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In its first edition, A Dictionary o f Modem

Legal Usage became a classic in its field.


The first com prehensive guide to legal
style and usage, it filled a gap in refer­
ence literature by giving practical advice
on how to write dear, jargon-free legal
prose. Lawyers, judges, and law students
have com e to rely on DMLU, as have
many who confront the language o f the
law in related fields, inducting journal­
ism, business, and finance. Described in
the Harvard Law Review as “a work wor­
thy o f com parison to H.W. Fowler’s Dic­
tionary o f Modem English Usage? DMLU
has becom e an indispensable reference.
Now Bryan A. Garner has thoroughly
updated his award-winning work for this
new edition. More than double the length
and coverage o f the original, this ex­
panded DMLU offers the latest and the
last word on legal style and usage. Gar­
ner has drawn on his unrivaled experi­
ence as a legal editor to refine his posi­
tions on legal usage and to add a wealth
o f new material.
As much a style guide as a law dictio­
nary, DMLU provides concrete answers
and practical solutions to linguistic ques­
tions and stylistic dilemmas that com ­
monly confront the legal writer. Easy-to-
follow guidelines and illustrations steer
readers away from grammatical blunders
and linguistic pitfalls. The text contains
thousands o f quotations from judges and
prom inent legal minds, along with en­
gaging essays that explore the many is­
sues that m odern legal writers routinely
face.
DMLU in its second edition remains, as
one reviewer hailed it in 1987, “ truly
unique in the literature o f law.” It is an
essential resource for practicing lawyers,
legal scholars, and countless others who
deal with legal language.
A DICTIONARY OF MODERN LEGAL USAGE
A DICTIONARY OF

MODERN
LEGAL USAGE

SECOND EDITION

Bryan A. Garner
OXFORD UNIVERSITY PRESS
Oxford New York
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Kuala Lumpur Madras Madrid Melbourne
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and associated companies in
Berlin Ibadan

Copyright © 1987,1996 by Bryan A. Gamer

Published by Oxford University Press, Inc.,


198 Madison Avenue, New York, New York 10016
Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.

Library of Congress Cataloging-in-Publication Data


Gamer, Bryan A.
A dictionary of modem legal usage / Bryan A. Gamer. — 2nd ed.
p. cm.
Includes bibliographical references.
1. Law—United States—Terminology. 2. Law—United States—
Language. 3. Legal composition. 4. English language—Usage.
I. Title.
KF156.G367 1995 340\03—dc20 95-3863
ISBN 0-19-507769-5

Acknowledgments of permission to quote from previously


published works are made in a special section
on page 953.

Printing (last digit): 9 8 7 6 5 4 3 2


Printed in the United States of America
on acid-free paper
For Teo
and, our children,
Caroline and Alexandra
CONTENTS

Preface to the Second Edition, ix

Preface to the First Edition, xiii

Classified Guide to Essay Entries, xvii

Pronunciation Guide, xxiii

List of Abbreviations, xxv

MODERN LEGAL USAGE

Select Bibliography, 949

Acknowledgments of Permission, 953


PREFACE TO THE SECOND EDITION

A lthough there is much new material in this second edition, little need be
said by way o f introduction. I therefore confine this space to a word about
citations and a listing o f my literary debts.
Readers familiar with the first edition will note that I have added sev­
eral thousand new illustrative quotations, with full citations. This repre­
sents a significant change in approach.
When writing the first edition, I omitted citations for four reasons. First,
I was following the model o f H.W. Fowler’s Modern English Usage (1926),
which simply quotes sentences from anonymous sources. (His earlier work,
The King's English (1906), which he cowrote with his brother, F.G., named
sources such as The Times but gave no detailed citation.) Second, because
the quotations merely reflected what I was reading at the time, they came
predominantly from judicial opinions issued by Texas courts and the U.S.
Court of Appeals for the Fifth Circuit; having just completed a Fifth Circuit
clerkship as I finished the manuscript in 1985, I thought it would not be
particularly gracious o f me, in a work o f this kind, to cite a disproportion­
ately high percentage o f Fifth Circuit opinions. Third, as I had begun prac­
ticing law in Texas, it seemed imprudent to cite the work of judges before
whom I might appear. Finally, the lawyers’ briefs from which I drew quota­
tions did not lend themselves to citation.
Although I still quote briefs without citing them, other sources are now
fully cited. Why? I now think it helpful to show sources—helpful both legally
and lexicographically—so I reject Fowler’s approach. Further, the citations
in this second edition represent a breadth that was unattainable for the
first edition, so I am satisfied that the sources from Texas and surrounding
states are only slightly overrepresented, if at all. Finally, I am satisfied that
the lexicographic value o f citations outweighs the risk o f offending someone
who has written something that might offend against the language.
I have tried to be dispassionate in my approach to citations. This means,
for example, that I have unfavorably cited my own work (see bequ est), the
work o f my grandfather (see f e o f f (C)), and the work of my mentor, Charles
Alan Wright (see disin terested ). O f course, in Wright’s case, there must be
100 other instances in which I quote him favorably.
One more thing about citations. I collected many of them before 1991,
when the Bluebook began to require first names for authors of books and
articles. This caused me no end o f needless work, but there were finally a
few elusive citations for which neither I nor my research assistants—nor,
indeed, my allies in law libraries— could fill in the blanks. In those few
instances, I made concessions to the shortness o f life and followed the pre-
1991 Bluebook form.
Readers will find that this edition is much enriched with quotations not
only from cases, but also from books and other sources. The shame is that
it is not more enriched than it is, for in January 1991 a small lexicographic
catastrophe occurred— an event that will no doubt bedevil me for as long as
I care about lexicography. That month, I arranged to ship some 40 lawbooks

ix
Preface to the Second Edition

from my office at the University o f Texas to the American office of the Ox­
ford Dictionary Department. These books had been thoroughly marked up
for excerpting thousands of illustrative quotations, and they represented
several years o f work. Mysteriously these books—which were to be returned
to me for use in preparing this edition— disappeared. They have never been
accounted for. And the work that went into marking them can probably
never be duplicated.
That loss, though, has been greatly outweighed by the tremendous help
I have received from dozens o f friends and colleagues. My debts are vast. I
must merely list them as an insolvent debtor might do, in schedule form.
Some o f these friends have simply sent me comments and suggestions with­
out my ever having met them face to face. Others I have known for many
years, and I merely prevailed upon them to look over several entries within
their areas o f expertise; luckily for me, no one ever seemed prevailed upon—
in fact, quite the opposite. They have all helped in splendid ways:

