I. Introduction

In his Frankel Lecture, Professor Richard Brooks offers a masterful interdisciplinary treatment on the topic of address.[1] I marvel at the way he weaves together law, history, linguistics, and game theory towards a novel theory of the role of address in society and in law. His forthcoming manuscript on the topic promises to be a tour de force.

I divide my comments into two parts, the theory of address and the law. In the interest of testing his claims, I first play devil’s advocate and push back on the claim that address is a pervasive and distinctive form of linguistic power. In the interests of sharpening the claims, I offer some skepticism. Second, I discuss how legal rules govern and do not govern address. In the main, American law does not regulate address, but there are exceptions. In particular, the law of equality offers one interesting way the law regulates address indirectly.

II. Theory

Address is a deep topic with a vast literature. It therefore makes sense to focus scholarly attention on the topic isolated from other parts of what might loosely be called the “field” of law and linguistics. Given the many ways that law intersects with linguistics, it would make sense to carve out the topic of address even if there were nothing theoretically distinctive about address.

On my reading of Professor Brooks’s lecture, however, he claims that there is something pervasive and distinctive about the power of address: pervasive, in that it influences us every day, in almost every interaction with another person; distinctive in that address possesses a different and possibly greater power than other parts of language.[2] As Professor Brooks says at one point: “Address publicly conveys expectations of how an encounter will unfold.”[3] And the first law of address refers to “the capacity of address to coordinate actions, beliefs, and expectations, in addition to mediating attitudes, dispositions, and emotions.”[4] Elsewhere, he says: “Absent address society retreats.”[5]

These claims are plausible, but what exactly would it mean to prove them? Words of address unquestionably have power, but I am not sure if address’s power is as pervasive as Professor Brooks claims, nor distinctive from the general power of language. I consider each point in turn.

A. Is the Power of Address Pervasive?

Start with whether the influence of address is pervasive. I think address-free communications are more common than what Professor Brooks implies. Remember, according to Professor Brooks, address is not just the fact that someone speaks in your vicinity even where the context makes clear that you are the intended target of the speech. Address is more narrowly a verbal reference to the person being spoken to, as by a name (Lynn), title (Chair), descriptor (sister), or pronoun (you).[6]

Consider some effective communication without such references. Example one: you buy a meal at McDonald’s by talking to a human (which is no longer guaranteed given that you can order in some places by touchpad).[7] You step to the counter and, before the cashier can ask a question, say, “I’d like a Big Mac, medium fries, small soda.” The cashier says, “Anything else?” and when you say no, she tells you the price, and hands you an empty cup for you to fill at the beverage station. You hand over cash or swipe a credit card and ask, “Can I get ketchup?” She hands you four packets. This is a highly coordinated exchange and requires no address. Even if a term of address were used (“Can I help you?”), the illustration suggests that it is not necessary, not causally significant to the coordination that occurs.

One might reply, but that’s just the fast food business. But when I walk into a hotel, stepping up to the front desk, sometimes the greeting is “How may I be of service?,” a polite question without a term of address. Being tired, I may reply simply, “Checking in,” while handing over my photo ID and credit card. The clerk might say things like: “Are two keys good?,” “The WiFi password is on the keycard envelope,” or “Elevators are down this hall and to the right.” None of these include a term of address. But again, even if they say, “Would you like a bottle of water?,” it is not coordinated any more effectively with the address “you” than if they just point to a bottle and ask, “Care for complimentary water?”

One might reply, but these two examples are just about commercial interactions, which can be more standardized than non-commercial interactions. So, consider some examples of the latter. When people use their phones to talk or text with those on their contact list, each person immediately knows without a term of address who their interlocutor is, and each knows that the other person knows (and so on).[8] So, a conversation can begin without a greeting, such as “What’s up” or “Running late.” Texters can coordinate a meeting without complete sentences, as in “meet in bar at 9 PM?” The address terms are left unstated and implied.

Perhaps it is too easy to come up with non-commercial examples between people who know each other well. So, consider such interactions among strangers. In a law school, one stranger says to another, “Where’s the Dean’s office?” Someone may answer by pointing in one direction and stating: “Down this hall, corridor to the right.” Again, we have coordination without a term of address. And here is a list of ten such address-free exchanges among strangers, all of which are familiar:

“Is this the line for people with tickets?”

“What time is it?”

“When is the bus supposed to arrive?”

“Is it still raining?”

“Is this seat taken?”

“When does the store open?”

“Little help, please”

“Everything OK over there?”

“Hold the elevator door”

“Can I park here?”

These address-free exchanges may be rare, but I’m just not yet convinced that they are.

Admittedly, it may be difficult to avoid the word “you” in longer conversations. Yet, as common as “you” is, I am not sure it proves the pervasive importance of address. Professor Brooks emphasizes how address facilitates coordination by asserting a status hierarchy (where, in a Hawk–Dove game, the higher status person then plays Hawk and the lower status person Dove).[9] But in English, “you” is the least interesting term of address because it implies no such hierarchy. Unlike other languages, the modern-day English “you” is gender neutral, works as both a singular and plural second-person pronoun, and is not contrasted with a more or less polite pronoun (because we have dropped the less formal “thou” and have no more formal alternative).[10] “You” is pervasive, but in modern English, “you” is not a pervasive way of doing what Professor Brooks says address does.

