Laws of Address: The Impact of the Practice and Words of Address on Our Civil, Political, and Social Lives

I. Introduction

“What’s the use of their having names,” the Gnat said, “if they won’t answer to them?”^[1]

– Lewis Carroll, Through the Looking Glass.

Address is the kernel of society. People everywhere use words—names, nicknames, titles, styles, curses, terms of endearment or abuse—indicating some aspect or assessment of persons with whom they are interacting. Our social world as it is would wither without address. It is, of course, possible to imagine a different world, which is not necessarily to suggest one of complete silence, but simply a world without names and other forms of address. In Through the Looking Glass, Lewis Carroll depicts Alice in the woods “where things have no names” to illustrate the sense of disorientation that one might feel in such a nameless place.^[2] Fairytales are not the only sites where address may be absent. In our own mundane world, people can and often do get by without addressing one another.^[3] Common experience confirms, however, that people routinely address each other in fairly standard forms. And, when addressed, they ordinarily acknowledge the utterance. It appears almost, or exactly, like a ritual practice in many if not most societies.

What are we to make of this banality? Is this practice of people addressing and acknowledging each other merely the product of mindless habits or dated customs, de rigueur perhaps in polite society, but otherwise unnecessary and largely dispensable? Forms of address are mere conventions. These commonly used expressions that refer to persons are entirely arbitrary. Countless other words of reference could have been adopted instead of the ones now conventional. It is perhaps tempting to imagine that the practices giving voice to these words are also arbitrary and may be disregarded. “We are but too apt to consider things in the state in which we find them,” observed Edmund Burke, “without sufficiently adverting to the causes by which they have been produced, and possibly may be upheld.”^[4] Let’s then take up the invitation implied in Burke’s observation and consider the practices and words of everyday address beyond the state in which we find them.

In this Article I will argue that the practice of addressing others and their answering when addressed contributes distinctively to what it means to be a person in society with others. Look closely at how people in a given culture address and refer to each other and you will soon appreciate how they understand themselves and their community. When spoken aloud conventional forms of address and reference announce correlative entitlements running between speakers and their audiences. With these terms parties assert their status, roles, privileges, and duties in the variable contexts where they find themselves. But that’s not all they do in addressing each other. They also make claims for recognition and demands for compliance as legitimate sources of authority.

Addressing someone is a sign of authority, like a badge or a crown or any number of symbolic exchanges, like swapping business cards or appending one’s title or pronouns at the end of an email message.^[5] All these symbolic exchanges convey expectations of equal, or otherwise more or less, regard and rights. Addressing another person, however, is unlike wearing a uniform or, for that matter, a badge, crown, or some other object or practice, e.g., standing in line, capable of indicating entitlements and mediating expectations. Not everyone wears a uniform, badge, or crown. Lining up is common enough, but it is nowhere as pervasive as the practice of address. Yet it is not just pervasiveness that distinguishes addressing and acknowledging address from other practices that organize societies. Without address society itself is practicably unimaginable.

Societies organize themselves through varied customs and social practices, some more novel or fleeting, like exchanging pronouns or business cards, and others more established and persistent, such as the practice of addressing among interlocutors. There is a constancy to the practice of address (notwithstanding episodic changes in conventional terms of addresses or in who is entitled to address whom and how). Along with pointing and several other common gestures (such as nodding or bowing one’s head, or making or averting eye contact) addressing and responding to addresses are among the most ancient cultural and social practices in human societies. Their persistence suggests greater purpose. As game theorist Roger Myerson observed, “in any cultural tradition that has survived into the modern world, we should expect to find generally accepted systems of rights and authority that provide effective focal coordination in most of the important games with multiple equilibria that may arise in daily life.”^[6] With conventional forms of address (e.g., first names, titles plus last names, honorifics like sir or ma’am, and, most pervasively, with pronouns) speakers give voice to their sense of entitlement, including their duties, privileges, powers, and immunities. These expressed entitlements, even if unfounded, allow parties to coordinate their expectations and their actions.

A lot, if not most, of our legal and social order comes about in just this way, which may be described broadly as the expressive function of law.^[7] Mere expressions of rights, privileges, powers, and duties (without any formal authority or threat of legal sanction) are often enough for people to comport themselves with the expressed expectations.^[8] When people address each other in their everyday interactions, they are expressing their expectations of entitlement. Conventional forms of address, longstanding and widely known, then stand to carry forward, as Myerson suggested, accepted claims of “rights and authority,” which can be enlisted to avoid conflict and facilitate much of social life.^[9]

Forms of address may be conscripted like countless other conventions to coordinate persons in their everyday interactions as demonstrated in rigorous philosophical arguments and formal models of strategic and rational choice.^[10] The practice of address, however, accomplishes something more primitive and prior to the coordination achieved in strategic and strictly rational accounts. Before any coordination through conventional forms of address can occur—indeed, often in order for coordination based on these forms to occur—speakers must first command their addressees, who in turn must acknowledge, as subjects, the command. Quite apart from any entitlement expressed in words of address (that may facilitate coordination), authority and its recognition are first constituted in the practice of address.^[11] We may call this “the first law of address.” By simply addressing others, speakers exercise a form of authority that their subjects, i.e., their addressees, almost always acknowledge.

Addressing and acknowledging address comprise a distinctly human practice. “A person is a being who can be addressed, and who can reply.”^[12] Moreover, the practice of address exposes the kind of persons we are, or may become, while in society with others. All sorts of persons are conceivable,^[13] but to address or speak to actual embodied persons is to recognize individuals (though not necessarily in their fullness) with uniquely human capacities for reason and reflection. Here, again, the practice of address implicates something more primitive and foundational than typically described in rational accounts of coordination. Addressing and replying to addresses are, to be sure, actions subject to our strictly (though boundedly) rational capacities to plan, strategize, and coordinate. These actions—the address and the reply—are often enlisted to establish and support common grounds (or sufficient common knowledge) for strategic coordination. Yet, we are not the only social creature capable of coordination through calls and responses.^[14] Whatever makes the practice of address distinctive in human society, if anything does, it must lie elsewhere.