David Anderson (the late) Thomas Gibbs Douglas Laycock


Michèle M. Asprey Gee Clyde Leland
Hans W. Baade Lord Goff of Chieveley Thomas B. Lemann
J.H. Baker Erwin N. Griswold Sanford Levinson
Griffin B. Bell R.J. Grogan, Jr. David J. Luban
John A. Bell Alan Gunn Joseph R. Lundy
Vicki V. Bonnington (the late) Alan M.F. Peter G. McCabe
A.W. Bradley Gunn Neil MacCormick
Jeffrey B. Brawner David Gunn Becky R. McDaniel
John Browning Robert W. Hamilton Thomas 0. McGarity
Robert W. Burchfield Trevor C. Hartley Lord Mackenzie-Stuart
Jenny Burg John L. Hauer Joseph McKnight
Beverly Ray Burlingame Geoffrey C. Hazard, Jr. Nanneska N. Magee
Peter Butt Nathan L. Hecht Karen Magnuson
Thomas Cable Dewey R. Hicks, Jr. John Mann
Lauren Chadwick William B. Hilgers Thomas Mayo
Neil H. Cogan Nancy Hoagland Sir Robert E. Megarry
Charles Dewey Cole, Jr. Wm. Terrell Hodges Roy M. Mersky
Kirsten L. Concha Peter W. Hogg Ernest Metzger
Edward H. Cooper Steve Holmes Richard H. Miller
Daniel R. Coquillette Tony Honoré Fred Misko, Jr.
Sir Brian Cubbon Hadley Huchton B. Prater Monning
Robert O. Dawson Lynn N. Hughes James E. Moore
A. Darby Dickerson Laird Hunter Frederick Moss
Lance E. Dickson Stanley Johanson Ron Moss
Robert Eagleson Robert H. Johnston III R. Eric Nielsen
Frank H. Easterbrook Michael E. Keasler John T. Noonan, Jr.
Eric B. Easton Robert E. Keeton James A. Parker
David Elliott William Keffer David Peeples
Stephen F. Fink Elizabeth S. Kerr Kenneth L. Penegar
Betty S. Flowers Joseph Kimble Richard W. Pogue
Caroline B. Garner N. Stephan Kinsella Rick Prahl
Gary T. Gamer Kenneth S. Klein George C. Pratt
Teo Gamer Karen Larsen Jonathan Pratter
Preface to the Second Edition xi

Jack Ratliff Katherine Smith Richard S. Walinski


Alan Rau David Simon Sokolow David M. Walker
Hal R. Ray, Jr. Bruce S. Sostek Patricia H. Webb
Thomas M. Reavley Joseph F. Spaniol Russell J. Weintraub
Charles Rembar Martin Stanford Carla Wheeler
Christopher Ricks Mark E. Steiner Julie J. White
Kenneth F. Ripple Alicemarie Stotler Sir David G.T. Williams
Marlyn Robinson Michael Sturley William R. Wilson
Kimberly Rogaliner Pat Sullivan Sir Harry Woolf
C. Paul Rogers III Barbara M. Tearle Charles Alan Wright
David Schultz Linda Thomas Custis Wright
Fred Shapiro Randall M. Tietjen Suzanne F. Young
David J. Sharpe Michael Tigar Mark G. Yudof
Christopher Simoni John R. Trimble
A.W.B. Simpson John W. Velz

If Fve omitted anyone, as I must have, my apologies.


Perhaps my vastest debts are to David M. Walker, of Glasgow, and Bev­
erly Ray Burlingame, o f Dallas. These fine scholars read the whole of my
first draft and gave detailed comments in the margins. I doubt that there is
a page in the book that hasn’t been improved by their work.
Law librarians have repeatedly come to my aid. I’ve received the most
help from Roy M. Mersky and his staff at the Tarlton Law Library in Aus­
tin. David Gunn in particular has generously run down countless sources
for me, with uncommon skill and verve. Likewise, the Southern Methodist
University Law Library has been extremely helpful. I cannot overstate how
important it was to my research when the director, Gail Daly, gave me two
card catalogues for storing lexicographic cards. (That may sound quaint in
the age o f computers, but index cards remain indispensable to lexicogra­
phers everywhere.) Finally, Barbara Tearle and R.G. Logan of the Bodleian
Law Library, in Oxford, kindly helped me track down some sources that
were otherwise inaccessible. As you might guess, I have never met a law
librarian I didn’t like.
I’m grateful to Dean Paul Rogers o f S.M.U. Law School for allocating
research-assistant funds that made it possible for me to have all quotations
and citations verified. I don’t know another dean who would extend this
courtesy to a form er faculty member, but S.M.U. is a special place.
I’ve benefited enormously from the teaching I’ve done in continuing legal
education, primarily through LawProse, Inc. From my LawProse col­
leagues—Betty S. Flowers and John R. Trimble, both English professors at
the University o f Texas at Austin—I have learned a great deal. Many of the
new entries show the influence they have had on me: from Betty I have
learned more about the writing process, and from John I have learned more
about effective editing. John has also contributed useful terminology, such
as “miscues,” and is largely responsible for my about-face on the subject of
contractions.
I’ve also learned from the thousands o f lawyers who have participated
in LawProse workshops on legal writing and legal drafting. Through ques­
tions and comments, many of these participants have given me a deeper
understanding of specific legal-linguistic issues.
xii Preface to the Second Edition