As a result, I am not sure how many utterances would be less effective at coordinating behavior if the term of address “you” were dropped. For example, if the speaker were new to English and kept replacing the word “you” with the gesture of pointing to the addressee, while speaking the rest of the sentence correctly in English, it would not likely impair coordination. Nor would it matter if the speaker substituted a word from another language that the addressee did not know. A native Hindi speaker who says, “Could app tell me the time?” will probably be understood correctly by someone speaking only English as asking, “Could you tell me the time?”

In sum, to properly evaluate the pervasiveness of address, and the pervasiveness of its coordinating function, we probably need some quantitative evidence of the frequency of address in verbal interactions. Specifically, we need some measure of addresses (other than “you”) in situations that require coordination.

B. Is the Power of Address Distinctive?

Even if pervasive, I’m not sure that the power of address is distinctive. The same game theory that reveals the power of address to influence behavior—by providing a focal point in a situation requiring coordination—also reveals a general power of language. So, address may be merely an ordinary and straightforward case of the power of words, not a special case. Consider several points.

First, Professor Brooks makes the perfectly valid point that it is difficult to ignore being addressed.[11] If someone calls your name, it is quite challenging to resist turning towards them and at least contemplating a reply. The same is true if someone speaks to you using a term of address other than your name, a title (professor), descriptor (cousin), or pronoun (you). Imagine sitting alone at a café table for four people when someone steps up and asks, “Would you mind if I borrowed this chair?” It would be difficult not to look up at the speaker and difficult not to reply.

Yet notice that it is also difficult to resist a response when someone speaks to you without using a term of address. If the question were instead, “May I borrow this chair?,” it contains no term of address, but it remains equally difficult not to turn to the questioner and equally difficult not to reply. In a waiting room, if someone catches your eye, it makes no difference if they ask, “Would you mind if I sat here?”—a question with an address—or “Is this seat taken?”—a question without an address. Either way, it is still extraordinarily rude to ignore them and give no reply. There is a social norm requiring that you answer people who speak to you, and it can be invoked with or without a term of address.[12]

Indeed, the power of non-address terms follows directly from the game theory Professor Brooks uses to explain the power of address. He uses the game theory of coordination, something we have in common, as I have offered a coordination theory to explain one way that law has an expressive influence on behavior.[13] We both informally use the Hawk–Dove game to illustrate the situation in which language has this coordinating power.[14]

In some situations, two parties want to coordinate their behavior to avoid what they mutually regard as the worst possible outcome. One can informally model such situations as Hawk–Dove games, where the worst outcome is where both players select the aggressive Hawk strategy, insisting on their preferred outcome, but the best outcome for a player is to play Hawk against the other’s passive, acquiescent strategy of Dove.[15] Imagine that two people seek to use the last seat on a bus, in a waiting room, or in a café. Each would prefer that the other cede to them the use of the seat (represented by the outcome where the person in question plays Hawk and the other person plays Dove). But each regards the worst outcome to be where both aggressively insist on taking the seat (Hawk–Hawk) because mutual insistence creates an embarrassing “scene” with raised voices and blood pressure or, worse, violence. If both try to cede the seat to the other (Dove–Dove), then the seat goes unclaimed, which is also not ideal (leading to another round of the interaction or perhaps a third person taking the seat). What the individuals want is to coordinate seamlessly on the outcome by having one cede the seat to the other. But how?

Any salient asymmetry in the players could potentially help them do that and one example of an asymmetry is a status difference. Indeed, if the situation recurs, then a social norm may arise in which players of one status always defer to players of the other status. Perhaps the social norm for chair priority is that men defer to women, although that would not help when two people of the same apparent gender claim the chair. Perhaps the social norm is that the young defer to the old, although that would not help when two people of the same apparent age claim the chair. Professor Brooks proposes that the players can use terms of address to create or recognize a social hierarchy in the situation, after which they can coordinate by having the lower status person defer to the higher status person.[16]

The problem here is that, when language does work for coordination, it is not clear that address language is distinctively better than other language. All that is required is some asymmetry that implies one is more entitled than the other to the disputed chair. Perhaps one person points out the fact that they arrived at the chair first, even if only by a short moment before the other. Invoking the first-in-time asymmetry may resolve the matter, rather than address. Going back to our age example, perhaps one person claims to be the older of the two, and the conversation leads them to agree to who is older and the younger person then defers. There are various ways that relative need could supply the asymmetry: the healthy person defers to the person who uses a cane or claims a knee injury, the person in the café drinking coffee defers to the person who is eating a meal, or the person living in the same block defers to the person who walked two miles to the café.

Non-address language is also effective when we have a situation with more than two people. Consider a tangle of people waiting to board a plane. Someone shows up and says to the others “Where does the line for boarding group two begin?” Several people point to the same spot and say “Here” or “There.” If the newcomer gets in the line there, the non-address language has worked to coordinate. Or perhaps the new person doesn’t even ask and just steps into what others regard as the middle of a line. One of them says, “The line starts back there” and others nod. The person who discovers themselves to be a line-breaker may move to the back of the line to avoid an unpleasant confrontation. The group does not need a term of address to harness the power of language to coordinate.

In the same setting, consider a norm in which the young defer to the old. If the line has no one who appears to be over seventy years old when someone looking over seventy shows up, then someone might well say “Make way, make way,” and everyone might turn to look at what’s happening and then permit the older person to the front of the line. Again, there is no need for a term of address. Of course, they might use a term of address; they might say, “Make way for the elder.” But I am not convinced that using the address term is necessary to coordinate around age most of the time.