To identify the source of distinction for human address, Charles Taylor helpfully lays out two views of human reasoning as distinct from that of other animals. On the first view, let’s label it strategic rationality, human reasoning is not qualitatively different from that of any number of other creatures; we are simply better, faster, or otherwise superior at the task of reasoning than other animals.^[15] On the second view, let’s label it evaluative self-reflection,^[16] Taylor suggests a qualitatively distinct mode of reasoning among humans:

[I]f we adopt the second view, and understand an agent essentially as a subject of significance, then what will appear evident is that there are matters of significance for human beings which are peculiarly human, and have no analogue with animals. . . . [Such as] matters of pride, shame, moral goodness, evil, dignity, the sense of worth, the various human forms of love, and so on.^[17]

It is the uniquely human capacity for an address (or reference) to make us feel pride, shame, dignity, self-worth, and so on, that distinguishes the practice of address.

Spoken address and reference, of course, are not the only channels through which we experience such matters of human significance, but the effect of being addressed, for instance, in a manner that instills dignity or denies it, makes the contents and circumstances of address important subjects of legal, social, and emotional regulation. As much as we are strategically rational individual beings, we are also self-reflective relational social creatures. Words of address can inflame our passions and provoke feelings that lie beyond (and often overwhelm) our strictly rational and strategic capacities. It is neither a flaw nor correctable behavior bias to be so moved by an address, but instead an essential aspect of what it means to be a person in our society. We can each aspire to be a better person, a person more in control of certain feelings and passions, but no one can remain fully a person without being subject to the forces evoked by address.

Given this fact about the kind of persons we are—and the susceptibility of our calculative rationality to words of personal reference—address historically has been and will continue to be a concern of law. We see this concern clearly expressed in court opinions dealing with fighting words, hate speech, incitement, and slander, among other procedural and substantive judicial rules and doctrines. Less apparently, but no less importantly, this concern is also expressed in administrative rules and legislative enactments, including constitutional provisions, regulating titles, styles, and other terms of address. All these laws concerning address are subsequent to the first and may therefore be called “postliminary laws of address.”

In this Article I will focus on the practice of address, more so than postliminary laws of address, because it is at once more pervasive and hidden. My aim here is to reveal how and how much this practice pervades in our everyday lives, but not to overclaim its prevalence. Address practice and words of address are detailed mainly to make them and their influence more conspicuous than typically observed in everyday life, not to suggest they are more impactful. With that caveat, Part II begins by drawing an analogy between terms and certain practices concerning land titles and those concerning personal titles, styles, and other forms of address. Part III elaborates the principal claim of the Article under the heading “first law of address.” Part IV presents a brief discussion on conventional forms of address followed by a short conclusion.

II. From Land Titles to Personal Titles, Styles, and Other Forms of Address

When I first received the invitation to deliver the Frankel Lecture at the University of Houston Law Center, my initial inclination was to present on a different but not entirely unrelated topic which I imagined might be of local interest. My first thought was to give a talk touching on land use controls. Admittedly, a lecture on zoning or the like is not the kind of talk for which people typically line up. But Houston is famous for being the largest U.S. city without zoning; and it is also one of the most racially and ethnically diverse cities in the country.^[18] With these combined facts, I felt they might sway a receptive local audience to sit through a lecture on land use regulation and race. Allow me to briefly provide some background on the topic I entertained discussing before returning to and making the connection with the actual subject of this Article concerning the practice and words of address.

A. Brief History of Racial Zoning and Racial Covenants

In the early twentieth century, beginning with Baltimore, Maryland, a number of American cities experimented with racial zoning laws.^[19] On December 20, 1910, the Baltimore Sun summarized the city’s ordinance: “That no negro can move into a block in which more than half of the residents are white. That no white person can move into a block in which more than half of the residents are colored.”^[20] The symmetric restrictions by race served to satisfy the separate but equal doctrine under Plessy v. Ferguson.^[21] With a nod to Plessy’s stricture, cities around the country followed Baltimore’s lead, until 1917 when the U.S. Supreme Court ruled, in Buchanan v. Warley, that a racial zoning ordinance in Louisville, Kentucky, was unconstitutional state action under the Fourteenth Amendment.^[22]

There were, as might be expected, efforts to evade the Court’s ruling in Buchanan. New Orleans, Louisiana, for example, passed an ordinance making it unlawful “for any white person to establish his residence . . . in a negro community without the written consent of a majority of the negroes inhabiting the community” and, of course, vice versa.^[23] In Richmond, Virginia, the city council, relying on the state’s anti-miscegenation law (which remained lawful for a half century after Buchanan until the Court ruled, in Loving v. Virginia,^[24] that it violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment) sought to “prohibit[] anyone from moving onto a block where the majority of residences were occupied by persons whom they were prohibited from marrying.”^[25] As all these evasions failed to persuade the Court, it became clear that the path of racial zoning was a dead-end for segregationists.

