Updating the OED: Absent --

Hi, Sasha here — good to be back, after a two-year hiatus. Note to all: If you look at my personal web page, it's seriously (about a year and a half) out of date. I'm working on that.

For my first new post, I'll share a recent time-wasting activity of mine: coming up with "pre-dating" and "post-dating" evidence for entries in the Oxford English Dictionary. You may be aware that the OED has not only definitions but also historical usages, and my impression is that they try to find the first known English usage and list usages at regular intervals from then until the last known English usage, or until the present day if the word's still in use. The OED is also a collaborative enterprise, so they solicit freelance dating work.

So, a blog comment I recently read ("normal humans, rather than lawyers, regard the word 'absent' as an adjective rather than a preposition") made me wonder: is the prepositional sense of "absent" (meaning "without" or "in the absence of") really a lawyerly usage? I didn't think so, but then I may have false consciousness, since I read lawyers all the time. The OED did say this was an American, mostly legal, usage, and showed historical examples from 1944 to 1983. 1944 sounded awfully recent to me, so I did my own digging, and found the following, which I passed on to the nice folks at the OED. What follows is an illustrative, not exhaustive, list — though it's easy to find occurrences of this usage for any year after 1907, I've only given about one occurrence per decade in the 20th century.

1888 South Western Reporter VIII. 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words; but, being made to the wife by the husband, a separate estate, as against him, was the result. 1893 South Western Reporter XII. 629 Absent any evidence to the contrary, a proper and legitimate purpose will be presumed. 1898 South Western Reporter XLV. 303 Absent any one of these ingredients, there is no contract. 1906 South Western Reporter XCIV. 591 Absent one of these ingredients, there is no contract. 1914 South Western Reporter CLXXII. 17 A mere barren and abandoned conspiracy sounding in words, but jejune of acts or results, is not actionable, absent a statute so declaring. 1929 South Western Reporter (2d series) XVIII. 490 Absent a tender of an instruction properly defining said words, it was not error for the court to fail to do so. 1938 Federal Suppl. XXV. 861-62 The design, absent the color and display thereby created, is not more ornamental than many types of similar shoes.

The funny citation style is me trying to mimic the OED's citation style. The usage is much rarer before 1908, and all the early occurrences I've found have been from Missouri — apparently, a few judges (Justice Sherwood, sat 1872-1902; Justice Lamm, sat 1905-1914) enjoyed using the term.

UPDATE: My reactions to recent comments: My "false consciousness" was that I had seen the "absent" usage a lot; I thought it was pretty common; but in fact, since I read lawyers a lot, it may be true that it's a primarily legal usage. Yes, "false consciousness" is a facetious reference to Marxism. I think false consciousness in the Marxist sense is a useful concept, but in this case all I really meant was my sample was biased.

The "absent" usage doesn't derive from "absque," as one commenter suggests; I agree with Latinist that it's patterned after the ablative absolute form like "me absente" (note: I thought it would be "absenti" because present participles are declined like i-stems — am I wrong?). (Yes, the two words have the same flavor, but that's because they both derive from the same "ab" preposition.)

Finally, Lucia, who has found "loads of uses" of the form in the physical sciences, may be on to something — you should write an e-mail to the OED in which you note that there are all these nonlegal uses!

UPDATE 2: Ann Althouse, whose podcast I used to listen to all the time (I recently unsubscribed from most of them — nothing personal, Ann, just time management!) thinks this usage of "absent" is "ugly" and "feels abnormal." Joe's Dartblog thinks it sounds "nice." Also, he erroneously thinks that I think it's ugly. Did I say that, or even imply it, anywhere?

UPDATE 3: There's an interesting discussion in the comments, mainly between John Jenkins and Adrian Hester, on the likelihood of this usage's being Latin-inspired. For what it's worth, I'm inclined to suspect with Adrian Hester that it does come from the Latin ablative absolute usage — not as an ancient import (say, contemporaneous with the appearance of the word "absent" or the Renaissance or what have you), but perhaps (this is quite speculative) as an 1880s quirk of a Latin-loving Justice Sherwood of the Missouri Supreme Court.

UPDATE 4: A bit more discussion in the comments, now related to an article by one Slotkin about prepositional "absent" in the Fall 1985 issue of American Speech.

