Archive | Language

An Unpersuasive Word

“Obviously.” In my view, the word “obviously” should only be used in arguments when the point asserted is generally beyond debate. Consider an example. When discussing judicial nominations, you could say, “Obviously, Obama has the constitutional authority to nominate anyone he wants.” The word signifies that the point is a shared view that isn’t genuinely controversial. It helps the reader by announcing that you’re just establishing common ground.

“Obviously” tend to be an unpersuasive word because it is rarely used this way. Especially on the Internet. Most of the time, the word is used when the author has strong feelings. A view passionately held becomes so central to the speaker that it seems obvious to him. For example, “Obama is bad for America” becomes “Obama is obviously bad for America.” This usage usually backfires because it suggests the author doesn’t know or care about the views of anyone else. That is, the speaker is so wrapped up in his own perspective that he confuses the intensity of his own belief with its persuasiveness to others. Folks who are closed to the views of others don’t make very good advocates: The come off as cranks. So use “obviously” with caution.

UPDATE: Several commenters bring up the use of “obviously” in legal arguments specifically, especially in briefs. It’s much the same problem, with a slight twist: Some lawyers use words like “obviously” and “clearly” in briefs out of a sense that perhaps their apparent personal conviction and spirit will itself persuade the court. If a lawyer feels so strongly, the thinking goes, perhaps the court will assume that there must be truth behind the claim. But this always backfires: Judges more than anyone know that lawyers are advocates. As the saying goes, “When you have the facts on your side, pound on [...]

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Spurious Grammatical “Rules” of Every Sort Are My Abhorrence

Earlier today, I posted quotes from prominent authors who use “them” with formally singular terms such as “everyone.” A commenter had earlier complained that “Already constructions like these are ubiquitous among high-school age writers, and sanctioned by their teachers.” I pointed out that they were apparently sanctioned by leading writers as well.

A commenter suggested that perhaps the quotes given above were just isolated errors on the authors’ part: “Even great writers commit infelicities on occasion. If you are telling me that Jane [A.] did this all the time, that would be meaningful.” Feeling the desperate need to procrastinate this morning, I decided to put that theory to the test, by doing some Google Books searches through the works of the notorious language-mangler Jane A., whom I mentioned above.

I won’t bore you with all the details and citations, which you yourself can uncover by searching for “everybody” with author Jane A. (despite her obvious inability to grasp the inexorable logic of the English tongue, she’s pretty famous, so you can probably deduce her last name). But suffice it to say that I found not one “everybody” matched with a singular pronoun — maybe there were some, but in that case I missed them — and several matched with “them.” “Everybody had a right to be equally positive in their opinion.” “Everybody had their due importance.” “If everybody was to drink their bottle a day.” “Their new dining-room prepared everybody for their keeping dinner-company.” “Everybody said, they never saw so fat a haunch.” “Everybody has their taste in noises as well as in other matters.” And there are more.

Incidentally, Jane A. consistently uses everybody with the singular forms of verbs, e.g., “everybody is.” Yet she apparently sees nothing wrong with at the same time using the pronoun “they,” including [...]

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Kids These Days

A commenter writes:

Well it could be worse. I hazard that in 50 years the sex sensitivities of the colloquial speaker will have caused the formal replacement of the generic singular pronoun (he) with the plural pronoun (they), which is safely without gender. Already constructions like these are ubiquitous among high-school age writers, and sanctioned by their teachers:

Everyone must choose their own path.

Each student selects their thesis topic.

Note in the second example the jarring (I hope!) juxtaposition of the singular verb with the plural pronoun. This is the future.

Buddy, you don’t know the half of it! Not only are high-school age writers being taught this by teachers, they are even taught this by some other writers (who must obviously be misguided hacks, given how badly they’re abusing the English language). Some examples from some of these awful people — to avoid unduly embarrassing them, we’ll call them William S., Jane A., W.H. A., Jonathan S., William Makepeace T.,

And every one to rest themselves betake

I would have everybody marry if they can do it properly

… it is too hideous for anyone in their senses to buy

Who makes you their confidant?

… every fool can do as they’re bid

A person can’t help their birth

There’s not a man I meet but doth salute me
As if I were their well-acquainted friend

(All sources are from the Merriam-Webster’s Dictionary of English Usage, where the full names of these miscreants are revealed.) [UPDATE: A more comprehensive survey of Jane A.’s works is in the Spurious Grammatic “Rules” of Every Sort Are My Abhorrence post.]

So, commenters, is it that all these writers (whose work ranges from the late 1500s to the 1900s) and many more were wrong, and you’re right, when you say that [...]

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Congratulations to Robert Tsai on ‘Eloquence and Reason: Creating a First Amendment Culture’

This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture.  I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things.  However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.).  Kosar’s review notes (along with some criticisms of the book):

Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one….

Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged

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The Lowly Comma, Revisited

In the Writing Guidelines I distribute to students, I use the following example to illustrate the principle that “everything you put on the page matters”:

Everything – every word, every bit of punctuation, every decision to begin a paragraph with one sentence rather than another, every decision whether to use “shall” or “should” or “may” or “might,” or whether to use “since” or “because” or “thus” or “moreover” – matters. That may or not be true in other fields, but it is true in ours. This is less an objective fact than an attitude, an attitude that may or may not come naturally to you but which I urge you to start cultivating. Care about the words you put down on the page. Give a damn about them. They reflect who you are as a lawyer, and they are often the only reflection of who you are as a lawyer that your professional colleagues will get to see.

When Robert Frost’s Collected Poems was originally published, it contained these familiar lines (in “Stopping by Woods on a Snowy Evening”):

“The woods are lovely, dark, and deep
But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep.”

In fact, what Frost had written was:

“The woods are lovely, dark and deep
But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep.”

In a recent conversation with some colleagues about this point, Mark Lemley pointed me to a wonderful legal example of this principle. In Stark v. Advanced Magnetics, 119 F.3d 1551 (CAFC 1997) the court had to construe section 256 of the Patent Act, which reads:

§256 Correction of named inventor
“Whenever through error a person is named in an

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