LawProse Lesson #224: Rethinking the dropping of “Jr.”

In recent weeks, several readers have taken issue with the idea that a man with “Jr.” appended to his name should drop it within two years of his father’s death. In our LawProse Lesson of May 2013 (#120), we cited six authorities published from 1937 to 2003 insisting that the “Jr.” be dropped upon the father’s death. Concededly, this position seems a little callous and arguably disrespectful. The trend today is for Juniors to retain the label no matter how long ago the father died.

There are practical reasons for keeping “Jr.,” as some of my correspondents point out. R. Matthew Pettigrew Jr. says that the old rule might have made sense until computers took over our lives: “My father died more than 20 years ago, but it would be very difficult for me to drop the label ‘Jr.’ For the purposes of the IRS, the Social Security Administration, voter-registration records, my driving license, my credit cards, my school records, my bar admissions in three states, and my passport, I will be a Junior for the rest of my life. And I kind of like it that way.”

Norman G. Tabler Jr. suggests both pragmatic and legal reasons for retaining the “Jr.”: “First, because the suffix appears on one’s birth certificate, draft card, driver’s license, Medicare and Social Security cards, academic and military records, and various proofs of ownership (not to mention airline records and the like), safely dropping the suffix would likely require a mountain of paperwork—perhaps a judicial order in many jurisdictions. I have often thought about dropping the suffix, mainly because of the effort involved in typing the five extra characters—yes, I use the commas—but this first consideration has always stopped me cold. The second matter is less practical, but for me it has some weight. It’s the fact that unlike ‘Sr.’ and various prefixes such as ‘Mr.’ and ‘Mrs.,’ the suffixes ‘Jr.’ and ‘III’ are actually part of a person’s official, legal name. They appear on the formal record of one’s birth. To my mind, that clouds the issue of whether keeping or dropping them is simply a matter of usage.”

Finally, Eric Witte (not a Junior) notes the potential problem of posthumous dropping: “Martin Luther King Jr.’s father died in 1984. Is it no longer appropriate to refer to the civil-rights leader as Jr.?”

So it’s time for etiquette authorities and usage guides to update their guidance in a realistic way. No more insistence on dropping “Jr.” after one’s father’s death. As Michael Taglieri said in a message to me, “In the modern world, a rule that a man drops ‘Jr.’ when his father dies would be ridiculously complicated.”

Fifty years from now, look for baronial-sounding VI’s and VII’s. But let’s not be at sixes and sevens about that yet.

Further reading:

Garner’s Modern American Usage 554-56 (3d ed. 2009).

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LawProse Lesson #223: The Economist’s “Misspellings”

Every once in a while, an American will tell me that The Economist makes for wretched reading because of its many misspellings. I fear that they’re betraying both provincialism and sloth in reading. Like all other British publications, The Economist uses British English spellings. Hence BrE –our (favour) to AmE –or (favor), BrE –re (centre) to AmE –er (center), BrE –ise (organise) to AmE –ize (organize), BrE doubling of terminal –in an inflected unaccented syllable (levelled) to AmE lack of doubling (leveled), and BrE variants such as aluminium to AmE aluminum, BrE byelaw to AmE bylaw, BrE defence to AmE defense, BrE enrolment to AmE enrollment, BrE jewellery to AmE jewelry, BrE tyres to AmE tires, and so forth.

These are not misspellings; they’re British variants. The linguistic evidence shows a trend in BrE to adopt some AmE spellings over time, but it’s happening very gradually. For example, organize has overtaken organise in BrE since 1925; tires has come to rival tyres in BrE since 1990; encyclopedia has outpaced encyclopaedia in BrE since the early 1990s; favor has begun to converge with favour in frequency of BrE use since 2000; and enrolment is being threatened by enrollment. While this is taking place, American readers should be magnanimous enough not to accuse traditionalist Mother Country publications of “spelling errors.”

Many of the differences between AmE and BrE spelling, by the way, are traceable to Noah Webster’s simplifications in his early-19th-century spellers and dictionaries. For his contributions to American English, he is often honored (not honoured) as one of the Founding Fathers.

Further reading:

Garner’s Modern American Usage 41, 763‐65 (3d ed. 2009).

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LawProse Lesson #222: What is a “misnomer”?

