A Word about Word of the Year

It’s the time of year when word professionals choose words of the year. In this most political of years, it’s no surprise Oxford Dictionaries selected “post-truth” as 2016’s international word of the year.

For those unfamiliar with the word, “post-truth” is defined as “relating or denoting circumstances in which objective facts are less influentional in shaping public opinion than appeals to emotion and personal belief.” Oxford dictionary editors noted a roughly 2,000 percent increase in the word’s usage over 2015 as the United States and the United Kingdom endured political campaigns that kept fact-checkers busy debunking untrue statements.

Another finalist for word of the year also had political overtones: “alt-right.” Oxford defines “alt-right” as “an ideological grouping associated with extreme conservative or reactionary viewpoints, characterized by a rejection of mainstream politics and by the use of online media to disseminate deliberately controversial content.” Another finalist had nothing at all to do with politics. It was “adulting,” a word which, so far as The Scribe can tell, is used primarily by young adults to describe acts they associate with adulthood, such as “I’m adulting so hard I found a job, bought a stationwagon, and acquired a golden retriever.”

The 2016 word of the year might remind some readers of Merriam-Webster’s 2006 word of the year, “truthiness.” That word, coined by Stephen Colbert, described the phenomenon of believing something that feels true, even if it isn’t supported by fact.

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Possessive case names: to italicize or not italicize the apostrophe-s?

Legal writing involves rules large and small. Let’s consider a small one.

Suppose you’re writing a brief involving Miranda v. Arizona, 384 U.S. 436 (1966). Eventually you want to discuss the case’s holding.

Is it Miranda’s holding?

Or is it Miranda’s holding?

In other words, when we write the possessive form of a case name, do we italicize the apostrophe-s?

Yes, my friends, we often do, but we should not. Indeed, the rule is that when any italicized word or phrase is made possessive by adding apostrophe-s, the apostrophe-s is not italicized. For example, it is correct to write “Gone With the Wind’s publication date is 1936” rather than “Gone With the Wind’s publication date is 1936.”

A small detail? Sure. But that type of attention to detail shows the court you pay attention to details.

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The Supreme Court Encounters Dueling Canons and Limiting Clauses

Consider this sentence:

Please bring home cheese, bread, and wine from Zupan’s.

What does this sentence mean? Is it a request to bring home cheese and bread from any store, and wine from Zupan’s? Or does it mean to purchase cheese, bread, and wine all from Zupan’s? I suspect most people would opt for the second option because it makes sense to get the cheese and bread at Zupan’s if you’re going there for wine.

How about this sentence:

She likes parrots, alligators, and puppies with soft fur.

What does this sentence mean? That she likes her parrots, alligators and puppies all to have soft fur? Or she likes parrots and alligators, and also puppies that have soft fur?  I suspect most people would choose the second option because of the biological unlikelihood of finding parrots and alligators with soft fur.

Thus, in the first sentence, the limiting clause at the end of the sentence applied to each item in the series. In the second sentence, the limiting clause applied to only the last item in the series.

These sentences illustrate the problem that arises when a series is followed by a limiting clause. The conundrum is whether the limiting clause applies to every item in the series, or only the last item.

In Lockhart v. United States, issued this week, the Supreme Court of the United States addressed this problem. The Court was asked to determine the meaning of a criminal statute providing an enhanced penalty for persons having a prior conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward * * * .”

The question was whether the limiting phrase “involving a minor or ward” applied to each of the preceding phrases (“aggravated sexual abuse, sexual abuse, or abusive sexual conduct”), or to only the last in the series (“abusive sexual conduct”).

Before reading further, decide for yourself. Done? Let’s move on.

The Court split 6-2 on the issue. Justice Sotomayor’s majority opinion held that the limiting clause applied to only the last item in the series. Justice Kagan’s dissenting opinion interpreted the statute to mean that the limiting clause applied to each of the three items in the series.

The majority relied on the “rule of the last antecedent.” That rule provides that where a list of terms or phrases is followed by a limiting clause, the limiting clause should be read as modifying only the noun or phrase that immediately precedes it. The dissent relied on a different (and conflicting) canon of statutory interpretation: the series-qualifier canon. That canon provides that where there is a parallel construction that involves all nouns or verbs in a series, a modifier at the end of the list normally applies to the entire series.

Both opinions make good points and a reasonable person could read the statute to have either meaning. The real lesson in Lockhart is that the careful writer should avoid the problem by making clear whether the limiting clause applies to each item in the series, or to only the last item.

