A List Of Things Thrown Five Minutes Ago

FRIDAY GRAMMAR RODEO PRESENTS: HOW MICROSOFT CHANGED THE LAW WITHOUT THE LAW EVEN KNOWING IT: [Now with embarrassing math error corrected] This started as a post about Microsoft Word’s irritating choice of default header styles – take a font that nobody uses (Calibri), use a color that nobody uses (blue), default to a font size that almost nobody uses (14-point), and make sure that it clashes with just about every other typographical choice a person could make. But running that conundrum down crashed me headlong into another discussion I had last week with both Spacewoman and a colleague: what does "double-spacing" mean? Allow me to borrow a phrase from the teasers for the 11:00 local news: the answer may surprise you.

For those of us who are lawyers, the gist of the double-spacing problem is this: Long ago, judges realized that lawyers can’t shut themselves up unless they’re told to shut up. So courts required the use of standardized typographical conventions: pica, or 10-character, monotype spacing; double-spaced lines; minimum margins; maximum page limits.

Then, in around the late 1980s, the availability of proportional-spaced fonts in word processing programs necessitated revisions. Courts amended their rules to allow proportional-spaced fonts, but required a minimum point size (usually 12-point), and kept the double-spacing requirement. Times New Roman became the default font for most lawyers, in part because it was Word’s default font, and in part because, as the slenderest of all the normal-looking proportional fonts, it allowed the most cramming of surplus words into a brief.

Since the advent of proportional fonts, some courts – notably the Seventh Circuit, though it is not the only one – junked the point-size/double-spacing/page limit formula, recognizing that lawyers’ orthographic gymnastics, all in the service of legal word-cramming, were making briefs difficult to read. Most courts, though, have stuck with the old formula.

Then along came Word 2010 (or 2007? I can't tell). That program presumably was built in part by people who understand that word processing software is a tool with many uses, and that, if it is going to retain its near-monopoly on the reduction of thought into more-or-less formal written English language, it needs to do a lot of different things, like bullets and boxes and lists and wraparounds for pictures and page numbers and Greek letters and zapf dingbats and all kinds of whatnots.

But the program also was written, and this is important, by some people who wanted other people to write better. Not better in the sense of better grammar and clearer ideas, but better in the sense that if you squinted your eyes and saw the words as objects instead of meanings, what was on the page would look prettier. And that meant value judgments. A blue heading that is way bigger than the text is a better kind of heading. Headings that are all different sizes are better at conveying decreasing hierarchies of headingness. A little more white space is better than blocks of grey, except when the white space comes in between grey blocks that are the same kind of grey blocks, in which case that white space: verboten.

The people who made these value judgments are not lawyers. They are people who, in large part, view typography as an equal partner with words in conveying meaning. And they have their place. They probably are great at writing pretty books like Microsoft Word 2010 Users’ Guide, a book that, if I recall correctly, has pretty blue headings that are larger than the default text size, and lots of pleasant white space all over the page. And that pretty little book is also about ten fucking thousand pages long.  It is not a book whose author appears the least bit concerned about page limits. 

Some of the decisions Microsoft made for you are optional. With great effort, at great personal cost, and with a sense of great affront to your Microsoft font-rabbis, you can restore your default font to tiny little Times New Roman and change all your headers to the same font and color and size as your text. You can adjust your white spaces. But there is one thing those Microsoft Word schoolmarms did that you cannot undo: they changed the meaning of the double-space.

You see, when, in 2007, Stuart J. Stuple – a Microsoft program manager whose “background is in book publishing and education”; see, a schoolmarm who wants you to format like book publishers – was working on changes to Word, he explained Microsoft’s "new spacing" in Word 2007 (which carried over into Word 2010):

We also added a bit of space between each line within the paragraph. Though some folks have described this as "double-spaced," it is actually 115% of the line height (double-spaced would be 200%). You could call this one-and-about-a-sixth spacing if you’d like.

Pay close attention to what Stuple said here.  "Double-spaced would be 200%" of the line height, so double-spacing for a line of 12-point font would be 24 points, and single-spacing would be 12 points.  But "one-and-about-a-sixth spacing" didn’t look great in a pull-down menu, so some programmer or manager decided that it was just as easy to call it "line spacing > single." And twice that – which you could call "two-and-about-a-third spacing" if you’d like – became "line spacing > double."

Remember our courts, though? The ones who have local rules – i.e., things that, for lawyers, are essentially laws – requiring briefs to be "double-spaced"? Stuple’s and his Microsoft book-publishing schoolmarm colleagues' decision to add 15% more white space to the double-spacing format meant that lawyers who selected "line spacing > double" from the Microsoft Word drop-down menu could now cram 15% fewer words into their briefs.

This creates a law-school-exam-worthy interpretation problem: textualism or originalism? Is a local rule a living document? What would Hart say to Fuller, Scalia to Wittgenstein? And with the benefit of this history, it would be easy to say (as I say every time I write a brief), "no matter what Microsoft Word says, single-spacing in a 12-point font is 12 points, and double-spacing is 24 points." But courts don’t bother with the history. They’re busy, and they’re judges, and judges are lawyers of a particular stripe: they don’t see white space as a value judgment; their job is to take words and pretend that those words are invested with a fixed and immutable meaning. And for a judge with a distaste for word-cramming, it’s very easy to decide double-spaced means "line spacing > double." As at least one judge has.

So in at least one courtroom, and perhaps in others, Microsoft’s and Stuple’s prescriptive judgment ("white space looks better") has robbed lawyers of millions upon millions of words, nearly a sixth of their arguments and analogies and string-cites and invective.  Fifteen percent is a large number, felled only because some people who do not practice law think that other people who mostly do not practice law should write pages that look more like books.   

And this result, if it were applied universally, would render many courts’ rules self-contradictory. Take the Central District of California, for example. This is not an insignificant court. It is one of the most populous jurisdictions in the country (New York City at least is split into different courts), and it happens sit atop the headquarters of an industry (and a concentration of others) whose major disputes often are exclusively federal. The Central District has somewhat unusual rules: it demands double-spaced 14-point text (which looks juvenile) and line numbers down the side of the page. But the Central District also says that it permits "no more than 28 lines per page." To get 28 lines of 14-point text onto a page – including the 28 line numbers that the Court requires – one must use 24-point spacing, which is less than even true double-spacing. Yet Microsoft’s "line-spacing > double" option would yield approximately 36-point spacing, allowing about 21 lines of text per page (with one-inch top and bottom margins) – a full quarter fewer lines than the court apparently intended (though one still couldn't get the intended 28 lines with true double spacing).

The only sensible reading of these rules (though one that still wouldn’t fix the Central District’s problems entirely) would be to ignore what Microsoft says "single" and "double" mean. "Single" means that the line spacing is equal to the point size. "Double," as Stuple himself acknowledged, means the line spacing is twice the point size. This would not cause any problems. Contrary to popular belief, a 12-point font with 12-point spacing would not result in the lines touching each other. Try it out – it looks just fine. And 24-point spacing looks better than "line spacing > double," which was solving a problem (insufficient white space in single-spaced paragraphs) that never even existed for double-spacing. But now, thanks to Stuple, Microsoft, drop-down menu economy, and one Manhattan judge, we’ve apparently ceded decisions concerning how much lawyers can say to a company who, as we already knew, doesn’t understand what lawyers do.  Microsoft has taken nearly a third of my words, and I want them back. 

Incidentally, this post was written without page limits.