Zoning by race was, following Buchanan, unconstitutional state action, but in 1926 the Supreme Court ruled, in Corrigan v. Buckley,^[26] that restrictive covenants, as agreements among private individuals, were not subject to scrutiny under the Fourteenth Amendment.^[27] After Corrigan, developers and other private landowners were encouraged by the federal government, banks, and other interests to incorporate in their deeds so-called “racially restrictive covenants”—private agreements purporting to restrict land use, sale, or occupancy on the basis of race, religion, nationality, or other social characteristic.^[28] Over the next two decades, the use of covenants grew as the principal legal means of segregating communities throughout the country.^[29]

Then, in a pair of mid-century rulings, Shelley v. Kraemer and Barrows v. Jackson, the Court deemed judicial enforcement of these private restrictions unconstitutional under the Fourteenth Amendment.^[30] Although these rulings prohibited public enforcement of racially restrictive covenants, nothing in the Court’s opinions prevented private parties from continuing the practice of making racial covenants and recording them in the land records. Indeed, the practice continued for decades.^[31] It was not until 1968, under the Fair Housing Act, when it became illegal for private actors (with some limited exceptions) to create and publicize discriminatory covenants.^[32]

B. Courts, Customs, and Customary Practices

Through the history of racial covenants we may come to appreciate aspects of law in the practice of people addressing each other. There is a tendency to view law through a lens of state action—i.e., as statutes enacted by legislatures, regulations passed by agencies, and rules enforced by courts or other public authorities. “Surely not all laws are enacted,” as H.L.A. Hart observed regarding “custom which has a genuine though modest place in most legal systems.”^[33] These days, to be sure, custom is not a significant mode for enacting law, but customary practice remains a prevalent mode of enforcing lawful conduct.^[34] Recalling the history of racial covenants reminds us that state actors are only a part, often a small part, of the lawful practices that guide and mediate our encounters with others in our society.

Racial covenants have been unconstitutional for courts to enforce since 1948, yet, through common practices among private parties, they continue to this day to influence the strategies and sympathies of individuals in a manner not entirely unlike the social practice of people addressing one another.^[35] In the case of racial covenants, it is an institutional practice, i.e., the practice of title searching and reporting, that issues a shared announcement to parties engaged in an exchange.^[36] In the case of conversational encounters, the principal topic here, it is a social practice, i.e., the practice of a speaker addressing someone in recognizable and often conventional forms of address, that issues a shared announcement to parties engaged in an exchange.

To appreciate the force of these similar institutional and social practices, it is essential to distinguish the practices of announcements that create shared awareness from the contents of those announcements. Consider, for instance, a prospective home buyer who discovers through a title search a discriminatory covenant on the seller’s land. Observing the contents of the racial covenant announced (or brought forth) by the search and publication of the owner’s chain of title (i.e., the relevant content being whatever social characteristics are purportedly restricted) may very well bear on the subsequent social and economic exchanges and the emotions felt among involved parties—including, in addition to the prospective buyer and seller, third-parties interested in or potentially involved in the exchange between the buyer and seller, such as banks, insurers, and owners or occupiers of neighboring land.^[37]

How might the contents of racial covenants affect these parties and their transactions? It is obvious in some cases where a buyer is clearly covered by the covenant. When racial covenants were legally enforceable, the threat or even mere possibility of a lawsuit was often enough to prevent sellers from selling to the buyer, banks from lending to the buyer, insurers from insuring the buyer and, sadly, neighbors from welcoming or simply speaking to the buyer. Given these hurdles most buyers would not find it worthwhile to pursue the purchase or rental in the first place. And that was the principal aim and function of racially restrictive covenants—it was not to bring people to court, but rather to keep them out of communities.^[38]

Covenants, like most private agreements, are largely self-enforcing, which is not to suggest an absence of law. Surely the legal backstop of a judicial award or order to remedy a breach of a covenant contributed to the self-enforcing character of these agreements. As President Truman’s Committee on Civil Rights reported just before Shelley: “The effectiveness of restrictive covenants depends in the last analysis on court orders enforcing the private agreement.”^[39] Gunnar Myrdal, among the earliest and most astute analysts of American racial segregation,^[40] similarly observed:

If the Court should follow up its action of declaring all local [zoning] laws to segregate Negroes unconstitutional by declaring illegal also the private restrictive covenants, segregation in the North would be nearly doomed, and segregation in the South would be set back slightly.^[41]

In the South racial covenants were significantly less relied upon than in the North, which is why Myrdal argued their unconstitutionality would only slightly set back segregation in the South.^[42] Southern-style segregation, of course, also relied on courts of law and equity to enforce racial segregation, but in the South the role of custom and customary practice appeared more salient.^[43] Less obvious, but no less significant, was the role of custom and customary practice in the segregation of communities in the North and West through racial covenants, which became more apparent once courts were no longer able to enforce them.^[44]

Consider again the prospective buyer purportedly prohibited from owning or occupying some covenanted property. Making covenants legally unenforceable will not make the neighbors more welcoming, at least not initially.^[45] That’s hardly surprising. Social sentiments do not automatically change with legal decrees. However, the continuing influence of unenforceable covenants on the willingness of self-interested banks, insurers, and sellers to transact with the buyer seems a bit more surprising. Why would a bank, otherwise willing to lend to the buyer, abandon a seemingly profitable loan transaction after discovering a covenant whose judicial enforcement is unconstitutional?

