Orin’s post about the use of “orthogonal” in a Supreme Court argument brings back memories: I used to like using “orthogonal” in that sense, too, perhaps because of my background with math. Then one day my father, who knows perfectly well what the term means — in his university days, he came up with what he called an “orthogonal basis method” for solving linear equations — saw it in a computer program user’s manual I was writing, and suggested I remove it; lots of people won’t know what it means, he told me. But the word is so apt here!, I said. Not if people don’t understand it, he said.
Of course he was right — as the lawyer in the story that Orin described learned, to his cost. (It sounds like the Justices weren’t much upset with the lawyer, and they did figure out what the word means; but it was a distraction from the lawyer’s point, and took up time that could have been used for substantive argument.)
Steve says:
This cautionary advice applies to questions of grammar and word choice, as well. As an advocate, it’s a bad thing for you if the court is distracted from your point, which means that your writing or your oral argument may be poorly executed even if they are technically flawless from an English teacher’s standpoint.
For example, Prof. Volokh sometimes posts on the question of whether a given word is a “real” word or not, often concluding that the word should be considered real even though some people disagree. But if your judge feels otherwise, and is distracted from your point by something that appears out of place, you’ve failed to accomplish your goal as an advocate even if you were right and he/she was wrong. Sometimes you need to rewrite a perfectly correct sentence just to eliminate any possibility of misinterpretation.
Laymen and young lawyers often believe that “talking like a lawyer” involves a lot of complex sentences and big words like orthogonal. For the most part they’re wrong, at least if their goal is talking like a good lawyer. Clarity is the overarching goal.
January 11, 2010, 7:21 pmShelbyC says:
Unless your argument sucks. :-)
January 11, 2010, 7:32 pmArkady says:
Well, damn, and all these years I’ve thought ‘orthogonal’ had something to do with correct sex. Live and learn, live and learn.
January 11, 2010, 7:33 pmsounds better in writing says:
The word is better used in writing than at oral argument. It might cause the reader unfamiliar with the word to mull over its meaning for a moment, but the meaning is easily deducible from the context — that was my experience at least, when I first came across it.
I like the word, and use it from time to time. It’s effective when effectively deployed. I don’t think there’s a synonym for it that is as adequate to the task.
Incidentally, I learnt the word from someone with an engineering/programming background whose writing style I much admire. If it’s good enough for him (no fan of verbiage), it’s good enough for me.
January 11, 2010, 7:51 pmSwan Trumpet says:
You must have been thinking of that fake word masquerader: orthogonadal.
January 11, 2010, 7:54 pmCurt Fischer says:
If I were a lawyer preparing for a case, I would agree with the assessment of Prof. Volokh’s father. You aim to use words that the judge of your case will understand. To paraphrase a former SOD, you don’t argue the case for the Justices you wish you had, you argue the case for the Justices you have.
But, as a citizen, this story makes me lament the Justices we have. They don’t understand “orthogonal”? This makes me sad. I’m also sad that they apparently feel it is appropriate or useful to joke about their own poor vocabularies at oral argument.
January 11, 2010, 7:59 pmArkady says:
“Think with the learned, speak with the vulgar.” Words we can all live by, I’d think.
January 11, 2010, 8:09 pmEugene Volokh says:
Curt Fischer: Are you also sad that many mathematicians don’t understand legal terms (for instance, mens rea, which I suspect most mathematicians understandably don’t know)?
January 11, 2010, 8:11 pmsounds better in writing says:
To be fair, Scalia seemed to express delight at having learned a new (and potentially useful) word. The joy of an ardent wordsmith.
January 11, 2010, 8:15 pmCurt Fischer says:
Prof. Volokh,
First, I don’t think of “orthogonal” as exclusively a term of mathematical jargon. I have encountered it often enought in “lay” writings.
Second, yes, I am sad that many mathematicians don’t know legal terms. Aren’t you?
January 11, 2010, 8:25 pmCurlyDave says:
I take a contrary view.
The point was made, and will be long remembered due to the vocabulary lesson.
January 11, 2010, 8:34 pmAnthony says:
Orthogonal isn’t exclusively mathematical jargon, but pretty much all uses are technical in nature. It is, however, a rather useful word that has no good non-technical replacement that I know of — as used in the argument, it appears to be a synonym for the equally technical term independent (two values are orthogonal if you can change either one without affecting the other). I guess you could also replace it with ‘irrelevant’.
