Resort and Spa while on vacation in the Commonwealth of the Northern Mariana Islands, he unwittingly set in motion a chain of legal maneuvers that culminated this week when the Supreme Court handed down its ruling. The question presented before the highest court in the land, however, had nothing to do with construction codes, accident liability or even compensation for pain and suffering. The question presented is whether costs incurred in translating written documents are “compensation of interpreters” for purposes of 28 U.S.C. § 1920(6). [1]

“So what?” may well be your next question. But for translators and interpreters, a cadre of multilingual knowledge workers whose importance continues to grow daily in the globally connected 21^st century, and for those who rely on their services, calling things by their names matters. Clear definitions are important; they help ensure that all parties involved understand each other.

Consider Capitol Hill, home to this nation’s lawmakers. Representatives work in the House, while senators work in the Senate. The work they do is similar, but no senator would take kindly to being called a congressman, and no congressman would try to participate in a vote on the Senate floor, even though they both work in Congress.

A similar division of labor exists between translators and interpreters. Translators work with the written word. They translate international treaties. They translate seized documents from Al Qaeda and other terrorist groups. They have translated Harry Potter into at least 67 other languages.  In contrast, interpreters made the Nuremburg Trials possible by simultaneously interpreting witness testimony into and out of English, French, German and Russian for those present in the courtroom. Interpreters make it possible for our president to pick up the phone and speak with other world leaders. They work in countless emergency rooms across this country interpreting what doctors and patients say in life and death situations. A literary translator is of no more use to an emergency room doctor than a medical interpreter is to a company that wants to publish the English version of Stieg Larsson’s latest mystery novel.  The skills, disciplines, and job descriptions are quite distinct.

In its opinion, 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.”[2]

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. 

Words matter. And the Supreme Court got the words right in this case. When he announced that the ruling was being published by the Court in English, Justice Samuel Alito made it very clear that he understands the difference between translation and interpreting when he said: “Anybody who wants to read it in another language will have to pay to have it translated, not interpreted.”[3]

--Barry Slaughter Olsen

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[1] Brief of Amici Curiae: Interpreting and Translation Professors in Support of Petitioner, p. i http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-1472_petitioner_amcu_professors.authcheckdam.pdf  

[2]  Taniguchi v. Kan Pacific Saipan, Ltd., DBA Marianas Resort and Spa, p. 11. http://www.supremecourt.gov/opinions/11pdf/10-1472.pdf 

[3] Supreme Court says interpretation and translation are different things when it comes to fee, Washington Post, 05/21/2012,  http://www.washingtonpost.com/politics/courts_law/supreme-court-says-interpretation-and-translation-are-different-things-when-it-comes-to-fee/2012/05/21/gIQAXzbOfU_story.html