Here is one possible answer: a bank loan officer may predict that “white flight” would follow after the buyer moved in, which could lead to a decline in the property value—the bank’s principal collateral for the loan (i.e., the mortgage).^[46] A rational response from the bank would be to lend less, or not at all, to the buyer. With that financing contingency, sellers may be less likely to entertain the buyer’s offer. Insurers too may hesitate given the financial and other risks.^[47] Through the beliefs and behaviors of actors like these, the contents of racial restrictions continued to influence housing segregation patterns and social expectations (of inclusion and exclusion) long after their enforcement was deemed unconstitutional.^[48]

In other words, segregation based on racially restrictive covenants continued, notwithstanding their unconstitutionality, through custom and customary practices. It is well-known that even after the Court’s ruling in Shelley, property owners continued to create new covenants, which suggests that “a major function of racial covenants was to allow white neighbors to identify themselves as allies in a preference for segregation and an intention to maintain it, and to signal the same to outsiders.”^[49] Insiders, outsiders, and other third parties all understood perfectly well the intention inscribed in the contents of these covenants and the possibility of action, including a mere reminder of who is historically welcomed in the community and who is not.^[50] Even today, three-quarters of a century later, current and prospective homeowners continue to experience the felt impacts on encounter with these long-unenforceable covenants lingering in the land records.^[51]

C. Separating Contents and the Practices

Calls to remove this offensive racial content from land registries in counties throughout the country were already underway before the widely televised killing of George Floyd, an unarmed Black man, by a white police officer in 2020.^[52] In the immediate aftermath of Floyd’s murder, the nation seemed to undergo a kind of momentary soul-searching about its troubled racial history. State legislatures around the country reacted by looking for statutory responses to calls for redressing patterns of racial subordination in policing as well as in education and employment among other domains. In housing, there was already growing attention to racial covenants lingering in the land records. After Floyd’s murder much legislative effort focused on racial covenants.^[53] Legislatures considered and pursued a variety of strategies, including destruction, physical alteration, and sequestration of deed covenants expressing offensive racial content in official land registries.^[54] While few people today would endorse racial covenants, many observers were, quite reasonably, resistant to the thought of destroying, altering, sequestering, or otherwise removing historical materials from the land records.^[55] In any event, for most people it was not the mere existence of the contents in these covenants that touched their lives (or potentially so), but rather the practice that announced and brought them forth.

An alternative strategy eventually surfaced. Instead of removing the contents, alter the practice. That is, rather than seeking to eliminate contents that most people today find offensive, state legislatures were advised to consider adjusting the practice. For instance, by allowing homeowners to remove racial covenants from their record chain of title (which does not entail removing or altering any physical document in the land records) the institutional practice of title searching and reporting can elide the harms that would follow from announcing the offensive contents in these covenants while preserving the copious archives of our vexed racial history.^[56] Our history of race is fraught, to say the least, but it is also essential to our self-understanding as a nation with countless neighborhoods and communities where those who preceded us endured and lived through this history. We ought not to conceal it from ourselves and our children. “At the same time, homeowners needn’t be conscripted as carriers of history, hurtful and without legal effect, in their chain of title.”^[57]

An institutional adjustment to the practice of title searching and reporting—allowing homeowners to remove prohibited covenants from their record chain of title, while preserving the offensive contents of those covenants in the land records—offers a reasonable but inevitably imperfect balance between individual and community interests. All of this has been about the talk that I decided not to give for the Frankel Lecture. Yet, I hope the reason for my lengthy digression now is clear. It was presented by way of analogy, although it is not a perfect analogy. There is a principal lesson to be drawn from the digression. Namely, to appreciate the insight behind what I call “the first law of address,” it is critical to distinguish the practices of address from the contents and conventional forms of address, contents which may be regulated or unregulated by what I call “the laws regarding address.” I now turn to these topics.

III. The First Law of Address

Most people are scarcely aware of the degree to which address steers their everyday lives. Some awareness is had when an address is used forcefully in getting someone’s attention to alert or caution them, to insist upon or threaten them, to disparage or insult them and so on. For most people such encounters are exceptional moments in any given day, or so one hopes. In any event, attention-getting is not the distinctive purpose of address. We address others even when we already have their attention. An ongoing exchange concluded with “I’m done,” may be effectively punctuated with a formal and polite address (e.g., your honor) or a forceful and impolite one (e.g., you jerk!). Beyond commencing and concluding exchanges, terms of address are just as frequently spoken between and within comments of a continuing conversation. Address is so rife in social exchange that we often fail to appreciate how it avoids blunders, conflicts, and other infelicities by encouraging rapport, narrowly understood, among strangers and acquaintances.

Address is a principal means that we use to create and maintain rapport.^[58] It is, of course, possible to have rapport without speaking, just as it is common enough to speak without terms of address. In response to the request “give me that,” an addressee may simply say “yes,” or say nothing at all—instead of saying, for instance, “yes, ma’am”—while handing over the requested item. There is nothing strange in the absence of address terms between interlocutors at any given moment or over a stretch of them. During the span of a day, however, only in the most isolated or staid social settings would it be normal to not regularly address or be addressed by someone with a personal pronoun, name, nickname, or the like. Though not strictly necessary, like so-called filler terms (e.g., um, uh huh) which are also not necessary, terms of address are ubiquitous in everyday speech. Their ubiquity suggests purpose in their expression. Filler terms, for example, like “um” can be an effective hesitation marker, giving a speaker time to think without relinquishing the podium, while an occasional “uh huh” can offer assurance to the speaker that the other is listening carefully to what is being said.

Filler terms may also build rapport among conversational partners, but not in the distinct and essential way initiated through address. Address has a distinctive way of commanding or calling on another person’s attention. “If I call out your name,” wrote Christine Korsgaard, “I make you stop in your tracks. (If you love me, I make you come running).”^[59] Once addressed, as she put it, “you cannot proceed as you did before,” at least not without some “active resistance”:

Oh, you can proceed, all right, but not just as you did before. For now if you walk on, you will be ignoring me and slighting me. It will probably be difficult for you, and you will have to muster a certain active resistance, a sense of rebellion. But why should you have to rebel against me? It is because I am a law to you.^[60]

In a similar vein, Michael Tomasello has observed, “if I attempt to communicate with you—I say ‘Hey, Ethel’ and you look at me—when I then produce my gesture or utterance, you cannot just ignore me as though I did not attempt to communicate.”^[61] True, after her acknowledging glance, Ethel could not “just ignore” his attempt to further communicate,^[62] but why did Ethel look at him in the first place? And how did his choice of address, her first name, Ethel—as opposed to saying “Hey, you” or just “Hey”—influence Ethel’s immediate response and what, if anything, would follow between them? Answering these questions, or attempting to, will shed light on the distinctive power of address.