The members of the H.W. Fowler Society—a loose organization I


founded in order to monitor m odem usage—have contributed dozens o f ex­
amples and ideas for headwords. Most notably, John W. Velz, a great Shake­
spearean scholar and professor emeritus of English at the University of
Texas at Austin, has faithfully sent me hundreds of so-called gleanings. I
would not have entries such as the ones on w ile aw ay and w reck less if it
weren’t for him.
This edition owes much to Claude Conyers and Nancy Hoagland of Ox­
ford University Press. Time and again, Claude approved my requests for
extraordinary assistance o f one kind or another. And Nancy is the author’s
dream o f what a production editor should be: perfectionist and highly pro­
prietary in her approach to the book, but respectful on those rare occasions
when I perversely resisted her improvements.
I am much indebted to my wife, Teo, for all her support while I’ve la­
bored over this book. During my first week of law school in 1981, I told her
o f my plan to write it— I even told her the name o f it—and she didn’t laugh.
Indeed, she encouraged me. We also became engaged that week, and she
saw me beginning the work on 3-by-5 cards, which in the coming years
accumulated in mountainous piles. Between 1981 and 1987, she suppor-
tively watched the book materialize, and many entries have benefited—both
in the first edition and in this one— from her fine scholarly judgment.
When DM LU came out in 1987, my daughter Caroline had just been
born some six months earlier. There is a funny photograph of her sitting
beside the one-foot-tall pile of manuscript. Now she is eight, and her sister,
Alexandra, is three; meanwhile, the manuscript pile has doubled in size. As
my girls continue to grow, I’m rather hoping that DM LU has reached its
full maturity. But I somehow doubt it.
PREFACE TO THE FIRST EDITION

In 1921, an article in the Am erican Bar Association Journal called for a


book on “writing legal English.” 1 The author of that article, Urban A. La-
very, pointed out that lawyers rarely consult a book on grammar or composi­
tion even once to the hundred o f times they consult lawbooks; and yet, as
he observed, when convincing argument is to the fore, or clearness o f ex­
pression is desired, the elements o f good writing are often more important
than piled up citations o f cases.2 Since Lavery proclaimed his judgment,
many books on “writing legal English” have been published, but none with
the broad scope or easy accessibility that might allow readers to resolve at
a glance the many grammatical and stylistic questions that arise in legal
writing. Filling that gap is the goal o f this book.
Anglo-American law has a language o f its own, consisting in a vocabu­
lary with an unusually large number o f foreign phrases, archaic words and
expressions, terms o f art, and argot words. Its formal style reflects the dig­
nity and solemnity with which the profession views its mission. These dis­
tinctive qualities o f legal language— evident alike in the speech and the
writing o f lawyers— are well enough documented. What has remained uncol­
lected and unscrutinized in any systematic way is the vast body of legal
usage.
For a specialist language, the language of law remains remarkably vari­
able, largely because it has been incompletely recorded and mapped. In this
respect it is analogous to English before 18th-century grammarians at­
tempted to reduce its variability and make logical its many quiddities. This
is not to say, o f course, that the language o f the law has the malleable
capacity o f Elizabethan English, which, in the hands o f a creative genius
like Shakespeare, could be supremely expressive and evocative. Quite the
opposite. Stare decisis remains at the core of our system of law— so much
so that the continual search for precedents often discourages legal writers
from straying beyond precisely how things have been said before. As a re­
sult, many locutions have become fossilized in legal language over genera­
tions. And the inheritors o f that language cannot always distinguish mere
form from necessary substance, to the extent that form and substance are
ever separable.
Legal traditionalists may be justified in not wanting to throw over too
readily what has long served well. Yet tradition alone is not sufficient rea­
son for retaining outmoded forms o f language. Modern legal writers must
strike a difficult balance in the quest to simplify legal English. They should
not cling perversely to archaic language, which becomes less comprehensible
year by year, for its own sake. Nor should they seek to jettison every word
or phrase that bears the stamp o f legal tradition.
As for students o f law, they learn the technical language that they will
need—the quirks o f legal jargon, the peculiar idiomatic expressions, the

lavery, The Language of the Law, 7 A.BA. J. 277 (1921).


2Id. at 280.

xiii
xiv Preface to the First Edition

grammatical idiosyncrasies, the neologisms that cannot be found even in the


most current unabridged dictionaries—largely by osmosis. These linguistic
matters are, for the most part, seldom discussed by lawyers or law profes­
sors; rather, they are part o f the spoken and written legal discourse that
neophyte lawyers absorb every day and learn to use unconsciously. This
casualness in acquiring the language frequently leads to variable and con­
tradictory linguistic habits that need explicating, codifying, and, in some
instances, taming.
Granted these basic facts o f legal language— the course o f its growth,
the challenge of its use, the pattern o f its acquisition—this book aims at
serving three primary functions. First, it helps lawyers chart their way
safely through the bogs o f legal language. In the past, anyone wanting such
a guide has had to make do with general writing manuals. Though this
dictionary lays no claim to comprehensiveness, it offers the legal writer
guidance on hundreds o f specific points o f usage. The advice it gives is gen­
erally on the conservative side o f usage and grammar, for the^imple reason
that lawyers generally write in a relatively formal context. Lapses from
what has come to be accepted as correct irritate and distract the educated
reader, and this makes the writing less persuasive. Yet the conservative
approach exemplified in these pages aspires to be an informed conservatism,
one that neither battles hopelessly against linguistic faits accomplis nor re­
mains blind to the inevitable growth and change that occur in language.
Second, the dictionary addresses a great many usage problems that do
not ordinarily arise in the writing o f persons untrained in the law, and
therefore that are not addressed in standard writing guides. Certainly it
covers territory common to general guides, as inevitably it must. But one of
its chief uses should be in pointing out divergences between legal and lay
usage, many o f which have remained heretofore unrecorded. To this end,
the dictionary serves lawyers and nonlawyers alike, for it can help both
groups bridge the linguistic gulf that separates them, to the degree that is
possible. The greater effort here needs to be made by lawyers, who in recent
years have become increasingly aware o f the importance of using legal lan­
guage that is simple and direct. Indeed, simplicity and directness, two of
the touchstones o f good writing, are advocated throughout this dictionary in
an effort to tag and to discard legalese and highfalutin jargon.
Third, this work may serve, to some extent, as an instrument o f reform.
Where lawyers and judges use terms imprecisely or ambiguously (or, in­
deed, incorrectly), this dictionary often presents standards that will enhance
rather than destroy valuable nuances. If ever a prescriptive approach to
language is justified, it is in law, where linguistic precision is often òf para­
mount concern, and where ambiguity and vagueness (except when purpose­
ful) are quite intolerable. Within its compass, the dictionary thus seeks to
preserve the rich differentiation in our legal vocabulary, to set out some of
the important grammatical usages and traditional idioms, and to oppose
slipshod usages that blur well-developed distinctions. O f course, no work of
this kind can be a panacea for the problems that occur in legal writing. But
such a work can realistically seek to make legal writers sensitive to the
aesthetic possibilities of their prose, to goad them into thinking more
acutely about what works in a given context, and what does not.
Modern Legal Usage is arranged so that the legal writer, unsure of or
Preface to the First Edition xv