January 11, 2010, 8:35 pmSwan Trumpet says:
Generations ago it was mandatory for the educated to learn Latin. Mens rea is Latin and many words including orthogonal have Latin roots. Knowledge of Latin offers a bridge of communication across professional spectrums in the sciences, medicine, mathematics, and law.
January 11, 2010, 9:52 pmRick Rockwell says:
I’m disappointed that not everyone knows all the words I know.
January 11, 2010, 10:15 pmSammy Finkelman says:
The word isn’t better known because it’s not really needed.
Only a college professor in love with extremely terse terms, and/or someone wanting to avoid something that sounds too colloquial would prefer “the issue is entirely orthogonal to the issue at hand” to “The issue is irrelevant”(which perhaps sounds too dismissive) or “it doesn’t matter how that issue is decided” or “regardless of how that issue is decided” or “there is no difference in this case no matter how that issue is decided”
“Orthogonal” does squeeze all the emotion out of that concept, though. But it’s really the wrong word anyway. Orthogonal simply doesn’t mean immaterial or irrelevant or besides the point.
January 11, 2010, 10:24 pmEvilDave says:
Yes, I think that is the problem.
If you know and commonly use something (word, line of reasoning, etc.) you tend to forget that others don’t understand your terms/argument.
Example, I was discussing encryption with another professional and, based on their counter-argument, it suddenly dawned on me they had no clue how email works. Car guys forget that not everyone cares how an internal combustion engine works.
As an old boss of mine said, “As you get older you’ll be less surprised by what you know, than by what those younger than you don’t know”.
We pick up pieces of information and get so comfortable with them that we forget others may not have those pieces of information too.
Asking that a lawyer know what words the Justices don’t know is an impossible standard.
January 11, 2010, 10:34 pmMichael Alexander says:
I think CurlyDavy has it right. This was a funny exchange. Even if Prof. Volokh is correct that the conversation distracted from the point and the lawyer missed some argument time – the flip side is that the justices all laughed and will probably relate and remember him more than the other side. No chance that a justice would make a decision on the basis of who made them laugh? Well, we are talking about nine people who are so foolish they don’t even know the word oxoconeical … oxygenical … oxymoronical … well, you get the point.
January 11, 2010, 10:56 pmlaw student says:
I had a law professor who always uses the word “orthogonal” so I actually just assumed it was common in legal rhetoric. I guess maybe just among law professors?
January 11, 2010, 11:03 pmN.B. says:
Credited.
January 11, 2010, 11:17 pmFrater Plotter says:
Greek, actually — from ὀρθός γωνία meaning “straight (or correct) angle”.
January 11, 2010, 11:33 pmSteve says:
The flip side is that the justices all laughed and will probably relate and remember him more than the other side.
The way it all played out, maybe you could argue it was a net positive for him, who knows. But when you use an unfamiliar word, or a grammatical construction that some might consider incorrect, you don’t have any way of knowing that it will turn into a humorous sidebar.
The point is not that a judge might find a typo in your brief and consciously think, “This lawyer is sloppy! I’m now going to discount everything he says!” The point is that the judge was caught up in reading or listening to your point, you hopefully had his attention with that argument you took such care to craft, and all of a sudden there’s a distraction and he’s snapped out of it. That’s not what you want.
January 11, 2010, 11:39 pmJeff Walden says:
As I said in the other thread, I really don’t think “orthogonal” is such a technical word. It’s a fairly basic high school, maybe early college-level geometry/linear algebra term. It’s also not a distinctly mathematical term. I would have analogized it to “catalyze” or “symbiotic”, as a word with a specific technical meaning in one field which I’d understood to have escaped those technical boundaries and entered intelligent mainstream vocabulary.
And no, I don’t think mens rea is analogous to orthogonal. “Orthogonal” has a meaning which is readily applied in non-mathematical contexts; how might I use mens rea other than in the precise legal manner? I can’t think of a non-legal context where it’s plausibly usable. If I were to choose an analogous word from chemistry, I might choose “titration” or “ligand”, both of which are basic terms in high school and college-level intro inorganic chemistry but which I wouldn’t expect to see outside of that context, and not because their intrinsic meanings lack adaptability to other circumstances. (As a very rough data point you might also consider that orthogonal picks up twenty times more hits than mens rea in Google.)