Consider, first, the possibility that there is nothing distinctive about address. Terms of address may simply have the same power over people as other conventionally understood expressions. As rational actors, or more accurately, as boundedly rational beings, subject to both known and unaware strategic aims and biases, mere words (even though “cheap talk,” as economists often describe them) can still calculatedly guide or unknowingly nudge our conduct.^[63] By simply speaking words to people otherwise going about their business you give them “incentive” and “reason to stop.”^[64] But the words that accomplish this feat need neither be terms of address nor actually addressed to anyone. For instance, when Korsgaard proposed that the power of spoken address can create a normative duty—i.e., “[b]y calling out your name, I have obligated you”^[65]—she was actually making a broader claim about the power of language itself. “All I have to do is talk to you in the words of a language you know, and in this way I can force you to think.”^[66] In this sense, speakers possess a power to intrude on another person’s reflections because “linguistic consciousness is essentially public, like a town square.”^[67]

That spoken words in general can force others to think, often think twice, surely gives speakers a unilateral and singular power over others in earshot. Words of address, however, invite more than individual circumspection.^[68] They instigate a bilateral and mutual relationship between speakers and addressees. When a speaker addresses others, they typically discern the speech directed at them, and then they respond in ways typically discernible to the speaker. Both parts are needed to secure the address’s distinctive power. Conveniently each part is usually accomplished in everyday exchanges. First, we appear conditioned to discern speech relevant to ourselves (such as our names and other salient references). An address is not often missed by its targets. Second, knowing or believing that they are being addressed, people tend to acknowledge it (unless they actively resist or condition themselves not to respond) in ways that are seldom missed by speakers. It is this bilateral exchange between speakers and addressees that gives rise to mutual recognition and constitutes what I refer to as “the first law of address”—the one from which all other laws relating to address are derived.

What is the source of the first law of address itself? One can only speculate about the origins of this behavioral law, but however mysterious its source may be, it is clear enough that it is adaptive to the kinds of rational and relational creatures that we are. As embodied beings in society with others, we appear evolved to, and are certainly trained to, participate in the concerted behavior required to bring about the distinctive power of address (i.e., behavior commencing with a speaker’s address that must be discerned and acknowledged by the addressee in a manner recognized by both parties).^[69] Here, it is perhaps useful to note a disanalogy between, on the one hand, the commercial and institutional practices of title searching and reporting, and on the other hand, the behavioral and social practices of addressing others. While the former is clearly based on arbitrary conventions, the latter—that is, addressing and responding to being addressed—is more intimately connected to our capacities as social beings.

A. The Cocktail Party Effect

Our ability to discern when we are being addressed or referred to by others is related to a more general human capacity for selective attention, which is an essential facility for managing daily life in our sensory-rich world. We are so inundated by sights, smells, sounds, and tactile impressions that none of us could take them all in for even a moment. Spoken words alone have so many acoustic attributes (e.g., pitch, tone, volume, etc.) that when combined with their linguistic elements (e.g., pragmatic, semantic, syntactic, etc.), they generate countless variations and subtleties the vast majority of which falls outside of our conscious awareness.^[70] Because we cannot attend to the innumerable sensations that the world constantly impresses upon us, we must intentionally or inadvertently select those sights, smells, sounds, and such on which we can spare some of our limited attention. Attending to a thing, however, doesn’t mean that we are fully aware of it or its impact on our behavior. Advertisers and marketers have long profited from this fact of human consciousness, which behavioral researchers and policymakers are now increasingly exploiting to nudge behavior in ways they believe are socially desirable.^[71]

There is a large and expanding literature on human selective attention across various perceptual spheres—including our visual, olfactory, auditory, and tactile senses.^[72] Clinical research on the auditory sphere has identified strategies and learned skills that we use to attend to the numerous sounds we hear all at once.^[73] Imagine, for instance, the last time you tried to talk to someone at a boisterous concert, or at a crowded cocktail or tailgate party, or at some other noisy event. In studying the ability of persons to focus on one conversation or sound in a context with multiple competing conversations and sounds, researchers of auditory selective attention identified what has become known as the “own name effect.” That is, even as individuals tune out competing conversations or sounds to focus on one particular conversation or task, when their names (or other personally relevant terms) are spoken in the ostensibly tuned-out conversations (or “channels”), the personal reference breaks through the background noise and reaches the listener.^[74]

If you have ever heard your name mentioned in a conversation to which you were not otherwise attending, then you know the phenomenon. If not, then you can look to scores of recent behavioral, cognitive, and neuroscientific publications for evidence of our capacity to triage the sounds that matter to us.^[75] We cannot attend to all the things we actually hear over the course of most ordinary days. Conversations at the market and other public spaces would be nearly impossible without selective attention to the spoken words and sounds that are heard and comprehended in those places. To achieve even our most basic goals and plans we must screen out some sounds in the din of daily life. Our capacity for this selective screening has been described as the “cocktail party effect,” whereby sounds are segregated into distinct channels to which we are able to differentially attend.^[76] Importantly, the “own name effect” shows that we are not entirely closed off to those other voices and sounds that we screen out. We are conditioned to hear our names and other personally relevant terms in the cacophony of our day-to-day existence.^[77] Babies begin to master the capacity to attend to their names before their first birthday.^[78] Seniors seem to lose some of this capacity as they age.^[79] In the thick of life our facility over this capacity supports the first part of the concerted power of address.