Updating the OED II: Mirandize --

My last post recounted the story of how I found usages of "absent," in its "quasi-prepositional" (so says the OED — but why quasi?) sense of "without," dating back to 1888, not the 1944 that the OED now reports. Well, if the OED has incomplete research on American legal usages, and I have good legal research skills, perhaps there are other opportunities for discovery? Here is the substance of my e-mail on the verb "Mirandize," which the OED has going back to 1984:

1971 California Reporter XCVI. 128 The Court did not Mirandize the defendant. 1983 State v. Ralston, Ohio appellate case reported in the Westlaw legal database at 1983 WL 4365, page 2, footnote 1, and in the LEXIS legal database at 1983 Ohio App. LEXIS 11918, page 7, footnote 1. While "Mirandize" is not a verb, yet, it succinctly describes the procedural warning required by Miranda v. Arizona (1966). 1983 Pacific Reporter DCLXXII. 511 At one of the interviews, a police officer failed to "Mirandize" the defendant "because he felt that urgency of time required immediate discovery of [the missing victim]."

Also, State v. Ralston has the past participle "Mirandized" ("According to the State, the appellant was "Mirandized" on ten separate occasions."). The OED lists "Mirandized" as an adjective ("a properly Mirandized defendant") with evidence back to 1988, so I suggested State v. Ralston as as a 1983 source for this too, even though they may reject it depending how serious they want to be about the past participle/adjective distinction.

Updating the OED III: Habeas --

The OED lists "habeas" as "short for habeas corpus" and gives a single example from 1879. (1879 SALA in Daily Tel. 26 June, The unterrified man moved himself by habeas to the Fleet.) It doesn't give a part of speech, but in that example it was a noun. Of course, lawyer types use "habeas" in this meaning, both as a noun and as an adjective, all the time. Here are some nouns:

1935 South Western Reporter (2d series) LXXIX. 866 That after certain cases, including the one against relator, were set for trial on September 25, 1928, and after the cases were called on said date for final action, it was made known to the court that the indictments in said cases were returned some years before; that habeases were duly issued but after diligent search defendants could not be apprehended, etc. 1945 U.S. Reports CCCXXV. 839 The motion for leave to file petition for writ of habeas is denied. 1980 U.S. Reports CDXLIX. 140 On federal habeas, this Court held that the Maryland system did not violate the Clause. 1986 U.S. Reports CDLXXVI. 1177 This case, then, falls squarely within the "ends of justice" exception to the general rule forbidding successive assertions of the same claim on habeas. 1989 U.S. Reports CDXCIII. 909 On state habeas, the Circuit Court held, tersely, that "the jury was properly instructed as to all matters and findings that they were required to make, including but not limited to evidence in mitigation of punishment." 1994 U.S. Reports DX. 1146 n.2 Even if Callins had a legitimate claim of constitutional error, this Court would be deaf to it on federal habeas unless "the state court's rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist." 1996 U.S. Reports DXIX. 146 Witt was a case arising on federal habeas, where deference to state-court findings is mandated by 28 U.S.C. § 2254(d).
And here are some uses as an adjective:
1894 Southern Reporter XIV. 535 Cy was examined before the coroner's jury, on a habeas trial, before the grand jury, and in the circuit court, where he made statements substantially as above set out. 1914 North Western Reporter CXLIV. 894 That the court permitted the witness, Samuel B. Dennison, to read in evidence the stenographic notes of the testimony of one Leonard Busby, as well as of testimony of defendant, given in a habeas proceeding before Judge Landis in Chicago, Ill. 1963 U.S. Reports CCCLXXII. 397 The first was that the denial of state post-conviction coram nobis relief on the ground of Noia's failure to appeal barred habeas relief because such failure constituted an adequate and independent state ground of decision, such that this Court on direct review of the state coram nobis proceedings would have declined to adjudicate the federal questions presented. 1976 U.S. Reports CDXXVII. 118 n.4 In Stout v. Cupp, a habeas proceeding, the court simply quoted the District Court's finding that if the suppressed evidence had been introduced, "the jury would not have reached a different result." 1987 U.S. Reports CDLXXXI. 556 The procedures followed by respondent's habeas counsel fully comported with fundamental fairness. 1997 U.S. Reports DXX. 466 Others came here by way of federal habeas challenges to state convictions. 2003 U.S. Reports DXXXVII. 507 The habeas court also must engage in a painstaking review of the trial record solely to determine if it was sufficient to support the ineffectiveness claim and thus whether it should have been brought on direct appeal. 2003 U.S. Reports DXL. 18 We may not grant respondent's habeas petition, however, if the state court simply erred in concluding that the State's errors were harmless; rather, habeas relief is appropriate only if the Ohio Court of Appeals applied harmless-error review in an "objectively unreasonable" manner.
The OED also lists occurrences of "habeas corpus," in its full form, but only as far forward as 1827. Obviously, we use it all the time in the law, but listing examples of that wouldn't be interesting here.