Moreover, when a risk-averse person wants to avoid the Hawk–Hawk outcome with certainty, they can always do so by signaling the intent to play the Dove strategy. Again, address is not necessary. One can show deference with deferential or sycophantic words and gestures, “Such an honor for me” and a bow, for example. Or one could just directly say “I am not entitled” to whatever benefit is in dispute.

I have been using mundane examples to show that non-address language can coordinate. But consider also the coordinating power of some legal non-address words. One is the word “right,” as in the right to free speech. A group of people is more likely to gain social power if they act collectively, and a social movement leader will offer individuals in the group a way to coordinate their behavior, to pull in the same direction. Rights language might be helpful for telling people exactly what they should insist upon, stand up for, the circumstances under which they should play the Hawk strategy, not the Dove.[17] But the powerful term “right” is not a term of address.

Or consider the legal term, “sexual harassment.” A university administrator Mary Rowe first used the term in print in 1973.[18] It gained prominence when Professor Catharine MacKinnon published her book, Sexual Harassment of Working Women, in 1979.[19] To sense the power of the term, imagine what it was like before the term took hold.

Was there a short and pithy way for a woman to complain to her supervisor about a co-worker who was engaged in behavior we would now call sexual harassment, or to warn other women about a harasser? I think not. She could describe in detail the offensive behavior, but it is often more powerful if you can convey an idea quickly and efficiently. As some describe it, naming is helpful to the legal and moral process of blaming.[20] She could tersely say that the behavior was rude, offensive, and/or intimidating. But a lot of things are rude, offensive, and intimidating that are not sexual harassment.[21] The term “sexual harassment” allows an efficient communication of a pattern of behavior that can differ widely in detail, but still have in common the same offensive features, prototypically by a man directed at women and creating a hostile working environment for women. That term can improve the way women coordinate in complaining about, taking private action against, or warning of sexual harassers. In short, game theory suggests that words can matter to behavior and not just words of address.

Game theory is hardly alone in this respect. There are more established ways of talking about the power of language. Consider one brief foray into linguistics. Linguistic relativity is the claim that the language we speak channels our understanding of the world in a certain way.[22] There is a long history of this claim, the strong and untenable form of which asserts that language determines thought.[23] But weaker versions of the claim remain possible. In any event, rather than attempt to untangle the dense theory of linguistic relativity, let me just mention some interesting empirical research. Some older articles investigate whether the set of color terms in a language affect the ability of language speaker to distinguish and remember specific colors.[24] Other papers consider whether the speakers of languages that impose gender on all nouns, such as French and Italian, engage in more strongly gendered behavior than those speaking languages that do not gender nouns.[25]

More recently, economists have focused on the fact that in some languages there is a sharper grammatical difference in the present and future than in others.[26] For example, in German you can properly say, “It rains tomorrow,” where English grammar commands the future tense, “It will rain tomorrow.”[27] And it turns out that people who speak languages that do not force the distinction in present and future tend systemically to be more future-oriented than those speaking languages that do force the distinction. Compared to the latter, the former save more, buy more life insurance, and delay gratification more.[28] Experimental research now provides some evidence that the relationship is causal.[29] It is as if the future matters more when grammar does not sharply distinguish it from the present.

One might imagine a similar test for words of address. Professor Brooks discusses, for example, how some languages like French force speakers to choose between different forms of the second person singular pronoun (in English, “you”), one more formal version showing greater respect, and the other more informal showing less respect.[30] There is a tendency to use the formal version for those of higher social standing and to use the informal version for those of lower social standing. Perhaps one might test the hypothesis that languages that constantly force speakers to make status-conscious decisions about the different versions of “you” lead people to act differently than languages that do not force such choices. Presumably, the hypothesized behavioral difference would be that the more status-conscious language would lead to more inegalitarian behavior, involving better treatment of those deserving of the formal “you” compared to those deserving of the informal “you.”

I have no empirical basis for thinking this hypothesis is true. My point is simply that, even if it were true, it would make terms of address just like other parts of language for which some evidence finds a behavioral effect. It would still not be clear there is something distinctively powerful about address.

Finally, while I have been arguing that terms of address are not distinctively necessary for coordination, I also have concerns about their distinctive sufficiency. One obvious concern is that terms of address would seem to resolve a Hawk–Dove game only if they are unequal. But in a great many conversations, the address terms are equal. Both parties might refer to the other by their first names, or by their last names without a title, or by their last names with the same title, or titles of equivalent social rank.

Another problem is that language is itself a game. Perhaps each party symmetrically attempts to use language, including address, to claim the higher status, which might involve each calling the other by a disparaging title of address. Player A calls Player B “mac,” and Player B calls Player A “bub.” Perhaps it escalates from there. In a sense, before solving the coordination game over who gets to sit in the last seat, they play a coordination game over who disparages the other more effectively. But this game need have no end as each proceeds to mimic the insulting address (or other language) the other uses. Of course, there may be some other social constraint in place, pre-existing the address game, and that may give one person the superior status. Perhaps one is wearing a stylish suit, and the other is wearing dated and shabby casual clothing. Dress could signal status based on wealth, style, or who a police officer would believe if one were summoned. But if dress (or any other pre-existing status marker) creates the status difference that facilitates coordination, it is not clear what address adds.

