A federal statute allows certain appeals "if application is made to the court of appeals not less than 7 days after entry of the order." That's pretty odd -- why allow applications that come six years after the order, but not ones that come six days after? There's some reason to think that Congress (or those members or staffers that paid any attention to the provision) meant "not more than 7 days after entry of the order," making this a deadline rather than a waiting period.

The interpretive question is whether a court should read "not less than" as (1) "not more than," on the theory that this is what Congress must have meant, or as (2) "not less than," on the theory that this is what Congress actually said. The Ninth Circuit (and, I believe, several others) read it as "not more than." Several judges disagreed, and dissented from the Circuit's refusal to rehear this decision en banc. Here are the opening sentences of the dissent (a dissent, incidentally, that I found to be substantively quite well-reasoned):

Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications.

My first reaction to the "Is less more?" question was that it was an allusion to the phrase "less is more." I suspect this would be the common reaction, and quite likely the intended reaction. And it might seem like a nice colorful touch, an eye-catching way of framing the legal issue.

Yet the trouble is that the connection to "less is more" cuts against the dissent's rhetorical purposes, or so it seems to me. "Less is more" (and, I suppose, "is less more?") is neither particularly facetious nor particularly philosophical. Rather, it's a common way of putting the notion that less of something (especially something that's usually a means towards an end) may often be more of something (the end itself).

A lawyer may tell a junior lawyer that, "when it comes to italics, less is more," meaning that "less use of italics to show emphasis may actually mean more effective emphasis." Or he may say, "in brief-writing, less is often more," probably meaning "using fewer words will often make for more persuasion." "Less is more" is often good advice.

So the answer to "Is less more?" is thus actually often yes, and a not particularly facetious yes. By framing the majority's argument as being "Is less more?," the dissent, I think, is analogizing the majority's argument to something quite plausible (since less often is more) rather than to something wrong, paradoxical, unlawyerly, or particularly facetious. As it happens, the majority's point that "'less' is 'more'" actually has nothing to do with the common phrase "less is more." But it seems to me that by bringing up this phrase in the reader's mind, the dissent is giving the majority more credit than necessary.

I mention this because it ties in to my "avoid the figurative, but not like the plague" advice. I'm all in favor of making one's arguments colorful, if that color doesn't unduly sacrifice precision or persuasiveness. Metaphors, allusions, and witticisms can sometimes be especially persuasive, or at least can help keep the reader interested.

But often such colorful language is so appealing to the writer that the writer uses it even when it's not quite apt -- even when it suggests an analogy that isn't quite right, or when it implicitly undermines the writer's argument. Plain words are usually chosen only because the writer thinks they're right. (They may still be wrong, but the writer was at least focused solely on getting the right words.) Colorful words are often chosen chiefly because they're colorful, not because they're the most precise way of articulating the writer's point. And while a colorful and precise phrase is great, a colorful but inapt and thus substantively counterproductive phrase is worse than a plain and precise one.

Perhaps I'm mistaken, and perhaps I'm reading too much into a harmless witticism. But if I'm right, then it's further evidence that we should be skeptical about the very flourishes that we most like. If we like them for reasons other than their logical and rhetorical aptness, we might be missing their possible inaptness.