Next post: Submitting new words! P.S. The first post in this chain has some updates, partly based on recent comments.

Updating the OED IV: New words!

My most ambitious effort so far has been suggesting the new words "cert" and "certworthy." The OED doesn't have "certworthy" (though I think I heard some other dictionaries do), and it has "cert" in an entirely different sense ("this horse is a dead cert to win"). By the way, the OED's recently added entries include "yada yada," "Google" (v.), "calzone," and "fucking A." ("Calzone" indicates that sometimes even a not-new word takes a while to get noticed.)

Here's a portion of the list I sent for "cert" as short for "certiorari" in its adjectival sense (I've tried as much as possible to use popular media, not legal reporters):

1981 N.Y. Times 26 Oct. A20 Court rules limit the requests for review, the "petitions for a writ of certiorari" that everyone calls "cert petitions," to 30 pages. 1989 N.Y. Times 3 Nov. B7 A major Court task is the review of thousands of cert petitions, requests for the High Court to hear cases decided in a lower court. 1994 Christian Science Monitor 28 Nov. 12 The sharp rise in cert petitions since the late 1980s can be attributed primarily to an increase in filings by criminal defendants appealing convictions. 1998 Milwaukee Journal Sentinel 10 Nov. 12 He filed an amicus brief in support of the cert petition. 2001 St. Louis Post-Dispatch 8 Mar. B1 It is something called a writ of certiorari, or, as it is more commonly known, a "cert petition." 2003 New Jersey Lawyer 27 Oct. 1/3 The following Tuesday they consider 60 cert petitions, discuss argued cases and vote on them. 2004 L.A. Times 5 Dec. 18 Having a cert petition granted is roughly 20 times harder than gaining early admission to Harvard. 2005 N.Y. Times 31 Jul. 11 Much of the clerks' work consisted of summarizing the thousands of requests that the court receives each year to hear particular cases, known as petitions for writs of certiorari, or cert. petitions. 2006 Southern Reporter (2d series) CMXXV. 91 In considering the State's cert petition, we deem it necessary to address today only one issue.

Here's the noun sense:

1986 N.Y. Times 24 Jun. A24 One reason I do my own certs [petitions for certiorari, in which parties ask the Court to hear a case], excepting summertime when I let my incoming clerks do them, is that I think the screening process to decide what we should take and decide is as important as the decisional process. 1986 Dallas Morning News 30 Dec. 22b It's also a big chance, if they do grant cert (certiorari), to appear before the U.S. Supreme Court. 1987 New Republic 16 Feb. 18 It takes four votes to grant cert and hear a case. 1990 Journal of Commerce 6 Apr. 10A Industry players have "guarded optimism" that the court will grant "cert," or jurisdiction, in the Reserve Life case, according to Douglas Martin, vice president and counsel at Fireman's Fund Insurance Co., Novato, Calif. 1995 Washington Times 27 Feb. A4 "On occasion it is appropriate to restate the settled proposition that this court's denial of certiorari does not constitute a ruling on the merits," Justice Stevens wrote in a rare commentary on refusal to "grant cert" as lawyers call it. 2002 Legal Times 17 May 1 If the Supreme Court does grant cert, the case will likely occupy a commanding place in the nation's First Amendment jurisprudence. 2004 San Francisco Chronicle 15 Apr. F5 He considered writing a separate brief, but decided the justices would be more likely to grant cert if the attorneys general stood together. 2005 Miami Herald 23 Sept. A3 It is not clear whether the court, which meets starting Oct. 3, will decide whether to "grant cert," before Brownback begins hearing motions at Guantánamo Bay. 2006 American Lawyer Jan. 74 D.C. partner Donald Verrilli, Jr., 48, decided that the usual route for getting the Supreme Court to grant cert — emphasizing a conflict in the circuits — wasn't likely to work.

And, the pièce de résistance, "certworthy," meaning "worthy of review (i.e., granting a writ of certiorari) by the Supreme Court":