January 12, 2010, 12:04 amMichael Bilow says:
Robert Barnes of The Washington Post picked this up.
In my mathematical and engineering experience, the metaphorical meaning of “orthogonal” usually connotes cleanliness and elegance. In particular, the machine language of a particular type of computer processor is said to be “orthogonal” when it is not burdened with a lot of arcane or overlapping special cases, the idea being that the programmer is not constantly worrying about reserving resources. For example, if a machine allows an addition operation on any register but only allows a multiplication operation on one specific register, the programmer has to avoid using the multiplying register for addition which, although legal, would make it unavailable should it be necessary to multiply something. By contrast, a machine that is designed so that all operations are available on all registers would be said to have an “orthogonal” instruction set.
This is, interestingly, not at all the meaning that Attorney Friedman intended to convey. He was not wrong in a mathematical sense, where “orthogonal” is roughly the equivalent in space of more than two dimensions to “perpendicular” which is specific to two-dimensional space, but his analogy of irrelevancy was intended to imply a negative connotation exactly opposite to that usually found in engineering jargon. In other words, it is a _good_ thing for a computer programmer when the choice of machine register is irrelevant, so that a choice made at one point does not constrain a later choice.
January 12, 2010, 3:53 amchiMaxx says:
And how do good words like orthogonal become widely used and understood if people refuse to use them because they are not widely used and understood?
January 12, 2010, 7:35 amcorneille1640 says:
Agreed.
This is also useful to remember for anyone who teaches. One of the (many) things I had to learn to deal with when I taught history as a college adjunct was that while I had been studying history for most of my adult life, my students were probably new to the subject. They didn’t necessarily know (or care) about the First Bank of the United States or the Sherman Antitrust Act.
January 12, 2010, 8:19 amDave Hardy says:
I’ve never been told how many sides an orthogon has.
To make the expression popular, the speaker has only to convince Justice Dept of its necessity. For the last 20 years, for example, they have been unable to write a brief without using “quintessential” or however it is spelled. In 2006 I came across a Justice brief that did not use that term, so perhaps the addiction is ending.
January 12, 2010, 8:52 amSeaDrive says:
“That issue is not in the decision space.”
January 12, 2010, 9:11 amegd says:
I think something that others have overlooked here is the reason why the professor resorted to using the word “orthogonal” when he could have used a much better phraseology: lawyerisms.
But lawyers generally don’t like to read, or write, short, clear sentences. And judges even less so. So we get lawyers trying to sound intelligent by using big words, when they could sound more intelligent by learning to be effective communicators.
January 12, 2010, 9:22 ambearing says:
Prof. Volokh’s dad “came up with” the orthogonal basis method?
January 12, 2010, 10:01 amCato The Elder says:
I’ve always understood orthogonal to mean “independent” not “irrelevant”, though, depending on how broad you intend your analysis of whatever question to be, both understandings might be practically equivalent. Someone grilling you on a perceived flaw in a proposal might be told to “wait a minute, that issue is orthogonal to the point I’m trying to address at the moment.” Indeed, I’ve always thought the colloquial usage was derived by analogy to its mathematical usage, where pairwise orthogonal vectors in a vector space are known to be “linearly independent.”
January 12, 2010, 10:25 amBill says:
I use orthogonal in my technical work when I need to say that term, specifically (e.g., Gene’s Linear Algebra example). Otherwise, I like to use more “common” terminology when I need “cross-the-T” or “shoot off at a right angle,” or the like. Language is jargon-ey enough as it is. You can still be “loquacious,” flowery, and colorful in your writing and still use Plain Jane English. Otherwise you become something of a snooty popinjay.
January 12, 2010, 10:52 amTomH says:
Frankly the use is confusing without further context, because it means both “right” or “correct” (the right or correct angle being 90 degrees for those of us who are not ancient, Greek scholars), but it also means, apparently I have never seen the use, one line (or line of thought, here) lying at 90 degrees (read totally incorrect) to the other line or line of thought.
