Posner’s Ruling: Jargon, you’re out of order!

If you’re a writer or editor or someone who follows the latest developments (such as they are) of the English language, you’ve probably spent time on various grammar and vocabulary and writing advice sites. You’ll know some of the popular ones (Grammar Girl) or the elder statesmen (World Wide Words), or your taste might run to the more specialized (Garner’s LawProse blog) or the eclectic (Language Log). There are literally more than I could list.

You might have encountered some of the eccentric groups, such as the Plain English Campaign (PEC) with its awards for outstandingly bad use. An outfit like that can do some good, although their approach and success are limited (and they’re quite rightfully not without critics).

I sympathize with PEC, as most editors probably do: some of us spend a lot of our time simplifying over-wrought writing, and it’s not always easy convincing an author to stop bloviating and just say what they mean. It ever was and ever will be.

Today’s post is in the vein of the PEC, to bring your attention to the wit and good sense of Judge Richard Posner, a respected member of the the US Court of Appeals (Seventh Circuit). He’s also described in some sources as an economist (but I won’t hold that against him). Jurisprudence aside — he’s got an impressive record– his thoughts on language use are worth your attention.

I’ve been doing a lot of work lately involving research, digestion, and summary writing on legal issues. A few times each week I’ll need to find the text of a decision and read it through for details (or at least scan it to find what I’m looking for). While most court decisions are less tiresome than many academic papers, these sorts of court documents, on the other hand, have a special consistency to them: they frequently are unnecessarily wordy and rely on overlong sentences and a peculiar dialect of stock phrases and repetitive constructions, liberally salted with legal jargon. Despite the necessity of stating the point in unambiguous terms, some decisions seem to aim for a high bar of wordiness and opacity.

So it was with interest that I recently followed a link with the headline “Richard Posner Slams ‘Stale, Opaque, Confusing Jargon’ in Judges’ Opinions.” Stale, opaque, confusing jargon? That’s the norm, so to read that a judge was coming down against it was, to use a tired cliché, a breath of fresh air.

Jargon can be a problem, but it isn’t all bad. Jargon actually serves some useful purposes, chief among them being to identify specialists in a field to each other. If someone doesn’t know the jargon (or doesn’t use it correctly), they probably aren’t a fellow professional. Every profession has its jargon: doctors and nurses use terms that others don’t (or use familiar terms in unfamiliar ways); so do engineers, web developers, soldiers, chefs, and truck drivers. Nearly everyone: another project I’m on at this time has re-introduced me to the world of enterprise software development and its curious jargon.

Jargon as a concept has no class or income level, although any specific type of jargon will probably be circumscribed by those things. While jargon is a quick way to share important ideas in a field, and a quick way to identify who is qualified in the field, it’s also used in an opposite way: it’s a quick way both to identify who is not knowledgeable in a field, and it’s a useful tool to exclude outsiders from understanding what’s going on among the ‘in’ crowd. It can be argued that in this way jargon is no different from teen slang terms, although it’s not usually a matter of knowing who’s cool and who’s not (and the terms don’t change as quickly to exclude outsiders who’ve cracked the code).

While I concede value in jargon, Posner doesn’t — at least in the writing of legal opinions. He’s entirely against the idea and believes that legal language should be accessible to the non-specialist (“everything judges do can be explained in straightforward language–and should be”). His primary argument, at least in the decision getting recent attention, is that lawyers and judges must do their part to exterminate that old literary vermin, the weasel word. He notes how “actual guilt” and “actual innocence” don’t really mean anything more than “guilt” and “innocence.” A term like “actual” on the page follows the long tradition of weasel words (Teddy Roosevelt railed against them in a 1916 speech) which, even if they don’t change the meaning of a sentence (and they frequently do) still manage to weaken the writing. (That’s the original meaning of weasel words: they suck the life out of other words, the way a weasel sucks the life out of an egg. The idea that weasel words are used by slippery people trying to weasel out of something came much later.)

Posner doesn’t mince words. When it comes to language use, the legal profession “is backward-looking” and law schools fail their students because they are “not really taught to think critically.” I agree strongly on that second point: during my entire time teaching college writing, critical thinking was a drum the department and instructors continuously beat. I can only hope we had some effect.

Sloppy and thoughtless language is a continuous concern for those who care (and if you use language at all, you should care). Only the other day I took an acquaintance to task for using the phrase “the dead of summer.” While it might seem like a natural reflection of the phrase “dead of winter” (a cliché to avoid in the first place), it doesn’t make sense. The dead of winter colorfully refers to a a particular time, literally and metaphorically: it’s both the middle (“dead center,” if you will) and the least alive (the frozen dead period of the northern winter). “Dead of summer” is a mistake, plain and simple. One might argue that the “dead center” sense applies, but to do so would erase the point of the “dead of winter” phrase. Instead, use something that makes sense to your reader or listener…height of summer, peak of summer…or put in the effort to make up a new phrase that gets your meaning across, if that’s your goal. The alive of summer? The bloom of summer? Show that you care, because “dead of summer” clearly shows that you don’t.

That phrase, “dead of summer,” by the way, is one I’ve heard used independently by at least three people over the past month. Once might be a fluke. Three times is potentially the tip of an iceberg of carelessness.

While my suggestion to stop using “dead of summer” might not get very far, Posner seems to be having an effect on his fellow justices. The decision in the case, which is very easy to read compared to most, includes this near the beginning: “Long story short: Dessart lied, the investigator didn’t, the warrant was backed by ample probable-cause, and there was no instructional error. We affirm.” That’s just the kind of language Posner champions.

His critique doesn’t stop with the language. He applies it to the way justices think and act: “The passages from judicial opinions that I’ve quoted thus far invite judicial haste and carelessness.” He’s right about that. Sloppy writing reflects and encourages sloppy thinking. It’s too bad more people don’t recognize this connection.

On top of the language issues there’s other interesting stuff in Posner’s concurring opinion (6 pages added to the 16 of the majority). For example, I hadn’t realized that the Fourth Amendment (that’s the ‘search and seizure’ one) doesn’t say anything about requiring warrants when probable cause is involved. To the contrary, it states only that when a warrant is issued, it must have cause. That’s coming at things from a completely different angle. All that stuff you’ve learned about the validity of searches from watching too many episodes of Law & Order? It might not be outright wrong, but it’s not entirely right, either.

Most of what I’ve cited above is from an interview with Posner, but it’s worth taking a few minutes to read the decision itself. It’s clear. It’s concise. It’s to the point. And quite frankly, it’s a joy to read compared to most legal opinions. That’s even before you get to Posner’s concurring opinion.

Justice Posner discusses each decision as being contained within a “rhetorical envelope,” and he’s doing his part to keep that envelope clean. Let’s extend this metaphor to support more plain language stop unnecessary jargon: put a stamp on this rhetorical envelope and get it in the mail!

About thebettereditor

Chris holds a BA degree in history from the University of Virginia and a Master of Fine Arts (MFA) Degree in writing from the University of Southern Maine (Stonecoast). He has worked extensively with professional and semi-professional writers and enthusiastic amateurs for about 20 years. He has several years experience in scientific publishing, but has also worked in information technology, insurance, health care, and education (he taught writing at the university level for a number of years). Since 2011, he's also specialized in helping small businesses meet their writing and editing needs on a budget.
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