Vol. 40 No. 6
Bryan A. Garner is the president of LawProse, Inc. (www.lawprose.org). He is the author of many widely used books, including Making Your Case: The Art of Persuading Judges (with Justice Antonin Scalia),Garner’s Dictionary of Legal Usage, and Garner’s Modern American Usage. He is the editor in chief of all current editions of Black’s Law Dictionary.
“A lawyer,” wrote the great advocate Frederick Bernays Wiener, “is a professional in whom bad English should not be tolerated.” And where, you might wonder, are you least likely to encounter bad English? Perhaps in law reviews—which are so heavily edited by battalions of our best law students serving as red-pencil-wielding editors and fact-checkers.
But alas, their language skills are too often anything but impeccable. The recently published third edition of my Dictionary of Legal Usage cites nearly 2,000 errors from nearly 500 law reviews (not to mention thousands in judicial opinions). So it seems perhaps unduly censorious to say, as Walter Savage Landor did, that “next in criminality to him who violates the laws of his country, is he who violates the language.” At least Landor got his pronouns right.
Given that we are all linguistic sinners—prone to at least occasional error—we must approach the subject with some humility. On the other hand, we shouldn’t be timid or lax. When you see errors in form, start looking for errors in content. You’ll doubtless find them. That’s because clear and accurate thinkers use words well—at least in their native language.
In the 18th century, Lord Chesterfield noted this fact about a first versus a second language: “A man will be forgiven even great errors in a foreign language; but in his own, even the least slips are justly laid hold of and ridiculed.” Perhaps we ridicule less today than in yesteryear. After all, we no longer use the stocks as punishment. And embarrassment over linguistic infelicities is probably at an all-time low.
But here we go. It has become my annual custom to collect the most atrocious grammatical transgressions of the past year in our law reviews. As usual, I’ve presented the errors in the form of a test: see whether you can choose the correct answer, knowing that in each instance the authors or their editors, or perhaps both, fumbled. The answers are printed at the end. But don’t peek. Try your hand first. If you get even one answer right, you’ll have bested the cumulative efforts of the editors whose work is here on display.
“[A] number of new PDA cases have [(a) arisen or (b) arose] over the past twenty years that have [(a) lead or (b) led] to disagreements among the courts.” Justin A. Hinton, Note, Employment Discrimination—In Vitro Fertilization and the Pregnancy Discrimination Act of 1978, 32 U. Ark. Little Rock L. Rev. 515, 515 (2010).
“[E]ven if she [(a) had or (b) had have] been told, she would not have opted for a caesarean.” Rob Heywood, Negligent Antenatal Disclosure and Management of Labour, 19 Med. L. Rev. 140, 147 n.33 (2011).
“[T]he court noted that the hiring committee members told a state entity investigating Pettigrew’s charge that his interview had [(a) gone or (b) went] okay.” 2009 Annual Survey: Recent Developments in Sports Law, 20 Marquette Sports L. Rev. 497, 578 (2010).
“Barry addresses what she [(a) might of or (b) might have] called the ‘therapeutic alliance.’” Michael Shiner, Book Rev., Youth Justice Handbook, 51 Brit. J. Criminology 459, 459 (2011).
“Justice Breyer [(a) casted or (b) cast] doubts on the notion that First Amendment law should turn on standards from ‘geographically separate local areas.’” Josh Blackman, The Constitutionality of Social Cost, 34 Harv. J. L. Pub. Pol’y 951, 1000 (2011).
“[T]he Arizona Supreme Court stated that [(a) irregardless or (b) regardless] of conflicting state laws, federal law authorized the government to reserve a right to groundwater under Indian reservations.” Harold Shepherd, Implementing the Human Right to Water in the Colorado River Basin, 47 Willamette L. Rev. 425, 459 (2011).
“[T]he judge deemed bald religious assertions to be no rational argument at all because they [(a)sprang or (b) sprung] from faith, not fact.” Jeffrey Abramson, Book Rev., Justice: What’s the Right Thing to Do?, 89 Tex. L. Rev. 653, 665 n.60 (2011).
“Instances where inmates were [(a) beat or (b) beaten] up for failing to comply with the ‘payback two’ rule when they borrowed items [(a) is one example of or (b) exemplify] violence being used to punish those who violated accepted norms.” M. Dyan McGuire, Doing the Life, 2011 J. Inst. Just. Int’l Studs. 145, 155. (Extra points all around.)
“[T]he intrusion into the field of domestic relations is just one of multiple factors that together can [(a) uncategorically or (b) categorically] suggest that section 3 of DOMA . . . offends constitutional federalism limitations.” David B. Cruz, The Defense of Marriage Act and [(a) Uncategorical or (b)Categorical] Federalism, 19 Wm. & Mary Bill Rts. J. 805, 828 (2011).
“The court noted that, although both drivers were Missouri domiciliaries, neither of them [(a) was a party or (b) were parties] to the action.” Symeon C. Symeonides, Choice of Law in the American Courts in 2010, 59 Am. J. Comp. L. 303, 339 (2011).
“[S]uch a grant was likely crafted by Chávez to promote a clientelistic relationship between [(a)him or (b) he] and the public sector.” Kerry Moham, Delegated Decree Authority in Contemporary South America, 17 L. & Bus. Rev. of the Americas 231, 251 (2011).
“[S]he lacked sufficient knowledge of the pay disparity that existed between [(a) her or (b) she] and male supervisors.” Polina Zhong, Note, Pregnancy Leave and Seniority Systems Under Title VII, 17 Cardozo J. L. & Gender 627, 650 (2011).
The following answers are keyed to two reference books containing answers to grammatical questions:Garner’s Modern American Usage (Oxford, 3d ed. 2009) and The Chicago Manual of Style (Chicago, 16th ed. 2010).
1. (a) arisen: GMAU 481; (b) led: GMAU 481; CMS 282.
2. (a) had: GMAU 481.
3. (a) gone: GMAU 481; CMS 283.
4. (b) might have: GMAU 586 (of (d)).
5. (b) cast: GMAU 135.
6. (b) regardless: GMAU 480–81; CMS 287.
7. (a) sprang: GMAU 770.
8. (b) beaten: GMAU 90; (b) exemplify: GMAU 178–79 (concord (a).
9. (b) categorically; (b) Categorical; GMAU 137, 828. (The double blunder in the original is truly spectacular.)
10. (a) was a party: GMAU 563–64 (neither (a)).
11. (a) him: GMAU 102–03 (between (c)).
12. (a) her: GMAU 102–03 (between (c)).