Compare, orthopedics: it is the art of “making the child right” or “correct” or “straight” in this sense. The origin being the method developed in the 18th century, to straighten the posture of children who had been sick. Also compare orthodontics – straightening the teeth.
Thus, IMHO using orthogonal is ambiguous at best, and its most common usage (outside law professors) is to indicate a correct thing, not an incorrect thing.
January 12, 2010, 10:54 amJay says:
“But, as a citizen, this story makes me lament the Justices we have. They don’t understand “orthogonal”? This makes me sad. I’m also sad that they apparently feel it is appropriate or useful to joke about their own poor vocabularies at oral argument.”
I don’t really see this as a vocabulary word that should be known by all educated people, though–it’s more the sort of law-professor buzzword/mannerism that comes and goes in cycles of a few years, like starting sentences with “so,” or “pushing back” against arguments.
January 12, 2010, 11:00 amSwan Trumpet says:
Great point. Justice Scalia is known as a master wordsmith – not for his use of archaic or obscure words – but for his ability to effectively and succinctly make his points in plain speech. To get an idea of just how masterful Scalia is at this, read his dissent in the 2001 case PGA Tour, Inc. v. Martin.
Scalia’s amusement probably had nothing to do with admiration, but with the image of Prof. Friedman, thesaurus in hand, searching for the most obscure word to fumble his argument. It was a gaffe.
January 12, 2010, 11:14 amJacob T. Levy says:
I’m surprised! I thought that “orthogonal” in this sense was in very widespread use among educated people, with the only problem being that many of them didn’t understand its geometric meaning. I don’t know why or when “orthogonal” did but “perpendicular” did not take on this added meaning, but I like it too much to give it up…
January 12, 2010, 11:55 amD says:
I think he should stick to “ossification”
January 12, 2010, 12:11 pmD says:
Orthogonal doesn’t have its “irrelevance” sense in any of the general purpose dictionaries I viewed, including the OED. However, it is listed at the VERY bottom of the dictionary.com page, citing the Free On-line Dictionary of Computing.
http://dictionary.reference.com/browse/orthogonal
January 12, 2010, 12:17 pmAnthony says:
I believe that the orthogonal = independent (irrelevant) usage comes out of the usage of the term in statistics, via a couple of linguistic jumps (though I hadn’t realized the usage was as obscure as it apparently is).
In geometry, coordinates in N-dimensional space are defined in terms of N mutually orthogonal lines.
In physics, each of those coordinates is known as a degree of freedom. In thermodynamics, it also refers to a number of other independent variables.
In statistics, a degree of freedom is used to refer to an independent (zero correlation) variable, probably due to mathematical statistics being heavily related to statistics.
Thus, if two variables are orthogonal, they are independent, and thus the truth of X is irrelevant to whether Y is also true.
January 12, 2010, 12:38 pmSwan Trumpet says:
Cornell University Law School maintains a website that allows searches of Supreme Court decisions by word. A search for ‘orthogonal’ turns up zero results, and a search for ‘irrelevant’ supplies over 1100 results.
Advice for Prof. Friedman: Next time, put down your thesaurus and do a web search. If the Justices have never used a particular word in their published opinions, follow their lead.
January 12, 2010, 1:20 pmarch1 says:
Orthogonality isn’t something that SC justices should snigger at being ignorant of. More than just a fancy way of being dismissive, it’s an extremely useful concept in many areas.
One needn’t be a software developer, for example, to appreciate the power of spreadsheets and databases; but these owe much of their utility to the orthogonality inherent in their respective design paradigms.
Want something more tangible? Consider orthogonality as it relates to (say) automobile climate controls. If your car is like mine, it has separate controls for temperature, fan speed, source, and output.
To a human factors engineer, the independence of these controls is a critical design goal, because it enables you the driver to a) easily understand and use the controls with minimal distraction from your driving responsibilities, b) quickly reach any point in the underlying system’s design space via suitable settings of a small number of controls. The simplicity and power resulting from the controls’ orthogonality is more than a nicety; it just may have saved your life.
So in response to the sniggering justices: Orthogonality, far from being an arcane concept of interest only to math profs, is such a massively useful enabler of intellectual mastery and control that anyone interested in understanding and simplifying a complex domain should …
um, never mind.
