LawProse Lesson #230: The most addictive phrase in legalese.

If we’d thought a moment about it before sending last week’s LawProse Lesson, we’d have foreseen the onslaught of lawyers’ vehement, overheated defenses of pursuant to.

It is, after all, the phrase that legalese lovers crave most. They’re addicts who can’t bear a moment of withdrawal.

“I use it pursuant to standards of good writing, prior to making my substantive point in a sentence,” wrote one correspondent. What standard of good writing advises using legalese?

Another said: “I have a phrase in which ...

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LawProse Lesson #229: Is “pursuant to” ever useful?

Is the phrase “pursuant to” ever substantively or stylistically justified?

Perhaps. But in 25 years of editing thousands of legal documents for law firms, corporate clients, and government agencies, the lawyer-editors at LawProse have never encountered a sentence that needed it. The phrase is pure legalese: it does little more than make legal writers feel lawyerly.

Precise legal writers prefer (1) under, (2) in accordance with, or (3) as authorized by—three senses blurred by the blunderbuss adverbial phrase pursuant to. Sometimes it’s even ...

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LawProse Lesson #228: Is “rule of thumb” offensive?

A rule of thumb is “a roughly practical measure that is neither precise nor invariable.” The term almost certainly derives from the habit of tailors’ or carpenters’ use of the thumb as the rough measurement of an inch. The earliest known use of the term dates from 1685: “Many profest Christians are like to foolish builders, who guess, and by rule of thumb.” (J. Durham, Heaven upon Earth).

An urban legend dating from the 1970s claims that the phrase is offensive because ...

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LawProse Lesson #227: Part 2: “Including but not limited to”

After last week’s lesson about defining including to mean “including but not limited to” in legal instruments, several lawyers responded inviting further commentary.

One correspondent took up my challenge: “I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive listing.” He cited Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 834-835 (7th Cir. Ill. 2002). In this case, the court was ...

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LawProse Lesson #226: “including but not limited to”

Lawyers often ask why we so commonly see the phrase including but not limited to—or variations such as including without limiting the generality of the foregoing. Doesn’t including itself imply but not limited to? The answer is yes, of course.

But legal drafting isn’t served well by implications, as opposed to explicit denotations. It’s always subject to hostile misreadings by opposing parties who will argue that implications aren’t enough. And courts have been known to accept these arguments, as by holding that including can ...

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LawProse Lesson #225: Announcing a New Law

Garner’s Law of Loanwords

The more arcane or technical a loanword, the more likely it is to retain a foreign plural, diacritical marks, and italics. The more common it becomes, the more likely it is to lose them.

Corollary: If the loanword becomes widespread, it is most likely to lose italics first, then diacritical marks second, and a foreign plural last.


Italics retained:

Bon appetit!

caveat emptor

C’est la vie!

de minimis

inter alia

Italics lost:

ad hoc

bon voyage


forum non conveniens

per se

quid pro quo

res judicata

Diacritical retained: [Please note that because ...

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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 ...

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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), ...

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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 ...

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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 ...

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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 ...

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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. ...

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