Even when the individuals use different terms of address and the ranking of them is nominally clear, there is the problem of tone and context. Professor Brooks discusses, for example, how a title that usually carries insulting racial meanings—boy—can be used between intimates in a genuinely affectionate way that signals equality.[31] The reverse is also true. Some high-status titles are used in a sarcastic and subversive way. One can deploy the title “professor” as one deploys the nicknames “Webster” or “Poindexter”—to mock the target for being nerdy or too concerned with book knowledge. Even when the person actually is a professor or doctor, insisting on using the title in an otherwise egalitarian and informal social situation is a kind of insult, implying that the target inappropriately insists on having their professional status recognized. As titles can carry the opposite of the usual meaning, their ambiguity renders them less than fully reliable for resolving coordination problems.

In short, words have power, not just words of address. So, as I said at the start, the topic of address is certainly rich and complex enough for a separate treatment of it, but I am not sure if there is, with any frequency, a distinctive power from address.

III. Law

Now I turn to law. The topic of titles brings me, oddly enough, to the seventeenth-century political theorist Thomas Hobbes. In his great work, Leviathan, Hobbes famously justified the existence of the state by stressing the violent chaos that would exist in its absence.[32] He therefore paid enormous attention to the causes of conflict and violence. And one of his claims is so relevant that I quote the passage:

[C]onsidering what values men are naturally apt to set upon themselves; what respect they look for from others; and how little they value other men; from whence continually arise amongst them, Emulation, Quarrells, Factions, and at last Warre . . . It is necessary that there be Lawes of Honour, and a publique rate of the worth of such men . . . . To the Soveraign therefore it belongeth also to give titles of Honour; and to appoint what Order of place, and dignity, each man shall hold; and what signes of respect, in publique or private meetings, they shall give to one another.[33]

What is so interesting about this passage is how perfectly it fails to describe the American system of titles. Not only does American law not declare that private actors must give certain titles of respect to other private actors, but the law mostly moves in the opposite direction.

There are two aspects of federal constitutional law that bear on this issue. Section 9 of Article 1 states: “No Title of Nobility shall be granted by the United States: And no Person holding any Office . . . under them, shall, without the Consent of the Congress, accept . . . any . . . Title, of any kind whatever, from any King, Prince, or foreign State.”[34] Section 10 provides a parallel limitation on states: “No State shall . . . grant any Title of Nobility.”[35] The framers wanted to avoid recreating the European aristocracy in the United States, so they emphatically rejected the suggestion of Hobbes. Alexander Hamilton wrote of the provision:

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.[36]

Indeed, the Titles of Nobility Clauses gestures at the idea of equality that would later be enshrined in the Equal Protection Clause, a subject I return to below.[37]

The Titles of Nobility Clauses might still permit Congress to regulate other kinds of titles, not of nobility, by regulating which people must be called Mr. or Ms. or titles like Doctor or Professor. But there is no such general regulation.[38] Part of the explanation is a second element of constitutional law, the First Amendment. Our doctrine of free speech protects a great deal of rude, intemperate, and disrespectful speech.[39] All of President Donald Trump’s insulting nicknames for his political adversaries are obviously protected speech, even when he denies someone their usual title.[40]

Against this general backdrop, there are exceptions. Courts are one. Professor Brooks offers some fascinating cases of judges and lawyers arguing about how lawyers address witnesses in court.[41] And, of course, in courtroom appearances, lawyers tend to grant judges the respectful title of “Judge [last name]” or “Your honor.”[42] The world of the courtroom, with the judge regulating titles of address, is more like what Hobbes had in mind for all of society.

So is the military world, where it can be criminal insubordination not to address a superior officer with the correct title. In one Vietnam War era case, United States v. Bartee, a Marine Corps private said to an officer, “Man, I ain’t getting no haircut.”[43] The Navy Court of Military Review upheld a charge of disrespect to a superior officer, reasoning that “the word ‘man’ . . . when uttered in the context of a refusal to carry out an order . . . stands as contemptuous language and serves to ‘detract from the respect due to the authority and person of a superior commissioned officer.’”[44] Another case, United States v. Cheeks, provides an illuminating contrast.[45] A sergeant had refused to address the defendant, a private, by his name, but instead repeatedly used a vulgar epithet. The court dismissed a charge against the defendant for directing disrespectful and contemptuous speech at the sergeant, reasoning that the sergeant “forfeited the special privilege which Article 91 confers upon a noncommissioned officer to be treated with respect in the execution of his office.”[46]

In sum, the courtroom and the military preserve a strong hierarchical structure by tightly regulating the use of titles, much as Hobbes proposed.[47] But for civilians outside of courts, the law is mostly laissez-faire about address. Generally speaking, one is legally free to deny the respectful title to a doctor, professor, religious leader, or senator.[48] Outside of court, at the very least for people not appearing before the judge in ongoing proceedings, there is no legal obligation to address a judge with the title “judge.” And civilians need not give the sergeant or general their title. In all of these cases, one may not only deny the title and use a first name without permission, but one may use a jocular or disparaging nickname. You can call them and anyone “bro,” “dude,” “love,” “hun,” or “bub,” or by the first letter of their last name, even when they ask you not to.

Conversely, you can give titles to people who have not conventionally earned them, such as by calling a friend who excels at baseball, backgammon, or bankruptcy law by the sobriquet Doctor B. The law generally does not take notice of granting or denying titles or names in speech, nor in using them in non-standard ways.[49]

Of course, it is always possible that mistitling constitutes evidence of some fact that proves a violation of a legal rule not directly about address. In this way, many legal rules do have some indirect effect on address. For example, it might constitute the tort of defamation if mistitling implied a statement of fact, for example, if refusing to use the title Doctor impliedly states that the person is not a licensed physician when they actually are.[50] It would hardly be the case that every failure to use the term Doctor implies that fact because other interpretations are possible. It might be that the speaker knows the doctor well enough to use their first name without a title, that the speaker objects to such formality in the situation, or that the speaker is insulting the doctor without making any factual claim. But with the right facts, the clear implication of mistitling will be the claim that the person is not licensed to practice medicine, which may be a defamatory statement.