January 12, 2010, 2:33 pmMichael Bilow says:
My classic example of non-orthogonal bad engineering in everyday life that everyone immediately understands is a shower control that does not allow adjusting temperature and flow separately, so that if you want the water hot you are forced to set the flow to dead maximum as well; I absolutely hate that.
January 12, 2010, 2:42 pmOrthogonal « Blog Test says:
[...] Eugene Volokh and Orin Kerr have interesting blog posts on the word “orthogonal”. [...]
January 12, 2010, 3:11 pmJeff Walden says:
I can imagine a law-themed comedy sketch around this moment where a “Prof. Friedman” halts his argument mid-sentence to pull out a thesaurus to look up a precise word to use, eventually coming up with something either incredibly outlandish or incredibly dim-witted. :-)
But seriously, I don’t think it even occurred to him the term might possibly be so esoteric the justices wouldn’t have heard of it. Wouldn’t have to me, or to a bunch of other commenters here….I also highly doubt that he had previously planned to use the word in his argument; it just happened to be the word his brain found when it was reaching to construct an answer.
January 12, 2010, 3:37 pmdcperson says:
My guess is that Friedman didn’t go searching for the word, but that it’s simply a part of his (very educated) vocabulary. I didn’t know it prior to the thread (and feel slightly reassured that I’m in the company of a few SCOTUS justices, despite the frequent protests in this thread that every educated person should know the word).
Anyway…just a thought. Presumably, he needed a word meaning “orthogonal” and oddly enough, that’s the word that came to his head. Me…I would have thought of something like irrelevant or not on point.
January 12, 2010, 3:45 pmzippypinhead says:
I mentioned in the thread following Professor Kerr’s post that, from my own experience years ago at the University of Michigan Law School (where Friedman’s been teaching for 20-some years), this may be an example of the legal version of a “micro-regional-dialect.” I remember this word being used from time to time by at least a couple of Michigan law professors when I was a law student. I bet Professor Friedman never realized until yesterday just how unusual the word is in a legal context.
Incidentally, in the classroom at Michigan, “orthogonal” was a polite adjective used when the professor needed to suggest that a student’s (or Supreme Court Justice’s) analysis had just gone off on an irrelevant tangent and totally missed the point.
January 12, 2010, 4:02 pmlgm says:
Anthony,
The term “orthogonal” in statistics is the same as the term in physics, meaning that the inner product (a technical thing) is equal to zero. The natural inner product in the statistical setting is the covariance. Two statistics are orthogonal if their covariance is equal to zero.
And allow me to add a professorial quibble. Two statistics can have zero covariance (i.e. correlation coefficient equal to zero) without being independent. To be fair, some statisticians use “orthogonal” informally to mean independent rather than merely uncorrelated. But technically, that is incorrect.
January 12, 2010, 5:03 pmPintler says:
Indeed. In the usage I am familiar with, ‘That’s an orthogonal issue’ is perhaps gentler and less dismissive than a curt ‘You point is irrelevant’. It’s sort of like a doctor referring to parts of one’s anatomy as ‘adipose tissue’ instead of ‘fat’ :-).
January 12, 2010, 6:15 pmbbbeard says:
I’m not sure I accept the premise [basic assumption] of much of this discussion [words back and forth] — that there are words that are so abstruse [hard to understand] that they should be avoided in oral argument [when lawyers talk to judges].
I have read that between the ages of 2 and 18, the typical English speaker learns a mean [an average] of ten words per day. At my age, this rate has slowed to 1 or 2 per month. But it is not zero [none], and I hope it will remain non-zero [not none] for quite awhile. I find it abhorrent [creepy] to think that we are ruled by folks who cannot acquire vocabulary [learn new words], or for whom the scales of justice are tipped in favor of ignorance.
We’re not talking about words like “hemochromatosis” or “psephology”. “Orthogonal” is a word taught to every high school student in America. Its meaning is so transparent [easy to understand] that elaboration [further explanation] is gratuitous [unnecessary].
Once again, I find that my favorite bloggers are lawyers, albeit [although it be the case that] I’m glad I am not one of their ilk [kind].