1963 U.S. Reports CCCLXXV. 38 Accordingly, while I believe the case is not "certworthy," I would affirm the judgment below. 1970 U.S. Reports CCCXCVIII. 963 I am at a loss to understand how questions of such importance can be deemed not "certworthy." 1970 Federal Reporter (2d series) CDXXXIII. 283 Whatever might be left of the issue on any appeal from the really 'final' final judgment some day to be entered, the case is not certworthy as an interlocutory appeal. 1983 U.S. Reports CDLIX. 447 I question that this case was "certworthy." 1983 U.S. Reports CDLXIV. 58 n.3 Therefore, the Court's conclusion that the claim raised by Williams is not "certworthy" is directly contradicted by the Court's previous actions in Pulley. 1989 Federal Suppl. DCCV. 1314 Counsel in fact took an appeal on Ginsberg's behalf, raising an issue (RICO forfeiture) that was not only a difficult one but was potentially "certworthy." 1990 Federal Reporter (2d series) CMXV. 714 Indeed, until this case, the United States was the primary proponent of limiting the vacatur remedy to certworthy moot civil appeals. 1995 Atlantic Reporter (2d series) DCLXV. 1038 ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted as it is of no prospective importance and thus not certworthy in light of 1995 Laws of Maryland, Chapter 625, effective October 1, 1995. 1996 Federal Reporter (3d series) CI. 980 Were we to grant the stay of execution here, I believe that we would, alternatively, court summary reversal or affirmatively mislead the Supreme Court into concluding that we believe that the underlying issue in this case is certworthy when we do not so believe. 2004 Metropolitan Corporate Counsel Aug. 23/1 This article explains the cert petition process, sets forth the considerations affecting whether to file an opposition, and discusses the indicia of a "certworthy" case. 2005 Legal Times 15 Aug. 60 The office is understandably concerned that if it began expressing its view that certain private cases were certworthy, the Court would draw a negative inference with respect to all other cases, in effect requiring the office to assume the herculean task of reviewing all pending petitions. 2006 Legal Times 20 Mar. 11 It strikes me that the case is quite clearly "un-certworthy."

Next post: We enter the 7th century!

P.S. In case you were interested in the first post of this series, there are some updates, based on the comments. Query: Why are there comments on the first and third posts, but no interest in "Mirandize" (second post)?

UPDATE: Reader Arthur Hellman gets a prize! In the comments, he posted the citation of a Harlan speech to the N.Y. City Bar Ass'n from... 1958. Once I verify this, it goes to the OED in an update e-mail.

Updating the OED V: Old words!

Here's a neat feature of the online OED. (Alas! You can only connect if you or your institution has a subscription. So if you can't get there, and if you don't have the paper copy, you'll just have to take my word for it. Well, for the online interface stuff I'm talking about, even the paper copy doesn't work....)

As you look at the definition of a word, the word also appears in an alphabetical list in a frame in the left margin. For instance, for "cert (n.)," you can see "cert" in the middle of a list stretching from "cerosin," "ceroso-," "cerote," etc., down to "certes," "certie," "certifiable." This is good for checking similar words or correcting your own spelling, and also simulates to a small extent the experience of being seduced by random words you might find while flipping through a dictionary.

But you can switch from "List by entry" to "List by date"; then, instead of seeing your word in alphabetical context, you can see it in chronological context, where each word is indexed by the earliest listed occurrence (over the entire entry). "Cert" (in the "dead cert" meaning) is listed as appearing in 1889, so the words in the left margin run from "1889 catalytical," "1889 cataphoresis," "1889 catatonia," etc., down to "1889 chemiluminescence," "1889 chicle," "1889 chit-chatty."

There are a lot of 1889 words, but you can also go up or down a screen to see alphabetically prior or subsequent words in the same year, and further to see words from different years. This is fun because, if you're interested in a period, seeing what words first showed up in the language in that period gives you a nice sense of what was going on at the time in society and culture.

For example, "lonely" was invented by Shakespeare, who used it in Coriolanus ("I go alone Like to a lonely Dragon, that his Fenne Makes fear'd, and talk'd of more then seene.") in 1607 — did you know that "Alpine," "archaeology," "birthplace," "bloodshot," "exasperated," "Machiavellianism," "maestro," and "procrastinator" also appeared (as far as the OED knows) in that year?

Now I know what you're thinking: "O.K., Volokh, enough with the 1889 and 1607, what are the earliest known English words?"

UPDATE: Pat at Stubborn Facts responds. Also, note a useful comment by David Leon Gil in the comments.

Speaking of Neologisms and the OED:

Which American President is listed in the OED as the first cited author for over 100 words, including such beauties as "doll-baby"(!), "sanction," "electioneer," "vomit-grass," "public relations," "Mason-Dixon," "obiter dictum," "post-note," and, best of all, the self-referential "neologize"? Answer is below.


More Presidents:

Yes, but which President is credited for having come up with an original proof of the Pythagorean Theorem?

Nachos that do not destroy you make you stronger:

A great story about the true etymology of "nachos." And, the Nietzsche Family Circus, which "pairs a randomized Family Circus cartoon with a randomized Friedrich Nietzsche quote."

(Hat tip to Paul Hsieh, twice: For nachos via GeekPress, and for Nietzsche via NoodleFood.)