As another indirect type of regulation, if someone lacks an M.D., their using the title “Dr.” might constitute medical fraud.[51] Here, the question is whether the title implies that one is licensed to practice medicine. Again, whether that inference follows will depend on many factual circumstances. The title might imply that someone has a Ph.D., or that someone once earned an M.D. and was a licensed doctor but is now retired and no longer licensed. Similarly, some state professional rules counsel against a former judge continuing to use the title “judge” after returning to practice law because it “may imply the ability to influence government officials or agencies—especially courts.”[52]

The most interesting indirect example, I think, is where American law does something that Hobbes would never have imagined. Rather than specify the different levels of honor each person should receive, we have laws of equality. Equal protection doctrine demands heightened scrutiny of government classifications of race, sex, religion, and national origin.[53] Federal, state, and local laws prohibit discrimination in jobs, housing, education, and public accommodations.[54] So, while there is no statutory law directly regulating address, I want to suggest that it is indirectly—and importantly—regulated by equality law.

To begin, reconsider Professor Brooks’s exploration of the address term, “boy,” in the case of Ash v. Tyson Foods.[55] There, the Eleventh Circuit ruled that the term “boy” spoken on multiple occasions by a white supervisor toward the Black plaintiffs, both adult men, was not evidence of a discriminatory disposition.[56] Appropriately and unanimously, the Supreme Court reversed, finding that the word in context could serve as sufficient evidence of racial animus.[57] An even more obvious case comes from 1997, when a Michigan court reversed a summary judgment for a defendant in a job discrimination case because the plaintiff had direct evidence of discriminatory animus.[58] The plaintiff, upon leaving an interview, overheard one interviewer say to the other that he should not have allowed the plaintiff to address him by his first name because the plaintiff was Black.[59]

For a similar result involving gender discrimination, consider the Tenth Circuit opinion, Plotke v. White.[60] Doctor Jane Plotke sued the Army for terminating her job as a historian at Ft. Leavenworth.[61] The district court granted summary judgment, and the Tenth Circuit reversed.[62] Among the facts supporting her claim, the Tenth Circuit noted this disparity in address: “Many of her male colleagues, at least one of whom had not achieved the same level of education as she had, referred to her as Jane while referring to other male staff members with their academic titles of ‘Dr.’”[63]

One can imagine generally that it is a bad fact for a defendant in any discrimination lawsuit that agents of the defendant employed titles of respect or of disrespect differently depending on race or sex, or some other impermissible factor. Beyond that, of course, some forms of gendered mistitling—misgendering—may intrinsically constitute gender discrimination.[64] So, while American law does not directly require or forbid the private use of titles, nondiscrimination law is always sensitive to unequal address and creates legal incentives to make address equal. Not every part of social or economic life is regulated by nondiscrimination law, but much of it is, and where it applies, we might say that the law of equality is the American law of address.

IV. Conclusion

Professor Brooks calls our attention to a social practice of enormous significance: the addresses we use to refer to our interlocutors. The practice of address and the social norms that support the practice intersect with law in countless interesting ways. In the courtroom and military, the law compels the use of certain titles. More indirectly, the practice of address can provide evidence of defamation, fraud, or discrimination. I am less certain if address is pervasively involved in or necessary to allowing people to coordinate their behavior (as in a Hawk–Dove game), when compared to other linguistic methods of coordination. But there is no doubt that address sometimes works exactly this way, nor that Professor Brooks is shining a powerful light on an otherwise neglected topic.

  1. See generally Richard R.W. Brooks, Draft of Address at the University of Houston Law Center’s 29th Annual Frankel Lecture: Addressing Americans (Nov. 15, 2024) (on file with author) [hereinafter Brooks, Draft of Address at Annual Frankel Lecture].

  2. See id. at 1, 10–11.

  3. Richard R.W. Brooks, Outline of Address at the University of Houston Law Center’s 29th Annual Frankel Lecture: Addressing Americans i–ii (Aug. 7, 2024) (on file with author).

  4. Richard R.W. Brooks, Addressing Americans 6 (Aug. 7, 2024) (unpublished manuscript) (on file with author) [hereinafter Brooks, Addressing Americans].

  5. Brooks, Draft of Address at Annual Frankel Lecture, supra note 1, at 1.

  6. Id. at 11.

  7. Julia Horowitz, McDonald’s: More Touch Screens and Table Service Just the Beginning of Change, CNN Bus., https://www.cnn.com/2016/11/17/news/mcdonalds-steve-easterbrook/index.html [https://perma.cc/N736-YGVK] (last updated Nov. 17, 2016, 9:41 PM).

  8. Which is to say, they have “common knowledge” of who is communicating with them. See, e.g., Robin P. Cubitt & Robert Sugden, Common Knowledge, Salience and Convention: A Reconstruction of David Lewis’ Game Theory, 19 Econ. & Phil. 175, 184 (2003).

  9. See Brooks, Draft of Address at Annual Frankel Lecture, supra note 1, at 21.

  10. See Why We Use “You” for Both Formal and Informal Situations in English?, Medium (Jan. 17, 2024), https://medium.com/@1kg/why-we-use-you-for-both-formal-and-informal-situations-in-english-d83f299660eb [https://perma.cc/K72A-3J7Y].