For those interested in learning more, a copy of the decision can be downloaded here.

Lockhart v United States

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Don’t Be a Fool about Periods, Commas, and Quotation Marks

Grammar and punctuation involve many rules. As a general rule, The Scribe is no fan of rules. As Thoreau said, “Any fool can make a rule, and every fool will mind it.” Yet, in matters of writing, some rules must be observed because the consequence of ignoring the rule is that the writer dons the jester’s hat and looks the fool.

The Scribe recently reviewed an appeal brief prepared by a leading member of Big Law, the kind of place that would have summarily rejected The Scribe and his humble pedigree. Given the firm’s reputation, it came as a surprise that the brief consistently violated one of the unyielding rules of punctuation: the comma and the period always go within the closing quotation mark.

The Scribe can find some sympathy for the brief’s hapless author because the rule makes no sense. This should be the rule:

If the comma or period is part of what is being quoted, it goes inside the quotation mark.
If it is not part of what is being quoted, it goes outside the quotation mark.

That would be a sensible rule. But it’s not the rule. Instead, the comma and the period always go inside the quotation mark, even when the original quotation does not include the comma or the period.

Some rules may be ignored. This isn’t one of them. Although it is sensible to disagree with the rule, it is not sensible to ignore it—that would be foolish.

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“They” have chosen the Word of the Year

The American Dialect Society’s word of the year is “they” as a singular pronoun.

This has been coming for a while. Standard grammar demands that “they” must be used with plural antecedents, such as this example: “Music lovers were saddened when they learned of David Bowie’s death.”

But when it comes to singular pronouns, there are only two choices: he or she. English lacks a gender neutral singular pronoun. For reasons I don’t know, but can probably guess, the default rule has been that where a sentence calls for singular pronoun describing a generic, unknown antecedent, the male pronoun is used: “Every voter must do what he can to become informed about the issues.”

That rule has been under attack for at least 20 years, leading to a variety of clunky alternatives, such as “he/she,” “he or she,” or “(s)he.”

In response to these unsatisfactory alternatives, writers have begun using “they” as a singular pronoun despite the fact such usage violates standard grammar. But as often happens with English, what began as a nonconventional usage has started gaining broad acceptance. The American Dialect Society’s award recognizes the emergence of “they” as an acceptable singular pronoun. Similarly, in 2015 The Washington Post style manual changed to allow using “they” as a singular pronoun. Most official style manuals still reject “they,” but there’s a pretty clear trend toward acceptance.

What should you do? The Scribe still prefers to avoid the problem by writing around the need for a singular pronoun that doesn’t describe a specific person. But where it’s unavoidable, “they” seems a preferable alternative to “s/he,” or “he/she.” If it’s good enough for The Washington Post, I can live with it.

And if you’re interested, other finalists for word of the year included “ammosexual,” “ghost” (as a verb, meaning to abruptly end communication), and “on fleek” (a term I admit to having never heard).

You can read about all of the awards here: http://www.americandialect.org/2015-word-of-the-year-is-singular-they

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The Bench, the Tablet, and the Descriptive Heading

The judges we appear before, and importantly who receive our written work, are likely to use tablets for reading our briefs. Does this mean we should alter our approach to writing briefs? From what I’ve heard, the answer is “yes.” Most judges agree it is harder to understand an argument when read on a screen instead of paper. Fortunately, there are simple techniques to make our arguments easier to understand, even when read on an iPad.

Keeping track of arguments

Judges often remark that when reading a document in electronic form, they often lose track of where a specific argument fits within the overall argument, as well as where the particular argument is supposed to be going. Part of the problem is that it’s harder for the reader to move around inside an electronic document than a paper document, which makes it difficult for the reader to look back to see how a specific point fits within the larger argument.

Judges want descriptive headings

Judges suggest liberally using descriptive headings. Judges find that frequent headings provide useful guideposts that assist with understanding and following an argument’s progression. Think of it like driving at night down an unfamiliar road. Although you might think you know where you are and where you’re going, the occasional route marker provides welcome confirmation of the direction you’re headed.

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Fair Well, Fare Well, or Farewell?

This week we discuss a word—farewell—that is used to express good wishes when parting (the correct spelling of the word is “farewell,” not “fair well” or “fare well”).  According to one online source, the word was first used by the Vikings and derives from the Norwegian words “far vell,” which means “travel good.”  Another source says that “fare” comes from the Middle English word faran, which means “to journey.”

But whatever its source, the word is nice, warm way to say “goodbye.”

That is all for now …

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