puzzled by a particular word or point o f grammar, can consult a specific


entry addressing the problem at hand. Virtually all the sentences quoted
to illustrate legal usage, including linguistic pitfalls, originated in judicial
opinions. A few come from statutes, fewer still from lawyers’ briefs and
other sources. The authors o f the quoted specimens generally remain anony­
mous, because ordinarily it is unimportant who made a particular mistake.
Attention should be focused on the mistake itself, and how to remedy it.
Where stare decisis is the ruling principle, citations are necessary; in a dic­
tionary o f usage they are not, except o f course when documenting usages
that are lexicographically noteworthy. Whenever specimens do receive attri­
bution, the importance o f that fact lies in documenting the source, not in
giving context to the quoted matter; hence subsequent histories o f cases
cited are not given.

U ndertaking to write a dictionary o f this kind is a precarious task. For by


setting oneself up as an arbiter o f usage, one also sets one’s prose before the
magnifying glasses o f readers, who are certain to find blemishes o f one sort
or another. Such was H.W. Fowler’s fate in his Dictionary o f Modern En­
glish Usage (1926), a work that has served me as both exemplar and cau­
tion. For whatever may be amiss or at fault in this dictionary, I readily
acknowledge full responsibility in advance.
As my manuscript swelled, any number o f friends and colleagues looked
on with far more than a polite interest. Several have actively contributed to
whatever merit the final product has. Randall K. Glover o f Austin and Kelly
Bowers o f Seattle called problematical words to my attention almost daily
during the year we worked side by side for Judge Thomas M. Reavley. The
Judge himself, whose approach to life and law cannot but inspire, gave me
advice and encouragement that emboldened me to persevere.
Several fellow lawyers undertook to read large portions o f the manu­
script and made expert comments throughout. My learned friends Dr. Betty
S. Flowers, David Radunsky, Michelle D. Monse, Roy J. Grogan, Jr., Hal
Roberts Ray, Jr., Joe W. Pitts III, Alfredo Estrada, Roger Arnold, Lindsay
H. Lew, Kenneth S. Klein, Lisa M. Black, Laura Cale, Sim Israeloff, and
Jeffrey B. Brawner have all left the work sharper than they found it. I am
indebted also to the late John N. Jackson, whose comments reflected years
o f thought on the subject o f legal writing style.
The Honorable Robert W. Calvert, formerly Chief Justice of the Supreme
Court of Texas, generously read and marked up a prototypical draft of the
work; he kept me on the reader’s path and gave me a number of useful
ideas. I am grateful to Justice Sandra Day O’Connor for corresponding with
me on some o f the stylistic practices o f the United States Supreme Court.
Edmund S.C. Weiner, the accomplished Oxford lexicographer, and Mar­
tin S. Stanford, an extremely knowledgeable and thoughtful editor in New
York, minutely read the full manuscript and made innumerable improve­
ments. To these two scholars I am especially beholden, as I am to my father,
Dr. Gary T. Garner, who spent many hours reading galleys.
Finally, I cannot adequately express my gratitude to my dear wife, to
whom this book is dedicated, for her keen insights and unfaltering support
in the face o f what must have seemed at the outset to be a grossly overambi-
tious task.
CLASSIFIED GUIDE TO ESSAY ENTRIES

T h is guide lists essay entries that may be grouped according to (1) style;
(2) grammar and usage; (3) legal lexicology and special conventions; (4) word
formation, inflection, spelling, and pronunciation; and (5) punctuation and
typography. The guide does not include any entries that are concerned only
with the meaning or idiomatic use o f title words, or with their spelling,
pronunciation, etymology, or inflections.

Style
ABSTRACTITIS DEFINITIONS
ACRONYMS AND INITIALISMS A. When to Use
ALLITERATION B. Lexical and Stipulative Definitions
A. Rhetorically Effective Examples C. Inept Definitional Terms
B. Unconscious Examples D. “Stuffed” Definitions
AMBIGUITY
E. Placement
A. Uncertain Stress F. Signaling Defined Terms in Text
B. Syntax G. When to Compose
C. Poor Word Choice DOCUMENT DESIGN

AMERICANISMS AND BRITISHISMS A. A Readable Typeface


B. White Space
ANFRACTUOSITY
C. Headings and Subheadings
ANTHROPOMORPHISM
D. Avoiding All Caps
ARCHAISMS
E. Avoiding Underlines
ARGUMENT, MODES OF F. Listing
BIBLICAL AFFECTATION G. Bullets
BRIEF-WRITING H. Hanging Indents
BURIED VERBS I. A Ragged Right Margin
CASE REFERENCES J. Citations in Footnotes
A. Short-Form References K. Characters Per Line
B. Locatives with DOUBLETS, TRIPLETS, AND SYNONYM-STRINGS
C. As Attributive Adjectives DRAFTING
D. Hypallage with ENUMERATIONS
E. Personification of Cases A. Firstdy), seconddy), thirddy); one, two, three
CHAMELEON-HUED WORDS B. Comma Before the Last Member
CITATION OF CASES ETYMOLOGICAL AWARENESS
A. Beginning Sentences with Citations EUPHEMISMS
B. Mid-Sentence Citations FIRST PERSON
C. Incidental Use of Case Names A. Awkward Avoidance of First Person
D. Citations in Text B. The Collegial we of Judges
CLICHÉS C. Approaching Autobiography
COLLOQUIALITY FLOTSAM PHRASES
COMPANY NAMES FOOTNOTES
COMPUTERESE A. Textual Footnotes
CONNOTATION AND DENOTATION B. For Citations
CONTRACTIONS FORBIDDEN WORDS AND PHRASES
CUTTING OUT THE CHAFF A. Generally Useless Words and Phrases
DATES B. Ignorant Malformations
A. Order FORMAL WORDS
B. Month and Year FORMS OF ADDRESS
C. As Adjectives A. Addressing Federal Judges
D. Written Out B. Addressing State-Court Judges
E. In Contracts C. Four Rules in Using The Honorable

xvii
xviii Classified Guide to Essay Entries

D. Mr, Justice; Mrs, Justice; Madam Justice B. Coupling Numerals with Words
E. Third-Person References C. Not Beginning Sentences with Numerals
F. Lawyer-to-Lawyer References D. Round Numbers
G. Signing Off E. Decades
H. The Lone Sincerely F. Judicial Votes
FUDGE WORDS OBSCURITY
FUSTIAN A. Overelaboration
GALLICISMS B. Initialese
GOBBLEDYGOOK OFFICIALESE