  11. See Brooks, Addressing Americans, supra note 4, at 16; Helen Norton, Contesting “Address”: Conflicts Over the Words We Use to Address and Refer to Each Other, 62 Hous. L. Rev. 799, 803 (2025).

  12. See Richard A. Posner, Frontiers of Legal Theory 288 (2001) (“A social norm . . . is a rule that is neither promulgated by an official source, such as a court or legislature, nor enforced by threat of legal sanctions, yet is regularly complied with (otherwise it wouldn’t be a rule). The rules of etiquette, including norms of proper dress and table manners . . . are . . . examples of norms.” (footnote omitted)). See generally Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991); Eric A. Posner, Law and Social Norms (2000); Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev. 1643 (1996); Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338 (1997).

  13. See Richard H. McAdams, The Expressive Powers of Law: Theories and Limits 22 (2015).

  14. Id. at 37, 84–85. In the terminology of game theory, Professor Brooks and I focus on the power of “cheap talk.” Brooks, Draft of Address at Annual Frankel Lecture, supra note 1, at 21–23; see also Edward B. Rock & Daniel L. Rubinfeld, Common Ownership and Coordinated Effects, 83 Antitrust L.J. 201, 219 (2020) (“Economists define ‘cheap talk’ as a communication or message that is costless to make . . . . If the message sender has an incentive to lie and bears no risk of costly punishment, the recipients may ignore such messages.”). Under certain circumstances, however, as where coordination is needed, even cheap talk affects behavior. Id. at 219–20.

  15. McAdams, supra note 13, at 36–37.

  16. See Brooks, Draft of Address at Annual Frankel Lecture, supra note 1, at 24–25.

  17. See, e.g., Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization 234–38 (1994); Dennis Chong, Collective Action and the Civil Rights Movement 103–40 (1991).

  18. See Ferdi Kamberi & Besim Gollopeni, The Phenomenon of Sexual Harassment at the Workplace in Republic of Kosovo, 3 Int’l Rev. Soc. Scis. 580, 581 (2015) (reporting on Mary Rowe’s use of the term in a document titled “Saturn Rings”).

  19. span class=“smallcaps”>. See generally Thomas I. Emerson, Foreword to Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination, at vii (1979).

  20. See, e.g., William L.F. Felstiner, Richard Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming . . . , 15 Law & Soc’y Rev. 631, 635 (1980–81); Austin Sarat, Exploring the Hidden Domains of Civil Justice: ‘Naming, Blaming, and Claiming’ in Popular Culture, 50 DePaul L. Rev. 425, 443 (2000).

  21. For example, imagine a co-worker says he will “punch out any [expletive deleted] who roots for” the wrong sports team.

  22. Barbara C. Scholz, Francis Jeffry Pelletier, Geoffrey K. Pullum & Ryan Nefdt, Whorfianism, Stan. Encyclopedia of Phil., https://plato.stanford.edu/entries/linguistics/whorfianism.html [https://perma.cc/5VAF-EQMY] (last visited Dec. 28, 2024).

  23. Id.; Astghik Mavisakalyan & Clas Weber, Linguistic Structures and Economic Outcomes, 32 J. Econ. Survs. 916, 919–20 (2018).

  24. See, e.g., Jonathan Winawer et al., Russian Blues Reveal Effects of Language on Color Discrimination, 104 Proc. Nat’l Acad. Scis. 7780, 7781 (2007); Panos Athanasopoulos, Cognitive Representation of Colour in Bilinguals: The Case of Greek Blues, 12 Bilingualism 83, 93 (2009); Debi Roberson et al., Color Categories: Evidence for the Cultural Relativity Hypothesis, 50 Cognitive Psych. 378, 403 (2005).

  25. See, e.g., Lewis Davis, Astghik Mavisakalyan & Clas Weber, Gendered Language and Gendered Violence, 52 J. Compar. Econ. 755, 766 (2024); Lewis Davis & Megan Reynolds, Gendered Language and the Educational Gender Gap, 168 Econ. Letters 46, 48 (2018); Lucas van der Velde, Joanna Tyrowicz & Joanna Siwinska, Language and (the Estimates of) the Gender Wage Gap, 136 Econ. Letters 165, 170 (2015); Victor Gay et al., Decomposing Culture: An Analysis of Gender, Language, and Labor Supply in the Household, 16 Rev. Econ. Household 879, 897 (2018); Giulia Adriana Pennisi, Legislative Drafting and Gender: Some Linguistic Insights into English and Italian, 10 Theory & Prac. Legisl. 305, 309–11 (2022). For reviews of the literature, see Victor Ginsburgh & Shlomo Weber, The Economics of Language, 58 J. Econ. Literature 348, 359 (2020); Mavisakalyan & Weber, supra note 23, at 916, 922–24.

  26. See M. Keith Chen, The Effect of Language on Economic Behavior: Evidence from Savings Rates, Health Behaviors, and Retirement Assets, 103 Am. Econ. Rev. 690, 693–94 (2013); see also Seán G. Roberts, James Winters & Keith Chen, Future Tense and Economic Decisions: Controlling for Cultural Evolution, PLoS ONE, July 17, 2015, at 1, 4–5.