What is a misnomer?

In law, a misnomer is the use of a wrong or inappropriate name—usually of a person or place—in a legal document. In nonlegal contexts, misnomer usually refers to a misdescription of a thing or concept.

     You’ll occasionally find this term misused to mean “a popular misconception” {It’s time to banish the myths and misnomers [read misunderstandings or misconceptions] surrounding the law-school application process.}. Oddly enough, this mistake is itself a kind of misnomer based on a misconception.

     Typically, when the term is used correctly it will accompany a misleading word or title, often in quotation marks—e.g.: “Old countries are sometimes world-weary and cynical, urging a ‘realism’ that is sometimes a misnomer for the moral corruption they know so very well.” Richard Cohen, “Nobel Winners and Losers,” Wash. Post, 15 Oct. 2002, at A19.

Further reading:

Garner’s Dictionary of Legal Usage 582 (3d ed. 2011).

Garner’s Modern American Usage 542 (3d ed. 2009).

Black’s Law Dictionary 1151 (10th ed. 2014).

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LawProse Lesson #221: The fallacy of intelligibility.

The fallacy of intelligibility.

Several readers wrote about last week’s lesson to say that it matters not one whit whether you “cite a case” or “cite to a case.” They said: “Everybody knows what it means.”

That’s an interesting line of argument. You’ll encounter it often in usage circles, but not among those who prize fastidiousness with language. True, language is an arbitrary set of conventions, and there is no logical reason why we say “contrary to” instead of “contrary of” or “contrary with.” It’s largely a matter of linguistic custom. Educated speakers of English are expected to know which preposition to use with “contrary.” It’s a linguistic marker.

There is some logic behind preferring “couldn’t care less” to “could care less” (are you trying to say that you do care?); this particular phrase, like so many others, is also a linguistic marker. Do you think that idiosyncrasy is a form of government? That maelstrom is a kind of storm? That a bellwether is an omen of bad (or even good) weather? These, too, are linguistic markers. There are thousands of them.

Few of these markers lead to real confusion. Rather, they may result in a loss of credibility for the speaker or writer. Nonstandard, ungrammatical language irks educated readers. It distracts them and makes them less likely, even unwilling, to align themselves with you. Wrong words are like wrong notes in music: they spoil the tune. And wrong words make readers stop thinking about your message and start pondering your educational deficits.

If anyone tells you otherwise (that is, if someone says it don’t make no never-mind), don’t believe it.

Further reading:

Garner’s Modern American Usage 154-56 (3d ed. 2009) (s.v. class distinctions).

Garner’s Dictionary of Legal Usage 158-59 (3d ed. 2011).

The Chicago Manual of Style (16th ed. 2010).

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LawProse Lesson #220: Is the verb “cite” transitive or intransitive?

Is the verb “cite” transitive or intransitive?

For most of its history, the verb cite (dating from the 15th century) has been a transitive verb; that is, it takes a direct object. For example, a lawyer cites a case or a police officer cites a driver for a traffic violation.

      I could cite plenty of authorities for that assertion, including dictionaries right up to the latest Merriam-Webster’s Collegiate (11th ed. 2011). That book, not known for being a stickler when it comes to rolling with the flow on changing usage, still lists cite as a transitive verb only.

     But since the late 1990s, legal writers have started to insert the superfluous preposition to after the verb, thereby making it intransitive. So they no longer cite cases, but cite to cases.

  This newfangled usage is not merely verbose; it irks traditionalists who think that you should “cite cases to a court” or “cite the record,” not “cite to cases” or “cite to the record.” (Believe me, it’s a pet peeve among a fair number of judges.) The object of cite should be the authority cited, not the person to whom the authority is cited.

      Here at LawProse we encourage you to inoculate yourself against this linguistic virus. The way to do that is simply to start noticing the usage whenever you see or hear it and not repeat it.

Further reading:

Garner’s Dictionary of Legal Usage 158-59 (3d ed. 2011).

Garner’s Modern American Usage 153 (3d ed. 2009).

The Redbook: A Manual on Legal Style § 12.3, at 259 (3d ed. 2013).

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LawProse Lesson #219: Are “certworthy” and “enbancworthy” bona fide words?

Are “certworthy” and “enbancworthy” bona fide words?