HERE- AND THERE- WORDS OVERPARTICULARIZATION

ILLOGIC OVERSTATEMENT
A. Illogical Comparison OXYMORONS
B. Danglers and Misplaced Modifiers PARALEIPSIS
C. Disjointed Appositives PASSIVE VOICE
D. Mistaken Subject of a Prepositional Phrase A. The Otiose Passive
E. Insensitivity to Metaphor B. Confusion of Active and Passive Constructions
F. Poor Exposition of Sequence C. The Ambiguous Passive
G. Vexatious Little Words with Plain Meanings D. Active Wrongly Used for Passive
H. Complete Obliviousness in the Task of Writing E. The Dishonest Passive
INELEGANT VARIATION F. The Double Passive
INITIALESE G. Special Active Use with issue
IRONY PERIPHRASIS
ISSUE-FRAMING PERSON
A. Generally PHRASAL ADJECTIVES
B. Deep vs. Surface Issues A. General Rule
C. Persuasive vs. Analytical Issues B. Phrasal Adjectives of Foreign Origin
D. Readers’ Reactions C. Snakelike Compounds
E. The Importance of It All D. Suspension Hyphens
JARGON E. Amount or Period of Time
A. Definition F. Proper Noun
B. Jargonmongering G. Phrasal Adjectives Following the Noun
LATINISMS H. Phrases with Only One Element Joined
LEGALESE PLAIN LANGUAGE

LEGALISMS AND LAWYERISMS A. Generally


B. Definitions
LEGAL WRITING STYLE
C. An Old Idea
A. General Legal Writing
D. Plain-Language Principles
B. Brief-Writing
E. Efforts to Use Plain Language
C. Drafting
F. The Trouble with the Word “Plain”
D. Judicial Opinions
G. Prospects
LITERARY ALLUSION
H. A Plain-Language Library
A. Effective Use of Allusion
PSITTACISM
B. Poor Use of Allusion
PUNS
MAXIMS
PURPLE PROSE
METAPHORS
A. Mixed and Mangled Metaphors QUOTATIONS
B. Legal Metaphors A. Use of Quoted Material
C. The Overwrought Metaphor B. Handling Block Quotations
MISCUES
C. Punctuating the Lead-In
D. American and British Systems
A. Unintended Word Association
B. Misplaced Modifiers E. Ellipses
C. Remote Antecedents REDUNDANCY

D. Failure to Hyphenate Phrasal Adjectives A. General Redundancy


E. Misleading Phraseology B. Awkward Repetitions
F. Ill-Advisedly Deleted that C. Common Redundancies
MYTH OF PRECISION, THE RHETORICAL QUESTIONS

NEOLOGISMS SEMANTICS

NOUN PLAGUE SENTENCE ENDINGS

NUMERALS SENTENCE LENGTH

A. General Guidance in Using SET PHRASES


Classified Guide to Essay Entries xix

SEXISM I. Never Use the First-Person Pronouns I and


A. The Pronoun Problem me
B. Words in man- and -man J. Never Use Contractions
C. Feminine Forms in -ess and -trix K. Never Use you in Referring to Your Reader
D. Equivalences SYNONYMY
E. Statute of Limitations TAUTOLOGY
SIMILES TERMS OF ART
SLIPSHOD EXTENSION TITULAR TOMFOOLERY
SOUND OF PROSE, THE VERBAL AWARENESS
A. Undue Alliteration or Rhyme VERBOSITY
B. Unwieldy or Illogical Imagery VOGUE WORDS
C. Unnecessary or Awkward Repetition
WEASEL WORDS
D. Arrhythmic Plodding
WOOLLINESS
E. Jarring Contrasts
WORD-PATRONAGE
F. Misleading Parts of Speech
WORDS OF AUTHORITY
SUPERFLUITIES
A. Shall
SUPERSTITIONS
B. Shall not
A. Never End a Sentence with a Preposition
C. Must
B. Never Split an Infinitive
D. Will
C. Never Split a Verb Phrase
E. May
D. Never Begin a Sentence with and or but
F. Must not; may not
E. Never Write a One-Sentence Paragraph
G. Is entitled to
F. Never Begin a Sentence with because
H. Using a Consistent Glossary
G. Never Use since to mean because
H. Never Use between with More Than Two
Objects

G ram m ar and Usage


ABSOLUTE CONSTRUCTIONS BE-VERBS
ADJECTIVES A. Wrongly Omitted in Nonfinite Uses
A. What One Is B. Circumlocutions
B. Uncomparable Adjectives C. Used Unidiomatically in Place of Action Verbs
C. Adjectives as Nouns CENTURY DESCRIPTIONS
D. Adjectives as Verbs COLLECTIVE NOUNS
E. Coordinate Adjectives COMPARATIVES AND SUPERLATIVES
F. Proper Nouns as Adjectives A. Choice Between Comparative and Superlative
G. Pronominal Indefinite Adjectives B. Which to Use—Suffixes, or more and most?
H. Past-Participial Adjectives C. Swapping Horses
ADVERBS, PROBLEMS WITH D. Be-Verbs Repeated After Comparatives
A. Placement of Adverbs CONCORD
B. Awkward Adverbs A. Subject-Verb Disagreement
C. Adjectives or Adverbs After Linking Verbs B. Noun-Pronoun Disagreement
D. Redundantly Formed Adverbs C. One Result Wrongly Attributed to Two or More
ANTECEDENTS, FALSE Subjects
A. Ghostly Antecedents CORRELATIVE CONJUNCTIONS
B. False Attraction A. Neither. . . nor
C. With Possessives B. Either. . . or
ANTICIPATORY REFERENCE C. Both . . . and
A. As do D. Although . . . yet
B. Noun References E. Notwithstanding . . . yet
C. Pronouns F. Other Correlatives
A PPO Sm VES COUNT NOUNS AND MASS NOUNS
A. With Possessives A. Fewer and less
B. Punctuation B. Treating a Mass Noun as a Count Noun
ARTICLES DANGLERS
A. Omitted Before Party Denominations A. Danglers Ending in -ing
B. Wrongly Omitted B. Past-Participial Danglers
C. Wrongly Inserted C. Dangling Gerunds
D. Repeated
xx Classified Guide to Essay Entries

