ALOTT5MA FRIDAY GRAMMAR RODEO I: Legal writing guru Bryan Garner talks about the Supreme Court Justices' writing and grammar preferences, including
transcripts of his 2006-07 interviews with The Brethren. (HT: Amy.) And it looks like the Chief Justice needs to read
our archives:
Garner: Let’s go to a very specific question. You’re known as a stickler about the distinction between that and which. Why does it matter?
Roberts, C.J.: I think it makes for dramatically different reading. I don’t know why. I couldn’t tell you. But when I see sentences with which in them, it slows you down; it’s a little more . . . what? It starts to sound like one of those old 19th-century contracts — which and wherefore. That just seems to have a better pace to it. I actually find you can usually get rid of both of them and go with the gerund that, again, is better for pacing. But which is . . . I usually strike ’em out.
And Justice Scalia has a bugaboo or two:
One of my pet peeves, what is happening recently, is another word is becoming less useful than it used to be, and that is the word cite, to cite. In more and more briefs, I find, “He cited to Marbury v. Madison.” You don’t “cite to” a case; you “cite” a case. And when you put in the unnecessary to, you make it impossible to use the indirect-object construction, which was possible when you used the direct object; that is to say, you used to be able to say, “He cited Marbury to the court.” You can’t possibly say, “He cited to Marbury to the court.” But it’s basically illiterate to put in the to, and it’s a shame. It’s dulling one of the tools of our language....
Beyond pure literacy, avoid legalese. There are all sorts of . . . the instant case. I said in one of my speeches or I wrote somewhere: a good test is, if you used the word at a cocktail party, would people look at you funny? You talk about the instant case or the instant problem. That’s ridiculous. It’s legalese. This case would do very well. Another one of my bêtes noires of legalisms is nexus. Yeah, nexus. What is it? It’s Latin for “connection.” You don’t make it more scientific at all by calling it a nexus. What else, besides being grammatical, avoiding legalese? Oh, avoid trendiness. That’s probably the other extreme of legalese. I never use, ever use, nor let my law clerks use such trendy expressions as “the First Amendment informs our consideration of this.” The first time that was used, that was very nice. It was a nice metaphor. But it has lost all of its vividness, and it’s just cant. Another example of the same is “Marbury v. Madison and its progeny.” That was wonderful the first time it was used. It is trite now. Terribly trite. Get some other expression.
Huh. Learning I actually have a point of agreement with Scalia...well, let's just say that I'm with him on "cited to." What a clunky, unnecesarry structure. Heck, I'm not even sure what it's supposed to mean; it sounds like you're citing another case to the case in question, not citing the case in question.
ReplyDeleteI'm with him on "the instant" - I just told someone to take that out of a motion this week, so I sent him Scalia's comment this morning to explain why.
ReplyDeleteAdam, this will be extremely useful as well as interesting - thank you for posting it!
The transcripts are fascinating; I will mine them for several posts going forward, I think.
ReplyDeleteI'm with Scalia on cited TO but not on the other stuff. Saying "this case" can be confusing if you have just been discussing another case -- and that is usually what requires the use of "the instant case." The writer is looking for a way to help the reader understand you are no longer discussing the precedent but the [instant] case. Alternatives to "the instant case' are equally clunky or worse, like "the case presently under review." I think Scalia needs to get over ithat one. Sorry Genevieve. And who cares if people use nexus and progeny? I suspect usage of the former in legal writing has expanded due to the word's function in analyses of issues like choice of law and personal jurisdiction. It doesn't bother me if it gets used elsewhere. As for progeny, what is another word for that that Scalia would like to see? Babies?
ReplyDeleteThose who cannot do...
ReplyDeleteLess clunky alternatives to "the instant case" include "this case" (when you haven't just been discussing another case) or "the current case." And I've been deleting it when writers put it in as an extra, unnecessary word, as a tic. Otherwise I always prefer "the current case" to "the instant case".
ReplyDeleteI agree with you about progeny - it's a useful concept that's far more clear and concise than "Marbury and the cases that follow it and develop its concepts further."
"Cases following Marbury," "The Marbury line of cases," etc.
ReplyDeleteI recall reading that both Scalia and Souter had a pet peeve about using the term "viable" to refer to abstract doctrines, not living things. A fetus may be viable, but the Casey per curiam is not.
ReplyDeleteThat works, Adam.
ReplyDeleteThose do work, Adam. Genevieve, I'll try "current case" in my next brief and see if it makes the grade with the rest of the team. (I don't have final cut on it.)
ReplyDeleteInstead of "Marbury and its progeny," I tend to use "every case that has ever been about judicial review ever."
ReplyDeleteGarner notes (in A Dictionary of Modern Legal Usage, my favorite work-related book) that it would be insensitive to refer to Roe v. Wade and its progeny.
ReplyDelete