Yes. According to the 10th edition of Black’s Law Dictionarycertworthy dates from 1965 and means “(of a case or issue) deserving of review by writ of certiorari.” It was first recorded in the 7th edition of Black’s in 1999.

      Enbancworthy is recorded from 1968 and is defined as “(of an appellate case) worthy of being considered en banc.” It appears to have been invented by Judge John R. Brown of the 5th Circuit. He was proud of his neologizing effort.

      Both are labeled as slang terms.

      Each word is made with the combining form -worthy, which means either “fit or safe for” or “deserving of.” Among the English terms made with this suffix are seaworthy (first recorded in 1807), airworthy (1829), creditworthy (1840), and praiseworthy (1538). According to the Oxford English Dictionary, the suffix –worthy came into use in the 13th century. Among the obsolete terms that were current in Middle English are deathworthy and thankworthy. But comparatively few of the old compounds were noteworthy enough to come into common use.

      We hope you find this small discursus on neologisms lessonworthy.

Source: Black’s Law Dictionary 276, 643 (10th ed. 2014).

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LawProse Lesson #218: How much argle-bargle is required for jiggery-pokery?

How much argle-bargle is required for jiggery-pokery?

In the last few Supreme Court terms, Justice Antonin Scalia has used some memorable British colloquialisms—especially argle-bargle and jiggery-pokery.

Argle-bargle is a chiefly British phrase that has taken on the meaning “copious but meaningless talk or writing; nonsense.” It originated in the early 19th century from the Scottish term argle—a late 16th-century variation of argue. Merriam-Webster’s lists the term simply as a synonym of argy-bargy, which in BrE means “a lively discussion or argument.”

Jiggery-pokery means “devious or suspicious behavior; sly manipulation; subterfuge; trickery.” The term originated in the late 19th century, most likely as a variant of the Scottish joukery-pawkery from jouk (to turn or bend, usu. to avoid someone or something) and pawky (artfully shrewd). Jouk also gives us the sports term juke (to make a false move in order to deceive an opponent), combining jouk‘s original physical sense and the metaphorical one it assumed as joukery.

Such reduplicative phrases have a way of catching the public ear. Flimflam, jibber-jabber, hocus-pocus, and mumbo jumbo are mainstays of political commentary. And flip-flop is a recurrent favorite, cropping up in prominent elections. So keep an ear out for it in 2016.

Though Justice Scalia’s borrowings from across the Pond may sound funny to American ears, they are part of a well-established tradition and have rich histories of their own—far from pure applesauce. Before I became Justice Scalia’s coauthor (on two books), I interviewed him at length in 2006. When the Justice mentioned that Justice Robert H. Jackson is his favorite writer in Supreme Court history, I responded: “Jackson . . . was considered to be way too aggressive toward his colleagues in his dissents.”

Justice Scalia responded, chuckling: “Oh, imagine that.”

Source:
Antonin Scalia, interview by Bryan A. Garner, 13 Scribes J. of Legal Writing 51, 64 (2010).

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LawProse Lesson #217: When do you capitalize “federal” and state”?

When do you capitalize federal and state? What about congressional and constitutional?

     These words have been worked hard over the past week. Maybe they’ve earned capitals on that basis alone. But let’s see what the best typographic practice calls for—keeping in mind that professional editors today overwhelmingly prefer “down-style,” in which capitalization is sparingly used.

Generally speaking, the word federal should be lowercase unless it’s part of a title or an organization’s name {federal assistance} {the federal government} {Federal Rules of Civil Procedure} {Federal Trade Commission}.

Don’t capitalize state when using it as a common noun {She visited the New England states last month.} {The travel guide lists the most secluded beaches in the state of California.}. But do capitalize state if it is (1) part of a proper name {I live in Washington State (as opposed to Washington, D.C.).} {Sick of the hot Texas summers, Susan is moving to New York State (as opposed to New York City).}; (2) used in place of a particular state, or referring to a specific governmental body {Don has worked for the State of Kansas for 20 years.} {The State’s criminal penalties for drug crimes are too lenient.} {Contact the State for licensing requirements.}; or (3) a party to litigation {The State filed a response yesterday.}.