D. Acceptable Danglers or Disguised PHRASAL ADJECTIVES


Conjunctions A. General Rule
E. Ending Sentences with B. Phrasal Adjectives of Foreign Origin
DEICTIC TERMS C. Snakelike Compounds
DIFFERENTIATION D. Suspension Hyphens
DIRECTIONAL WORDS E. Amount or Period of Time
A. Ending in -ward(s) F. Proper Noun
B. Verbose Constructions G. Phrasal Adjectives Following the Noun
C. Capitalization H. Phrases with Only One Element Joined
EXPLETIVES PHRASAL VERBS
A. With Passives POSTPOSITIVE ADJECTIVES
B. Number PREDICATE NOMINATIVES
C. Expletive it Alongside Pronoun it PREPOSITIONS
FUSED PARTICIPLES A. Ending Sentences with
A. The General Rule B. Redundancy of
B. Unnecessary Participles C. Wrongly Elided
C. No Fused Participle D. Correctly Matching with Verbs
GERUNDS E. Repetition of After Conjunctions
GRAMMAR F. Getting It Wrong
HYPALLAGE PRONOUNS

HYPERCORRECTION REMOTE RELATIVES


A. False Latin Plurals RESTRICTIVE AND NONRESTRICTIVE CLAUSES
B. Between you and I A. Which for that
C. Number Problems B. Restrictive Clause Wrongly Made
D. Redundantly Formed Adverbs Nonrestrictive
E. As for like C. Series
F. Whom for who RUN-ON SENTENCES
G. Unsplit Infinitives Causing Miscues SENTENCE ADVERBS
H. Unsplit Verb Phrases SPLIT INFINITIVES
I.Prepositions Moved from the End of the A. Splits to Be Avoided
Sentence B. Justified Splits
J. Borrowed Articles for Borrowed Nouns C. Awkwardness Caused by Avoiding Splits
K. Overrefined Pronunciation SUBJECT-VERB AGREEMENT
INCOMPLETE SENTENCES A. False Attraction to Noun Intervening Between
A. Fragments Subject and Verb
B. Incomplete Sentences in Informal Writing B. Reverse False Attraction
INVERSIONS, GRAMMATICAL C. False Attraction to Predicate Noun
JANUS-FACED TERMS D. Compound Subjects Joined Conjunctively
A. Simultaneously Referring to the Case Name E. Alternatives
and the Name of the Person F. Plural Words Referred to as Words
B. Pronoun Used Also as an Expletive G. Misleading Connectives
C. Two Different Senses of the Same Word H. Plural Units Denoting Amounts
D. Word Referred to as a Word, While Purporting I. The False Singular
to Have Substantive Meaning as Well J. Inversion
E. Preposition Given Two Meanings K. Thing after thing (is) (are)
MALAPROPISMS L. Subject Area Implied
MISPLACED MODIFIERS M. One in five; one o f every five
NEGATIVES SUBJUNCTIVES
A. Colliding Negatives SWAPPING HORSES
B. Not un------; not in------ SYNESIS
C. Negative Prefixes TENSES
D. Periphrastic Negatives A. Sequence of
E. No and not B. Subjunctives
NOMINATIVE AND OBJECTIVE CASES C. The Historical Present
NOUNS AS ADJECTIVES D. Present Tense for Ongoing Truth
NOUNS AS VERBS E. Past-Perfect Tense
OBJECT-SHUFFLING TMESIS
PARALLELISM UNDERSTOOD WORDS

PARTICLES, UNNECESSARY ZEUGMA AND SYLLEPSIS

PASSIVE VOICE A. Syllepsis


B. Zeugma
Classified Guide to Essay Entries xxi

Legal L exicology and S pecial C onventions


BRIEF-WRITING
CASE REFERENCES LAW REVIEWESE
A. Short-Form References LAWYERS, DEROGATORY NAMES FOR
B. Locatives with A. Names Actually Given to Lawyers
C. As Attributive Adjectives B. Prejudicial Names for Other Forms of Life
D. Hypallage with LEGALESE
E. Personification of Cases LEGALISMS AND LAWYERISMS
CAUSATION MAXIMS
A. Proximate cause; legal cause; direct cause
MINGLE-MANGLE
B. Immediate cause; effective cause; causa
MYTH OF PRECISION, THE
causans
NEOLOGISMS
C. Producing cause; procuring cause
D. Intervening cause; supervening cause NONCE WORDS

E. Superseding cause; sole cause OPINIONS, JUDICIAL

CITATION OF CASES A. Tense


A. Beginning Sentences with Citations B. Judicial Humor
B. Mid-Sentence Citations C. Concurrences
C. Incidental Use of Case Names PARTY APPELLATIONS
D. Citations in Text POPULARIZED LEGAL TECHNICALITIES
COMMON-LAW PLEADINGS STATUTE DRAFTING
DOUBLETS, TRIPLETS, AND SYNONYM-STRINGS A. Generally
DRAFTING B. Choice of Words
C. Tenses Generally
EQUITY PLEADINGS
TERMS OF ART
FICTIONS
WORDS OF AUTHORITY
GALLICISMS
A. Shall
GOVERNMENTAL FORMS
B. Shall not
HERE- AND THERE- WORDS
C. Must
JARGON D. Will
A. Definition E. May
B. Jargonmongering F. Must not; may not
JUDGMENTS, APPELLATE-COURT G. Is entitled to
LATINISMS H. Using a Consistent Glossary
LAW FRENCH WORLD COURT PLEADINGS
LAW LATIN

W ord F orm ation, In flection , Spelling, and P ron u n ciation


-ABLE B. Word Formation
A. Choice of -able or -ible C. Stylistic Use of
B. Appended to Nouns EN-, IN-
C. Converting -ate Verbs into -able Adjectives -ER
D. Dropping or Retaining the Medial -e- A. And -or
AE B. Suffix -er Misleadingly Suggesting Agent Noun
-AHOLIC, -AHOLISM in Law Words
ANTE-, ANTI- C. And -re
-ATABLE -ETH

