Category Archives: Exemplary Writing

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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Episode V: The Bullivant Scribe Strikes Back!

While watching “The Empire Strikes Back” last night, I was appalled by the ruthless way in which Yoda butchered the English language. I know, I know . . . Yoda is a Jedi Master, he is really old, and he deserves our respect. But still, someone must stick up for our language—no matter who does the butchering (or how awesome he is with a saber made of pure energy).

As the Scribe has patiently explained before, standard English sentences should follow a subject-verb-object order. (“Ahh . . . father. He was a powerful Jedi. Powerful Jedi.”) But Yoda shifts around sentence elements, generally using an object-subject-verb word order. (“Ahh . . . father. Powerful Jedi was he. Powerful Jedi.”)

So I challenged Yoda to a contest. But the diminutive master of the Force hasn’t responded to my challenge, and I simply haven’t the time to go to Dagobah. Which means that you, my loyal readers, must decide whether you prefer the original Yoda sentences—or the Scribe’s edited version of those sentences. The sentences are set out below, first in Yoda-speak, and then in the Scribe’s revised versions. Using the poll below, vote for Yoda or the Scribe. Before my post next week, I’ll let you know how badly I crushed the little master.

  • Try not. Do … or do not. There is no try. [Yoda]
  • Do it . . . or don’t. [Scribe]

 

  • Size matters not. Look at me. Judge me by my size, do you? And well you should not. For my ally is the Force, and a powerful ally it is. [Yoda]
  • Size is irrelevant. Especially when you have a cool ally like the Force. [Scribe]

 

  • Ready are you? What know you of ready? For eight hundred years have I trained Jedi. My own counsel will I keep on who is to be trained. [Yoda]
  • I’ve been training Jedi for 800 years. So I think I’ll go with my opinion about your readiness, not yours. [Scribe]

 

  • Decide you must, how to serve them best. If you leave now, help them you could; but you would destroy all for which they have fought, and suffered. [Yoda]
  • It’s a tough choice. You can leave and help them—but that would undo everything for which they fought and suffered. [Scribe]

 

  • Look I so old to young eyes? When 800-years-old you reach, look as good you will not. [Yoda]
  • You won’t look so good when you’re 800, youngster. [Scribe]

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Squib: in defense of free speech.

The following is a portion of Ninth Circuit Chief Judge Kozinski’s concurring opinion in U.S. v. Alvarez, 638 F.3d 666 (9th Cir. 2011).  It is a wonderfully written defense of free speech (all internal citations have been omitted for readability):

According to our dissenting colleagues, “non-satirical and non-theatrical [ ] knowingly false statements of fact are always unprotected” by the First Amendment. Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone’s harmed” nor “if it’s made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.
 
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny,” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”
 
What the dissenters seem to forget is that Alvarez was convicted for pure speech. And when it comes to pure speech, truth is not the sine qua non of First Amendment protection. That the government can constitutionally regulate some narrow categories of false speech—such as false advertising, defamation and fraud—doesn’t mean that all such speech falls outside the First Amendment’s bounds. As the Supreme Court has cautioned, “In this field every person must be his own watchman for the truth, because the forefathers did not trust any government to separate the true from the false for us.” Yet the regime the dissenters agitate for today—one that criminalizes pure speech simply because it’s false—leaves wide areas of public discourse to the mercies of the truth police.
 
Alvarez’s conviction is especially troubling because he is being punished for speaking about himself, the kind of speech that is intimately bound up with a particularly important First Amendment purpose: human self-expression.      * * * Speaking about oneself is precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tall tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all.
 
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
 
And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?
 
Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment. Americans tell somewhere between two and fifty lies each day. If all untruthful speech is unprotected, as the dissenters claim, we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.
* * *
Political and self expression lie at the very heart of the First Amendment. If the First Amendment is to mean anything at all, it must mean that people are free to speak about themselves and their country as they see fit without the heavy hand of government to keep them on the straight and narrow. The Stolen Valor Act was enacted with the noble goal of protecting the highest honors given to the men and women of our military, but the freedoms for which they fight include the freedom of speech. The ability to speak openly about yourself, your beliefs and your country is the hallmark of a free nation. Our decision not to rehear this case en banc ensures the First Amendment will retain its vitality for another day—and, hopefully, for always.

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