As a matter of style, you’ll find many recent U.S. Supreme Court cases in which both words are capitalized. That may be a holdover from 18th-century style, in which many common nouns are capitalized.

The adjectives congressional and constitutional are not capitalized because their corresponding nouns, Congress and Constitution, are not exclusively proper nouns {A vigorous daily walk is good for your constitution.} {The student body held a congress to discuss tuition increases.} {the constitutional basis for imposing congressional term limits}. But adjectives that are derived from words that exist only as proper nouns should be capitalized {American}.

Down-style is easier to read: it emphasizes only words that require emphasis. In legal writing, there is an unfortunate tendency toward contagious capitalization. But it’s a curable condition.

Further reading:
Garner’s Modern American Usage 131–32, 186, 193 (3d ed. 2009).
Garner’s Dictionary of Legal Usage 133–34, 203, 209, 354 (3d ed. 2011).
The Redbook: A Manual on Legal Style § 2, at 61–77 (3d ed. 2013).
The Chicago Manual of Style § 8.50, at 406–07, § 8.61, at 412–13 (16th ed. 2010).

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LawProse Lesson #216: Embracing constructive criticism.

Embrace constructive criticism.

     Undeveloped writers feel instinctively that if someone else criticizes their writing, it’s a personal affront. But more experienced writers know that if you insulate yourself from criticism, you’ll find it difficult to improve.

Every document can benefit from a review by a fresh pair of eyes—as many as possible, in fact. Good writers embrace that fact and welcome the help.

Ideally, every serious writing project receives a series of good edits late in the writing process. Not just heavy edits, but good edits. The best situation is having an experienced editor look at your document. But even nonprofessional editors and less-experienced juniors can give you valuable comments. They might find a particular sentence awkward or a particular word jarring. If they do, other readers probably will too. Or they may point out a flaw or gap in your reasoning or argument.

The more secure you are as a writer, the more you’ll seek out independent, objective scrutiny of your writing. It won’t come naturally—you’ll have to put aside your ego. Writing is a humbling affair.

I recently met a senior lawyer who took me aside and confided that he never lets anyone edit his prose. “Who would be qualified?” he asked rhetorically. But his colleagues, I’m sure, are more adept than he believes. And I’d wager that his prose isn’t nearly what he thinks it is.

Further reading:
Legal Writing in Plain English 161–62 (2d ed. 2013).
The Winning Brief 67–74 (3d ed. 2014).

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LawProse Lesson #215: How do you decide which Latin phrases to italicize?

How do you decide which Latin phrases to italicize and which ones to keep in roman type?

The answer depends on how thoroughly naturalized the word, abbreviation, or phrase has become in English. If the term has become so commonplace in English that it is said to be “anglicized,” it stays in roman type; if it’s persistently considered a foreignism, it should be in italics.

If that sounds like a fuzzy “rule,” you’re right. Consider that in the best style, the abbreviations “e.g.” (exempli gratia) and “i.e.” (id est) are set in roman even though the full terms are italicized. Here are a few more examples:

Italicized

a vinculo matrimonii
caveat emptor
de minimis
duces tecum
ejusdem generis
in loco parentis
in pari materia
inter alia
non compos mentis
sensu stricto

Not italicized

certiorari
de facto
en banc
habeas corpus
mens rea
nunc pro tunc
prima facie
res judicata
stare decisis
sua sponte

With no bright-line rule for determining when a foreignism becomes anglicized and should no longer be italicized, the best practice is to check the current edition of a reliable dictionary or usage guide. The surest guide for legal terms is Black’s Law Dictionary (10th ed. 2014). Follow the style of the entry’s headword.

One last note: remember that a word or phrase—anglicized or not—is always italicized when it is being used as a term rather than for its meaning. So, for example, even though habeas corpus is thoroughly anglicized and therefore set in roman type, it’s properly italicized in this sentence about the term itself.

Further reading:
The Redbook: A Manual on Legal Style § 3.3, at 80–81 (3d ed. 2013).
Garner’s Dictionary of Legal Usage 488 (3d ed. 2011).
Black’s Law Dictionary xxxiv (10th ed. 2014).
The Chicago Manual of Style §§ 7.49–7.53, at 364–65 (10th ed. 2010).

Thanks to Adam M. Hapner for his contributions to this lesson.

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