  27. See Chen, supra note 26, at 690.

  28. See id. at 692, 714; Weijun Yin, Cuixia Chen & Bing Liu, Linguistic-Induced Life Insurance Consumption, 82 Econ. Analysis & Pol’y 1083, 1093 (2024); see also Zeng Lian, Donald Lien & Jiawei Sun, The Role of Future Time Reference in Cross-Listing Decisions: Cross-Country Evidence, J. Behav. & Experimental Econ., Oct. 2024, at 1, 2, 8 (2024).

  29. See Ian Ayres, Tamar Kricheli Katz & Tali Regev, Languages and Future-Oriented Economic Behavior—Experimental Evidence for Causal Effects, PNAS, Feb. 14, 2023, at 1, 2.

  30. That was once true in English when we said “thee” and “thou” as an alternative to “you,” but now we only use “you.” Brooks, Draft of Address at Annual Frankel Lecture, supra note 1, at 17.

  31. His examples are “good old boy” or “that’s my boy.” Id. at 4–6 & 31 n.20. Here’s another example: Hollywood film credits use the terms “Best Boy”—specifically “Best Boy Electric” and “Best Boy Grip”—to refer to crew positions on film sets. The best boy electrical is the chief assistant to the “gaffer” and the best boy grip is the assistant to the “key grip.” There are usually a crew of workers below the best boy level, so the term shows an assistant status, but not a particularly low status. See Eve Light Honthaner, The Complete Film Production Handbook 471 (4th ed. 2010); Michael Maher, Grips, Gaffers, and Best Boys: The Grip and Electric Departments, Beat, https://www.premiumbeat.com/blog/grips-gaffer-best-boys-grip-electric-departments/ [https://perma.cc/PL3M-UZZL] (last updated Aug. 20, 2015).

  32. Thomas Hobbes, Leviathan 230–31 (Richard Tuck ed., 1991).

  33. span class=“smallcaps”>. Id. at 126.

  34. U.S. Const. art. I, § 9, cl. 8.

  35. U.S. Const. art. I, § 10, cl. 1.

  36. The Federalist No. 84, at 575–81 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  37. No Congress, President, or State has attempted to grant formal titles of nobility, so there is nearly no case law on it. But Supreme Court Justices have invoked its idea of equality in other contexts. See Zobel v. Williams, 457 U.S. 55, 69 & n.3 (1982) (Brennan, J., concurring) (“[The Equal Protection] Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.”) (“The American aversion to aristocracy developed long before the Fourteenth Amendment . . . .” (citing the Title of Nobility Clause)); Mathews v. Lucas, 427 U.S. 495, 520 & n.3 (1976) (Stevens, J., dissenting) (stating that legal burdens on those born “illegitimate” are unconstitutional as a matter of equal protection doctrine) (“[T]he rationale behind the prohibition against the grant of any title of nobility by the United States, equally would prohibit the United States from attaching any badge of ignobility to a citizen at birth.” (citation omitted)); Fullilove v. Klutznick, 448 U.S. 448, 533 (1980) (Stevens, J., dissenting) (“Our historic aversion to titles of nobility is only one aspect of our commitment to the proposition that the sovereign has a fundamental duty to govern impartially.” (footnote omitted)). For novel arguments to read these anti-nobility clauses expansively, see Richard Delgado, Inequality “From the Top”: Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice, 32 UCLA L. Rev. 100, 115–17 (1984); Carlton F.W. Larson, Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legal Preferences in Public School Admissions, 84 Wash. U. L. Rev. 1375, 1439–40 (2006). Regarding the failed effort to strengthen the titles-of-nobility clauses by constitutional amendment, see Jol A. Silversmith, The “Missing Thirteenth Amendment”: Constitutional Nonsense and Titles of Nobility, 8 S. Cal. Interdisc. L.J. 577, 582–83, 610 (1999); Gideon M. Hart, The “Original” Thirteenth Amendment: The Misunderstood Titles of Nobility Amendment, 94 Marq. L. Rev. 311, 371 (2010).

  38. It is always difficult to demonstrate the absence of law, especially when almost no one would ever test the claim in court by asserting that such a legal rule exists, given the First Amendment. See infra note 39. Despite reasonable efforts, I have been unable to locate any law refuting the textual claim, nor does Professor Brooks cite any. Instead, his first law of address involves a statement about the fundamental social practice of address, not a statutory or common law rule. See Brooks, Draft of Address for Annual Frankel Lecture, supra note 1, at 1. Note also that books discussing the social practice of address are etiquette books, not law books. See, e.g., Pamela Eyring, Foreword to Robert Hickey, Honor & Respect: The Official Guide to Names, Titles, and Forms of Address, at xiii, xiii (3d ed. 2023) (“One of the foundations of protocol – along with precedence, seating, gifting, VIP interactions, ceremonies, and flags – is a form of address.”).

  39. See Matal v. Tam, 582 U.S. 218, 223, 243 (2017) (invalidating exclusion of trademarks that “disparage . . . or bring . . . into contemp[t] or disrepute” any persons, including racial groups, because “[g]iving offense is a viewpoint” and viewpoints are protected by the First Amendment); Snyder v. Phelps, 562 U.S. 443, 458 (2011) (invalidating tort liability for offensive funeral protest because “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” (quoting Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995)) (“[I]n public debate [we] must tolerate insulting, and even outrageous, speech.” (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 47–48, 55–57 (1988) (invalidating tort liability for an intensely insulting caricature of religious leader Jerry Falwell because “[a]n ‘outrageousness’ standard . . . runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience”).

