By Bryan A. Garner
Yet I come not to bury law reviews, but (on the whole) to praise them. They provide an excellent editorial training ground for aspiring lawyers, all of whom desperately need this kind of training. The law review provided my own happiest experiences in law school, and many of my students have said the same.
The shame is that not all law students benefit from this type of editorial training. If I were to devise the law-school curriculum afresh, a major component would be to ensure that everyone received significant editorial experience. It could easily be done if legal education weren’t so intractably resistant to change. But that’s another editorial.
The biggest benefit of widespread law-review training would be to enable our law graduates to pick up at least a modicum of knowledge about English usage. As the great law professor and legal writer Charles Alan Wright once wrote, “Most law students and lawyers do not understand the basic principles of English usage.” That was true when he penned the sentence in the late 1960s, and it is every bit as true today.
Okay, so this column will showcase some literary gore. But it’s all in fun. Think of the millions of sentences that law reviews published in correct form last year, as compared with the few unidiomatic blunders highlighted here.
As usual, I’ve couched the sentences as a quiz so that you may test your skills. See how you stack up against the squadrons of law-student editors who allowed these errors to pass into print. I exhort you to try answering all the questions before peeking at the answers. Assume that your school’s honor code is in effect.
- “The attorney must strive to keep the lines of communication between [(a) he; or (b) him] and his client open.” (Oklahoma City University Law Review)
- “He who suffered the loss must be compensated by [(a) she; or (b) her] who inflicted the wrong.” (University of Toronto Law Journal)
- “Before Houston Law Review was [(a) begotten; or (b) begat], the University of Houston was.” (Houston Law Review)
- “At one point, the midday liquor break was considered benign, and drinking upon turning eighteen years of age was a ‘[(a) right; or (b) rite] of passage.’” (Michigan State University Journal of Medicine & Law)
- “While theories exist to ground intellectual property rights—especially copyright—as [(a) just deserts; or (b) just desserts] flowing from one’s intellectual labor, as a matter of ‘natural rights,’ the notion of [(a) just deserts; or (b) just desserts] in general does not dispositively define the fruit that should flow from one’s first act of possession.” (Cardozo Law Review)
- “The defendants were transferred to military jurisdiction and the Circuit Attorney apparently entered a nolle prosequi, dismissing the action. The case then appears in the records of the Provost Marshal, who in October 1864, initiated [(a) court-marshal; or (b) court-martial] proceedings against the four suspects.” (Missouri Law Review)
- “In laymen’s terms, this means a court would not let a big strong union crush a small weak secondary employer, but [(a) might; or (b) might would] let a big strong union take on a big strong secondary company whose actions affect the primary dispute.” (Comparative Labor Law & Policy Journal)
- “Lincoln, Nebraska, has one of the more [(a) unique; or (b) interesting] chicken ordinances when it comes to limiting the number, in that it not only provides for a maximum number of chickens, but also a minimum.” (Environmental Law Reporter News & Analysis)
- “It would have sent the signal to those African heads of state who began complaining when Mr. al-Bashir was indicted that no one, not even national leaders, [(a) is; or (b) are] above the law.” (Journal of Parliamentary & Political Law)
- “One of the things that [(a) makes; or (b) make] legal scholarship distinctive is that law reviews publish works by students, who almost by definition are not yet experts in the field.” (Journal of Legal Education)
Key to Correct Answers
GMAU = Garner’s Modern American Usage (3d ed. 2009)
GDLU = Garner’s Dictionary of Legal Usage (3d ed. 2011)
An asterisk before a word or phrase indicates an invariably inferior form.
- (b) him. It’s the object of the preposition between. If the idea is to be gender-neutral, make it keep the lines of communication with the client open. (See GMAU at 102, 663–64; GDLU at 108–09, 719.)
- (b) her. It’s the object of the preposition by. (See GMAU at 663–64, 860–61; GDLU at 719, 944–45.)
- (a) begotten. Begat, an archaic past tense, is a misbegotten past participle. (See GMAU at 92–93;GDLU at 110.)
- (b) rite. It’s not a right. (See GMAU at 721.) Truth be told, the original sentence hyphenated midday—even though in AmE it’s solid. I tacitly corrected that misstep so that you could concentrate on the serious error.
- (a) just deserts. The mention of fruit in the same sentence as *just desserts deliciously compounds the error. (See GMAU at 492; GDLU at 508.)
- (b) court-martial. This is arguably ambiguous. Were the defendants being tried under military jurisdiction in a court martial or in a civilian marshal’s court? Surely it’s court martial. (See GMAU at 211; GDLU at 232.)
- (a) might. Either might or would could be acceptable, depending on the writer’s intended meaning. But might would never would be. It’s called a double modal, which is typical of dialectal English. Laymen’s terms indeed! (See GMAU at 274–75.)
- (b) interesting—or, perhaps unusual. Unique means “one of a kind” and accepts no qualifiers. (SeeGMAU at 831; GDLU at 913–14.)
- (a) is. Read no one. . . is. The not even phrase is not part of the subject, so it doesn’t control the number of the verb. (See GMAU at 571.) It would have been better to write not even a national leader is.
- (b) make. This verb is controlled by things [the antecedent of the relative pronoun that], not one. (See GMAU at 591–92; GDLU at 634.)
How did you do? Check your answers against the key. If you got eight or more correct, you know a good deal about English usage—and you’d make a fine editor. Your years of reading, and of paying attention while doing so, have paid off. If you scored below that, you essentially have two choices: (1) dismiss the importance of the quiz and believe that you’re truly brilliant anyway, or (2) consider it a sobering self-assessment and promptly start working on your English skills by acquiring a usage guide such as Fowler’s Modern English Usage (2d ed. 1965), the newest edition of The Chicago Manual of Style (16th ed. 2010), or my own Garner’s Modern American Usage (3d ed. 2009).
If you got just one answer right, don’t be so very despondent. In fact, you might gloat just a little: after all, the law-review editors cumulatively scored 0 percent on the quiz. Remember that anyone could score 100 percent simply by looking up questionable points in a reliable guide.