People are conditioned to hear when their names and other personally relevant markers are called out, even on unattended channels that sound like background noise in the hustle and bustle of their busy days and evenings. Merely hearing one’s name or a personal marker, however, is not enough to secure the power of address. Here, it may be useful to observe a distinction between address and reference. A person attends to a reference at a tailgate or cocktail party when she hears or overhears her name mentioned by a speaker who is not directly speaking to her. It is an address when the speaker calls out her name or other reference in a manner directed at her, making her the addressee. When a speaker merely refers to someone, the referenced person may or may not find it convenient or possible or appropriate to let the speaker know that she heard her name mentioned. There is no obligation to do so as the speaker and often the person referenced may feel obligated not to indicate she heard her name mentioned—lest she be accused of eavesdropping or suffer some other embarrassment. Approaching, turning toward, or otherwise responding to a speaker who merely mentions one’s name (i.e., a reference) is largely optional in stark contrast to the general pattern observed with an address.

Addressees almost always acknowledge those who address them, which is not to say they do so politely or kindly or with considered reflection. It is extremely rude and difficult for most people to completely ignore an address without cause. Completely failing to cast back your attention when you recognize that another calls on it does occasionally occur. Sometimes this happens through inadvertence, such as when we are not paying sufficient attention or didn’t hear the speaker or believe, wrongly, that the speaker must be talking to someone else. Sometimes it is intentional or the product of trained inattention of the sort New York City subway riders are famed.^[80] Some people may not be able to hear or otherwise appreciate when they are being addressed. Outside of these and similar situations, people are rarely inaccessible to another’s address. In most situations, not only do people know when they are being addressed, they almost always respond to the address in an acknowledging manner to the speaker.^[81]

B. Acknowledgment and Rapport

Address is a bid to build and maintain rapport—a bridge connecting speaker and addressee. What crosses over that bridge, once secured, needn’t resemble anything like the contemporary way “rapport” is understood, i.e., suggesting a warm easygoing connection between people.^[82] That is “good” rapport, the adjective making it plain that people can have rapport that is not good.^[83] When awful words are exchanged between people addressing one another, they too have rapport, though usually not the warm familiar sort. Theirs may be called cold rapport. Whatever label it takes—good, bad, cold, warm, etc.—“rapport,” as I use the term here, simply involves people sharing in each other’s perspectives.^[84] At base, that is all rapport is: two or more persons adopting one another’s perspectives. In this sense, then, address again is an invitation to establish rapport; an invitation to which there is almost always a received reply or response. When a speaker casts out an address, the addressee almost invariably throws back a look or words to the speaker, securing rapport and mutual awareness between them as suggested by the French verb rapporter (meaning to carry something back) from which the English “rapport” is derived.^[85]

Two points to quickly clarify: First, words clearly are not the only way people build rapport.^[86] Smiles, winks, and knowing looks among other gestures will often do the trick. Second, returning “something” to the speaker doesn’t necessarily mean matching or mirroring what was first cast out. To build rapport one needn’t meet every smile with a smile, every wink with a wink, or every spoken address with its common spoken correlative. Rapport is achieved whenever that which is conveyed or “carried back” is mutually perceptible. There is a vast repertoire of responses that can secure a link between speaker and addressee. Words and sounds (like hmm, uh huh, and um) are common, but so are nonverbal responses including an infinity of facial expressions and postural deportments—from vigorous to almost imperceptible nodding, bowing, leaning in or away, making or avoiding eye contact, raising or furrowing eyebrows, crossing or uncrossing arms and legs.^[87] Acknowledgements and responses made by addressees, intentionally or not, to speakers may take countless forms. Any form will work to build rapport so long as it is mutually observable.^[88]

Observable, in this context, is meant broadly to include any visible, audible or otherwise mutually perceptible response to an address. When two or more people observe something and each is aware that the other or others observed it too, then we have the beginnings of mutual observability. That is, mutual observability commences when they all know that they all know they just heard what they heard, saw what they saw, smelt what they smelt, or otherwise perceived what they perceived. Mutual observability is satisfied when people share in each other’s perceptions so completely, or sufficiently, that it would hardly be an exaggeration to say that they are of one mind about the occurrence of something. When a mutually observable address–response exchange occurs (i.e., an address casted out and something returned), speaker and addressee both know it, and each is witness to the other’s awareness of it and to their shared witnessing of the perceptible link being made between them, like hearing the sound of a seatbelt properly secured. They click, as is often said of people who have obvious rapport between them.^[89] Once rapport is established, then cooperation across all sorts of human interaction becomes more feasible and predictable. Having rapport does not guarantee that any two people will interact always as expected. It does, however, greatly lower the odds of surprise and blunders.^[90]

IV. Contents and Conventional Forms of Address

Titles, styles, and other forms of address are common in cultures throughout the world.^[91] There is a reason for this. They are elemental features of society. Announced titles and other forms of address coordinate behavior from the ground up, subtly yet forcefully guiding individuals through everyday encounters.^[92] Address publicly conveys expectations of how a social encounter should or will unfold. More than sociality, however, addresses also constitute our individuality, ennobling and emboldening personalities as well as disabling and giving countenance to persistent anxieties of identity.^[93] A measure of dignity, degradation, or other sense of self emerges when even the most banal honorific or humilific is offered, or denied. Imprints of address register in our basic biology.^[94] The influence of terms of address in our lives is extraordinary. Through the practice of address these terms allow speakers, addressees, and audiences to coordinate and mediate their expectations and emotion based on commonly known announcements.