  40. See James Liddell, Trump’s Nine Weirdest Nicknames for His Political Rivals, from Wacky Jacky to Tampon Tim, Independent (Sept. 28, 2024, 10:07 AM), https://www.the-independent.com/news/world/americas/us-politics/donald-trump-nicknames-harris-biden-walz-b2616334.html [https://perma.cc/6Z2Q-LEFU] (mentioning Kamabla (Harris), Joe Hiden’ (Biden), Crooked Hillary (Clinton), Ron DeSanctimonious (DeSantis), Tampon Tim (Walz), Wacky Jacky (Rosen), Governor Newscum (Newsom), and Birdbrain (Haley)). For the constitutional protection of insulting speech, see supra note 39.

  41. Brooks, Addressing Americans, supra note 4, at 61–62, 64–67; see also Adams v. Durrani, 183 N.E.3d 560, 568 (Ohio Ct. App. 2022) (recognizing prejudice of trial court’s statement to jury that he would not call defendant’s expert by the title “Doctor” because he was no longer licensed in the state, although the issue was not preserved); cf. Graves v. Standard Ins. Co., No. 14-CV-558-DJH, 2016 WL 3512032, at *1, *6 (W.D. Ky. June 15, 2016) (finding, in a discovery dispute, that an attorney “deliberately intended to provoke Dr. Semble from the outset of the deposition. No legitimate reason existed for . . . refus[ing] to extend to the doctor the respect of referring to him by his professional title”).

  42. The surprise here is how little actual law seems to compel this form of address, as opposed to a norm strongly enforced by the self-interest of lawyers wishing to avoid alienating judges. Illustrative of my failed search for local rules on the subject, the United States District Court for the Central District of California devotes a webpage to Tips on Practice in Federal Court, where it states: “Address the judge only as ‘your honor’ when addressing the judge in the courtroom.” Tips on Practice in Federal Court, U.S. Dist. Ct. Cent. Dist. of Cal., https://www.cacd.uscourts.gov/attorneys/assistance [https://perma.cc/22MW-Z4WD] (last visited Jan. 8, 2025). In contrast to this practice “tip,” however, the local rules of civil and criminal procedure do not mention how to address judges. See generally C.D. Cal. R.; C.D. Cal. Crim. R. One might think that professional ethics requires respectful address, but the ABA Model Rules address the issue only at a high level of abstraction. See Model Rules of Pro. Conduct pmbl. para. 5 (Am. Bar Ass’n 2025) (“A lawyer should demonstrate respect for the legal system and for those who serve it, including judges . . . .”); Id. at para. 9 (referring to the lawyer’s need to “maintain[] a professional, courteous and civil attitude toward all persons involved in the legal system”). No doubt, the judge’s contempt power stands ready to sanction lawyers who seriously disrespect the court, but such cases appear to be rare, given my failed efforts to locate contempt cases based on the specific failure to address the judge respectfully.

  43. United States v. Bartee, 50 C.M.R. 51, 57 (1974); Vietnam War, Britannica, https://www.britannica.com/event/Vietnam-War [https://perma.cc/39GN-HS6M] (last visited Jan. 20, 2025).

  44. Bartee, 50 C.M.R. at 57.

  45. United States v. Cheeks, 43 C.M.R. 1013, 1016 (1971).

  46. Id. at 1015–16.

  47. Hobbes, supra note 32, at 120–21.

  48. See supra note 38.

  49. Cf. Saxena v. Hall, No. 1:22-cv-03060-DDD-SBP, 2023 WL 8653649, at *1 (D. Colo. Oct. 27, 2023) (rejecting motion for disqualification based on refusal to grant honorific of “Dr.” in prior written rulings).

  50. See 1 Rodney A. Smolla, Law of Defamation § 4:16 (2d ed. 2024) (defamation through implication).

  51. See Restatement (Second) of Torts § 527 (Am. L. Inst. 1977) (ambiguous representations) (declaring conditions under which a representation “the maker knows” it “to be capable of two interpretations” is fraudulent).

  52. See Douglas R. Richmond, Trumping Lawyers’ Suggested Ability to Improperly Influence Government Agencies and Officials, 33 Geo. J. Legal Ethics 139, 163–64 (2020); ABA Comm. on Ethics & Pro. Resp., Formal Op. 95-391 (1995).

  53. See U.S. Const. amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”); Erwin Chemerinsky, Constitutional Law: Principles and Policies 700 (5th ed. 2015); Stephanie H. Barclay, Strict Scrutiny, Religious Liberty, and the Common Good, 46 Harv. J.L. & Pub. Pol’y 937, 944 (2023).

  54. See, e.g., Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (prohibiting discrimination in public accommodations); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (prohibiting employment discrimination); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (prohibiting discrimination in education); Fair Housing Act, 42 U.S.C. §§ 3601–3619 (prohibiting discrimination in sale or renting of housing); Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1–102 (2006) (prohibiting discrimination in employment, real estate transactions, and public accommodations); Chi., Ill., Ordinance 2-74-080 (1990) (prohibiting employment discrimination).

  55. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006), vacating 129 F. App’x. 529 (11th Cir. 2005).

  56. Id. at 455–56.

  57. Id. at 456.

  58. Harrison v. Olde Fin. Corp., 572 N.W.2d 679, 680, 683–84 (Mich. Ct. App. 1997).

  59. Id. at 680.

  60. See generally Plotke v. White, 405 F.3d 1092 (10th Cir. 2005).

  61. Id. at 1093–94.

  62. Id. at 1093.

  63. Id. at 1101.

  64. See Brooks, Addressing Americans, supra note 4, at 48–49.