BBB
January 12, 2010, 6:55 pmSwan Trumpet says:
You paint an amusing picture, but Prof. Friedman – even if very fond of the word – surely has encountered many quizzical expressions when he has used it prior to his appearance before the Court.
Last October the Court issued an updated “Guide for Counsel” and the section on Oral Argument hammers away at their preference for careful preparation and brevity. There’s high praise for counsel who do not use up the allotted 30 minutes and the Guide specifically warns against using terms the Court may not be familiar with.
If that isn’t enough, the new guide also recommends arguing counsel read Making Your Case, the Art of Persuading Judges, by Justice Antonin Scalia and Bryan Garner; Chapter 14, Oral Argument, Supreme Court Practice (9th ed.), by Eugene Gressman, Kenneth Geller, Stephen Shapiro, Timothy Bishop, and Edward Hartnett.
January 12, 2010, 7:47 pmJeff Walden says:
Hey, I’m not disagreeing that the word wouldn’t/shouldn’t have been used, if what’s known now had been known then. I just don’t think it’s reasonable to expect the word to have been considered plausibly problematic (particularly in an on-your-feet response to a question), nor do I think it’s reasonable to believe he “surely has encountered many quizzical expressions when he has used it” before.
January 12, 2010, 9:04 pmSwan Trumpet says:
The transcript shows Prof. Friedman used the word as part of his prepared remarks. The questioning began when Justice Roberts interrupted to ask about it.
If you’re correct that the people Prof. Friedman speaks to are all familiar with the word ‘orthogonal’ than the only conclusion we can draw is that those people are a different sort of people than those who have been writing Supreme Court Opinions. The Cornell Law database shows that never in history has the word ‘orthogonal’ been used in a Court Opinion.
As to Justice Scalia’s reaction, he also was highly amused by a counsel who had difficulty finding a particular page in his notebook. Scalia’s reaction was to laughingly inform counsel “Just yell out BINGO when you locate it.”
I don’t think it’s safe to assume that because Justice Scalia is amused by something, that it means he is favorably impressed by the counsel who prompted his amusement.
January 12, 2010, 10:18 pmRich Friedman says:
I’ve hesitated to enter this discussion, because (a) I never want to give the impression I’m litigating my case in the media or through blogs, and (b) I sure don’t want to get involved in an ongoing debate about this. But I think the subject is sufficiently removed from the substance of the case that I’m safe on the first score, and I’ll try to restrain myself on the second. So just a few points:
1. I think the sense in which I intended to use the word was in fact precisely the one identified by Michael Bilow, “that a choice made at one point does not constrain a later choice.” That’s not necessarily good or bad; it just means, “What you do here on the issue presented by this case doesn’t have any bearing on what you do later on the issue you’re now asking me about.”
2. This was not part of prepared remarks. I gave about one paragraph of truly prepared remarks and then the questioning began. I believe I did use the term in a moot, in the same context. I don’t recall getting quizzical looks then, though of course it’s possible I was too dumb to notice them.
3. I am not, however, so dumb that in arguing before the Supreme Court I would use a term that I thought might confuse them or in any other way interfere with me getting my point across. The term is commonly used, in the sense in which I used it, in legal — and as I gather non-legal — academic discourse. The fact that it was evidently not familiar to some highly intelligent justices shows that we academics are in more of what a friend has called a “linguistic bubble” than I realized. If I knew then what I know now, I’m sure I would not have used the word; I would have said something slightly less economical, or at least less metaphorically pungent (see below) like, “That issue and the one presented by this case have no bearing on each other.” But I don’t expect to lose any sleep over this; I doubt any harm was done.
4. No, I did not just pick this word up recently. In fact, this whole thing reminded me of a piece I drafted many years ago, but never published, called A Spatial View of Law. It’s all about spatial metaphors in legal discourse — yes, including orthogonality. I think I might just try to get that baby ready for publication now.
January 13, 2010, 5:55 pmSwan Trumpet says:
Prof Friedman,
Thank you for sharing your insights. Your intelligence was never in question; dumb attorneys are not given the privilege of arguing before the Court.
Although it’s entirely orthogonal, I’d like to express admiration for how you handled the matter when you described your “professorship” as creeping into your argument. That was brilliant and showed how quickly you adapted to an unexpected snag.
January 14, 2010, 12:35 pm