We now turn our attention from the practice of address to the words or terms of address, focusing on the more conventional usages, so-called forms of address. Before delving into these conventional usages, however, several caveats are warranted. First, beyond conventional forms of addresses, any number of other words or terms can operate as a “referring expression,” as linguists call them—that is, what “a speaker uses in order to enable an addressee to ‘pick out’ something in the world.”^[95] A referent is anything to which someone might draw another person’s attention. In this Article I am largely concerned with referents to persons, and more narrowly still to addresses made to persons.^[96] Second, to grasp the conventional meaning of addresses or references, it is essential to keep in mind the larger conversational context.^[97] Third, even accounting for the larger verbal context is still not entirely sufficient. More is required because focusing on utterances can risk overlooking gestures, like finger pointing, and end up overstating the influence of spoken words. Isolating words for analytical purposes leaves them in an unnatural state.

For all of these reasons, caution is called for, as Chief Judge Richard Posner observed: one must be “mindful of the dangers that lurk in trying to assess the impact of words without taking account of gesture, inflection, the physical propinquity of speaker and hearer, the presence or absence of other persons, and other aspects of context.”^[98] All of these considerations, and more, contribute to the impact of words exchanged in interpersonal encounters. It is impossible to calibrate the precise contribution of any term of address (the words alone) in any real-world settings.^[99] Fortunately, that is not an aim of this Article. As with the aim and approach taken with regard to the practice of address, the purpose of focusing on the words of address is to render them more conspicuous and less taken for granted.

A. Conventional Forms of Address

An address may be broadly understood to “mean any expression used to attract or maintain the addressee’s attention,” which may be labeled direct address, as in speaking directly to a person, namely an addressee.^[100] Address is used more restrictively here to mean not any expression uttered to capture or maintain the attention of another, but rather a verbal expression that “picks out,” “identifies,” or “marks” a person to whom one is speaking.^[101] People are also addressed in writings, of course, but the claims made in this Article principally concern verbal markers made by speakers regarding their collocutors (personal addresses) as well as, but to a lesser extent, markers regarding persons or parties being spoken about rather than to (personal references).

Additionally, this Article is concerned largely with basic and familiar personal verbal markers spoken in face-to-face encounters.^[102] Conventional ways of voicing these markers are known as forms of address or reference. There are many forms. First names are common, in full (e.g., Rebecca, Leonard, Charles) and in diminutive forms (Becky, Lenny, Charlie) as are nicknames (Clytie, Bones, Yank). Nicknames, which may run from flattering or friendly to pejorative or just plain mean, often characterize some behavioral or physical aspect of an individual (e.g., Clytie, short for Clytemnestra, a mythic schemer) or some professional or occupational status (Bones, a shorthand for sawbones, slang for physician or surgeon) or a particular locale associated with an individual (Yank, short for Yankee, an inhabitant or native of New England).^[103] First names and nicknames often suggest familiarity when used as an address, although sometimes the suggestion rings false or the usage is resisted as too familiar.^[104]

Liberal use of first names is a long-held practice among Americans, which has only increased with broader secular trends toward informality and social, if not economic, equality in the United States, as well as elsewhere.^[105] Notwithstanding these trends, formal and other forms of address remain common. Last names alone are occasionally said as an address and, again, more often as a reference, but polite speakers typically use titles plus last names (Mrs. Crawley, Dr. McCoy, Prof. Kingsfield) or an occupational or professional title (Governess, Officer, Esquire) or honorific (Ma’am, Mister, Sir). Generic names (Jane, Jack, John) are sometimes invoked when personal names or professions are unknown or otherwise unavailing, as are common descriptors (Shorty, Slim, Sexy) which needn’t be descriptively accurate. Descriptive accuracy is often beside the point. Through address speakers typically aim to acknowledge or establish relationships, to indicate their status or circumstances, to close or create distance between themselves and their addressees or audience. Fictions can accomplish these aims as well as facts. Kinship terms (Sister, Brother, Son) are, for instance, often used in contexts of intimacy or trust without regard to actual, biological or legal, family bonds.^[106] What matters is what people share in believing and what those beliefs imply.

Address power exploits shared beliefs and expectations, whatever they are, which is not to say that facts are irrelevant. Feelings get hurt and reputations ruined when people are falsely maligned, and truth is a legal defense to otherwise defamatory speech.^[107] Facts matter. At the same time, however, addressing and referencing are not truth-in-labeling exercises. They are rather ways that people express attitudes and beliefs about what they can and cannot do or can get away with, what they may or must do, and what others must do for them. In law these claims are given technical terms (i.e., powers, disabilities, immunities, privileges, duties, and rights) but everyday assertions of entitlement are not normally subject to legal adjudication.^[108] Dissatisfaction or disagreements over them are largely avoided through the tendency to comply with beliefs and expectations implied by address and reference irrespective of their accuracy, legality, formal or informal enforceability, or truth. Addresses are often accorded deference because the claims associated with them are uncontested or the costs of challenging them are too great.

On some occasions the stakes may appear too great. For example, researchers have recently pointed to this worry in a linguistic study using police body camera footage from about a thousand routine traffic stops.^[109] They found that officers spoke less respectfully, though not rudely, to Black (as compared to white) drivers—addressing them less formally by first names and with terms like “bro,” “dude,” and such. “To be clear: There was no swearing,” said Dan Jurafsky, one of the study’s co-authors and professor of linguistics and of computer science at Stanford University. “These were well-behaved officers.”^[110] Indeed, had anyone complained about being addressed informally (though not in an unfriendly manner) the officer might have been the one to take offense.

