Still More on Justice Scalia’s Footnote

Eugene has a somewhat different take on Justice Scalia’s now-infamous footnote than I did . . . He writes

[M]y sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

Well, I certainly agree with that “useful rule” — always decode abbreviations just in case you’re reader doesn’t know them.  If you’re talking about the DMCA, or ISPs, or SOPA, or the VAT, or NSAID drugs, or the POSITA, or . . . tell the reader what you mean.

But I do think that an abbreviation in a party’s name calls for relaxing that rule – unless for some reason it actually matters for the case.  WRKO, Inc. v. FCC — would we expect the lawyers to tell the court that “RKO” was chosen because it stands for “Radio Kingdom of Ohio,” or “Rachel Kelleher O’Brian,” or “Random Kowtowing Operaphiles”?  And would it be appropriate for the court drop a footnote like Scalia’s if the lawyers didn’t  explain its origins?   Does Exxon, Inc. have to explain where its name came from?  [And, to satisfy the judges, how to pronounce it?!**]

Though I don’t want to make more of this than one should make of it, I do think there’s a point of some importance here.  The rule that trumps Eugene’s “useful rule” is: you can call yourself whatever you  please,  for reasons you want to make public or for reasons you don’t want to make public or for no reason at all.  It’s just none of the court’s business – unless it has some relevance to the issues raised in the case.


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