BACK-FORMATIONS EXTRA-

BI-, SEMI- FOR-, FORE­

-CIDE HYBRIDS

CO- INTER-, INTRA-


A. Hyphenation with -IZE, -ISE
B. Attaching to Noun Phrase A. Verbs Ending in -ize
COUNTER­ B. Verbs Ending in -ise
DOUBLING OF FINAL CONSONANTS JURIDICO-

-EDLY LEGO-

-EE LOAN TRANSLATIONS


A. General Principles MORPHOLOGICAL DEFORMITIES
xxii Classified Guide to Essay Entries

M UTEE D. Of Inanimate Things


NEEDLESS VARIANTS E. Incorrect Omission of Apostrophe
NEGATIVES
F. Past-Participial Adjectives as Attributive
Nouns
NON-
G. Phrasal Possessives
A. As a Separable Prefix
H. Followed by Relative Pronouns
B. With Nouns
I. Attributive Possessives
C. With Adjectives
POST-
D. With Verbs
PRE- [ + NOUN]
-OR, -OUR
PRONUNCIATION
PER-
A. General Principles
PLURALS
B. Commonly Mispronounced Lawyers* Words
A. Borrowed Words
C. Latin Terms
B. Mass (Noncount) Nouns
D. Law French
C. Words Ending in -o
E. BrE Idiosyncrasies
D. Nouns Formed from Past-Participial
RE- PAIRS
Adjectives
E. Compound Nouns SEXISM (B), (C)
F. Proper Names SUB­
PORTMANTEAU WORDS VOWEL CLUSTERS
POSSESSIVES -WARD(S)
A. Singular Possessives -WISE
B. Plural Possessives -WORTHY
C. Units of Time or Value and the Genitive
Adjective

P unctuation and T ypography


CAPITALIZATION B. Foreign Phrases
A. All Capitals C. Of Latin Phrases Beginning with in
B. Initial Capitals NUMERALS
C. Rules of Law A. General Guidance in Using
D. Vessel Names B. Coupling Numerals with Words
E. Judges’ Names C. Not Beginning Sentences with Numerals
F. Trademarks D. Round Numbers
G. Party Names E. Decades
DOCUMENT DESIGN F. Judicial Votes
A. A Readable Typeface PARENTHESES
B. White Space A. Syntactically
C. Headings and Subheadings B. Overuse of
D. Avoiding All Caps PUNCTUATION
E. Avoiding Underlines A. The Apostrophe
F. Listing B. The Colon
G. Bullets C. The Comma
H. Hanging Indents D. The Dash
I. A Ragged Right Margin E. The Exclamation Mark
J. Citations in Footnotes F. The Hyphen
K. Characters Per Line G. Parentheses
ENUMERATIONS H. The Period or Full Stop
A. First(ly), second(ly), thirddy); one, two, three I. The Question Mark
B. Comma Before the Last Member J. Quotation Marks
INITIALESE K. The Semicolon
ITALICS L. Square Brackets
A. Generally
PRONUNCIATION GUIDE

Pronunciations are shown within virgules. Syllables are separated by hy­


phens in pronunciations, and syllables spoken with the greatest stress are
shown in boldface type.

9 for all vowel sounds in turbid, among, n as in none, end, run


journal, trust, monk ng as in gang, rank, hung
a as in pact, democrat, drafting 0 as in modem, confidential, conscience
ah as in alms, father, calm oh as in over, parole, quote
ahr as in bargain, argue, pardon ohr as in lore, floor, bore
air as in care, lair, aware oi as in moist, oyster, toy
aw as in law, cause, flaw 00 as in too, boon, flute
ay as in litigate, delay oor as in poor, boor, tour
b as in brief, bankruptcy, bench ow as in power, our, flower
ch as in chambers, chance, chief
P as in primary, plenary, prison
d as in deposition, divorce, disclose r as in reporter, reprieve, rules
e as in evidence, appellate, rescue s as in sue, swear, sentence
ee as in freedom, appeal, pleading sh as in shoe, shoulder, push
eer as in peer, gear, weird t as in term, transact, testify
f as in forensic, bailiff, iffy th as in thief, theory, ethics
g as in guilt, flog, grieve th as in that, whether, either
h as in hang, holiday, hornbook uu as in book, full, woman
hw as in which, while, whether V as in venire, relevant, device
i as in civil, innocent, condition w as in win, wordy, work
I as in trial, right, file
y as in yes, year, yellow
j as in juror, jail, justice z as in zap, dizzy, busy
k as in clerk, check, county zh as in pleasure, vision, leisure
1 as in law, liberty, legislate

m as in marshal, matrimony, methods

xxiii
LIST OF ABBREVIATIONS

adj. = adjective lit. = literally


adv. = adverb L. L. = Law Latin
AHD = American Heritage Dictionary MEU1 = H. W. Fowler's A Dictionary o f
(3d ed. 1992) Modern English Usage (1926)
Am. = American MEU2 = H. W. Fowler's A Dictionary o f
AmE = American English Modern English Usage (Ernest
Gowers ed., 2d ed. 1965)
Aus. = Australia
M . R. = M aster o f the Rolls
Black’s = Black’s Law Dictionary
(6th ed. 1990) n. = noun
Br. = British N. B. = (nota bene) note well
BrE = British English N . Z. = N ew Zealand
c. = century OAD = Oxford American Dictionary
(1980)
ca. = circa
obs. = obsolete
Can. = Canada; Canadian
OCL = David M. W alker’s The Oxford
CDL = A Concise Dictionary o f Law
Companion to the Law (1980)
(2d ed. 1990)
OED = The Oxford English Dictionary
cf. = compare with
(2d ed. 1989)
C.J. = Chief Justice
OED = A Supplement to the Oxford
COD = The Concise Oxford Dictionary Supp . English Dictionary (4 vols.,
(8th ed. 1990) 1972-1986)
colloq. = colloquial O. F. = Old French
ed. = edition; editor orig. = originally
e.g. = (exempli gratia) for example Oxford = The Oxford Guide to English
Eng. = England; English Guide Usage (1983)
esp. = especially par. = paragraph
ex. = example P. C. = Privy Council
fr. = from; derived from; found in phr. = phrase
Fr. = France; French P. J. = Presiding Judge
G.B. = Great Britain (i.e., England, pi. = plural
Scotland, and Wales) pmbl. = pream ble
Gk. = Greek pp. = pages
id. = (idem) in the same work p. pi. = past participle
i.e. = (id est) that is prep. = preposition
Ir. = Ireland; Irish Q. B. = Queen's Bench
Ital. = Italy; Italian q.v. = (quod vide) w hich see
J. = Justice; Judge qq.v. = pi. form o f q.v.
JJ. = Justices; Judges
quot. = quotation
J.P. = Justice of the Peace
repr. = reprinted
KB. = King's Bench
rev. = revised by; revision
L. = Latin
RHD = The Random House Dictionary o f
La. = Louisiana the English Language (2d ed.
L.F. = Law French 1987)