What is one to do when addressed with subordinating language? Speaking up candidly is an option along with other strategies short of resigned silence. Still, is it worth the hassle, not to mention the potential unpleasantness of a verbal conflict or the risk of further detainment or sanction? It is after all a small matter in the context of a police stop that can escalate to something far worse. Better to let it slide, many drivers no doubt conclude, than invite more scrutiny from the police. Small things sum up, however, as Jurafsky observed about the officer interactions: “the many small differences in how they spoke with community members added up to pervasive racial disparities.”^[111]

In other instances the stakes may appear less weighty, but these occasions too can be fraught with hidden peril. Claims to mundane entitlements (like use of public restrooms), as well as spectacular assertions or denials of dignity, are also implied by basic pronouns (such as he, she, they). Pronouns are the most common form of address and reference. They are used to establish an enveloping commonality (“we the people”) or to observe a separating difference (“you people”) and sometimes both in the same breath when people talk in terms of “us versus them” or in the notorious recent political ad, which states, “Kamala is for they/them; President Trump is for you.”^[112] As much as they sort individuals into loose, undifferentiated clumps, pronominal address and reference can also indicate a close or special relation or a person’s individuality.^[113] Siblings and other family members, friends, and other associates sometimes put an emphasis on “our” before mentioning “family,” “friendship,” “partnership,” or other association to show or claim they are closely connected.

To signal a close relationship or someone’s distinctiveness, first names and nicknames are often more reliable markers, but not always. First names are sometimes thrown about to deny closeness or show disrespect and nicknames are often said with the abusive intent of undermining a person’s individuality.^[114] Knowing and using a person’s first name or nickname may be a sign of intimacy and warmth or it may be a demonstration of privilege and power. Telling the two apart can be a challenge, not to mention the difficulty of discerning whether use of the power or privilege is warranted and welcomed or wrong and resented.

Observers may also confuse an address or reference expressing endearment (my dear, good-ole boy, old bastard) with ones made to ridicule or show scorn (hussy, quack, son-of-a-bitch) by failing to appreciate subtle moments of camaraderie, irony, or other contexts where common markers of respect and disrespect are creatively appropriated for counter purposes (pointing out, for instance, that hussy derives from housewife).^[115] Terms of endearment and scorn said for their usual purposes may be highly creative, and indeed are sometimes most effective when inventive, but creative and unconventional usages lose their import in moving from familiar relational settlings to more arm’s-length transactional ones, wherein they are less effective in aligning societal beliefs, expectations, and actions.^[116] An idiosyncratic address or reference will have a limited impact, or practically none at all, when it lands above everyone’s head. At times that may be the speaker’s true intent, but most of the time most people want their words heard and meanings followed. They achieve these ends frequently by using standard forms in expected ways, which draw on and contribute to the well of practices and predictable routines in a society. In this important, essential sense, conventional address and reference say less about specific speakers and their intended individual targets than the society in which they are spoken.

B. Fighting Over Forms

Seeing address and reference from a general societal perspective may seem counterintuitive because in daily life, they are always spoken to and about specific persons or groups. Occasionally, society and its demands are revealed in everyday address encounters, usually when someone hesitates or fails to go along with expectations expressed or implied in conventional forms, but even on those occasions the tendency is to see the hesitation or failure as personal rather than as a cultural or institutional glitch in the workings of the larger society. Challenges directed toward society at large, when acknowledged, are typically set aside as quibbles or dismissed as the rantings of fanatics.^[117] To most people, during times of relatively stable politics and social practices, these contestations are seen as peripheral occurrences among isolated extremists and more or less harmless oddballs on campuses, city squares, backcountry lots, or other remote enclaves.

In times of sustained political and social fracture, however, quibbles can quickly turn into quarrels, and once faraway or harmless outliers can appear as existential threats to more insular communities, especially among the young. Fear of the corrupting influence of the “fanatical portion of society” over the young has long been a call to action, particularly as its sway starts to take root in “schools,” “the press,” and “the pulpit,”—“those great instruments by which the mind of the rising generation will be formed.”^[118] It was nearly two hundred years ago when John C. Calhoun issued this warning, but the fear is as present as ever, maybe more so. Today the reach of those great instruments has been greatly extended through ever evolving channels of social media, speeding up the generational cycles wherein the claims of eccentrics, extremists, outliers, and outsiders may take hold to challenge conformity with conventional norms.

Nowhere, perhaps, are these challenges better observed than in fights over conventional forms of address and reference. When people argue about ways of addressing and referring to one another, rarely is it just about the sentiments of isolated individuals. In particular, when their arguments rise to the level of public debate, they are almost certainly fighting less for idiosyncratic tastes or preferences than over competing claims to material and symbolic entitlements associated with address and reference. By making their claims for all to hear and see, they reveal their aim is to secure or displace some existing social practice, which is to say they are fighting over culture. As objects of culture wars go, however, fights for and against forms of address appear de minimis compared to those over lifestyles, political ideology, race, religion, sexual morality, and so on. Yet it is this very fact of these fights over forms, their seemingly inconsequential nature, that makes them so resilient (though not entirely impervious) to change.

V. Conclusion

This Article has suggested that it is critical to distinguish the practices of address from the content and conventional terms of address, departing from an analogy to our regrettable legacy of racially restrictive covenants and the practices of searching and publicizing chains of land titles. Yet the analogy can go only so far. There is something distinctive and pervasive about the practice of address. People everywhere use words—names, nicknames, titles, styles, curses, terms of endearment or abuse—indicating some aspect or assessment of persons with whom they are interacting. The Article describes how the practice that gives voice to these words can facilitate both social coordination and individual self-reflection, rendering the practice and words of address concerns of law and legal regulation.