XXV
xxvi List of Abbreviations

Rhod. Rhodesia (before the name change U.S.C. = United States Code
to Zimbabwe) usu. = usually
S. Afr. South Africa
vb. = verb
Scot. Scotland
v.i. = intransitive verb
Sp. Spain; Spanish
v.t. = transitive verb
specif. specifically
W2 = Webster's New International
TLS Times Literary Supplement Dictionary (2d ed. 1939)
U.C.C. Uniform Commercial Code W3 = Webster's Third New Interna­
U.K. United Kingdom (i.e., G.B. and— tional Dictionary (1961)
since 1922—Northern Ireland) W10 = Merriam Webster's Collegiate
U.S. United States Dictionary (10th ed. 1993)

Abbreviations within case names follow the conventions established in the


Bluebook (15th ed. 1991), § T.6, at 264-65.
As for symbols within the work, a virgule (/) separates different illustra­
tive quotations that are not part o f a bulleted list. A parenthetical geo­
graphic reference following such a quotation, such as (Eng.) or (Aus.), indi­
cates the national origin o f the quotation. (Illustrative quotations not having
a geographic reference are American in origin.) Small capitals refer the
reader to the named article for further information.
MODERN LEGAL USAGE
A
a; an. This entry treats two common problems quoted in C.M. Babcock, The Ordeal o f American
with the indefinite articles; for advice on using English 1 , 2 (1961)). Anyone who sounds the -h-

definite and indefinite articles generally, see ARTI­ in such words should avoid pretense and use a.
CLES. Thus a hypothecation, a hereditament, a halluci­
A. C hoice Between a and an . The indefinite natory image, a harassed schoolteacher. An hu­
article a is used before words beginning with a manitarian is, judged even by the most tolerant
consonant sound, including -y- and -w- sounds. standards, a pretentious humanitarian. See
The other form, an, is used before words begin­ h u m b le.
ning with a vowel sound. Hence a European coun­ B. In the D istributive Sense. A, the distribu­
try, an LL.B. degree, a heuristic device, a uniform, tive sense <ten hours a day>, is preferable to per,
an F.B.L agent, an SEC subpoena. And, for those which originated in commercialese and l e g a l e s e .
who have been wondering, the correct form is a It is wrong to consider a informal or colloquial in
usufruct in Louisiana law and a hypothec in Scots this context. The natural idiom is sixty hours a
law. week and ten dollars a pair, not sixty hours per
The distinction between a and an was not solidi­ week and ten dollars per pair. E.g., “At oral argu­
fied until the 19th century. Before that time an ment, St. Genevieve suggested that nominal dam­
preceded most words beginning with a vowel, re­ ages be awarded at one dollar per [read an] acre.”/
gardless o f how the first syllable sounded. The “These employees were paid less than the mini­
U.S. Constitution reads: “The Congress shall have mum hourly wage and they regularly worked
Power . . . To establish an uniform Rule o f Natu­ more than forty hours per [read a] week without
ralization . . . .” U.S. Const, art. I, § 8. But that receiving overtime pay.”
is no excuse for a 20th-century writer: “[T]hus Nonetheless, per is at least minimally accept­
retaining an unique [read a unique] and personal able, except in the phrase as per, q.v. And in a
quality style creates nevertheless an essential few contexts, especially when used attributively,
value in all written expression.” Perlie P. Fallon, per is the only idiomatic word. E.g., “The case asks
The Relation Between Analysis and Style in Amer­ whether the same per-unit lease term amounts to
ican Legal Prose, 28 Neb. L. Rev. 80, 80 (1949). a tax on imports in violation o f the Import-Export
Writers on usage formerly disputed whether Clause o f the Constitution.”
the correct article is a or an with historian, histor­
ical, and a few other words. The traditional rule A.B . See a b le -b o d ie d seam an.
is that if the -h- is sounded, a is the proper form.
If we follow that rule in the U.S. today, most a b a lien a te. See a lien , v.t.
people would say a historian. Even Fowler, in the
England o f 1926, advocated a before historic(al) a b a n d o n = (1) to give up property or some right
and humble. with the intent o f never claiming it again; or (2)
The theory behind using an in such a context, in family law, to leave children or a spouse will­
however, is that the -h- is very weak when the fully and without an intent to return. In sense
accent is on the second rather than the first sylla­ (1), a person’s losing a billfold (say) and then
ble (giving rise, by analogy, to an habitual of­ giving up an unsuccessful search does not mean
fender, an humanitarian, an hallucinatory image, that the person abandons the lost billfold: to
and an harassed schoolteacher). Thus no author­ abandon it, the person would have to take some
ity countenances an history, though several older purposeful action such as throwing it away.
ones prefer an historian and an historical. Car-
dozo wrote: “What we hand down in our judg­ a b a n d o n e d p ro p e rty . See lo st p ro p e rty .
ments is an hypothesis. It is no longer a divine
command.” Law and Literature, 52 Harv. L. Rev. a b a n d o n e e means, not “one who is abandoned,”
472, 478 (1939). Earlier Holmes used the same as the suffix -ee might suggest, but “one to whom
phrase. property rights [in a thing] are relinquished.” As
Today, however, an hypothesis and an historical in advancee (= one to whom money is advanced)
are likely to strike readers and listeners as affec­ and patentee (= one to whom a patent has been
tations. As Mark Twain once wrote, referring to issued), the suffix -ee carries a dative sense. Leff
humble, heroic, and historical: “Correct writers o f writes that “there are numerous circumstances in
the American language do not put an before those which abandonment o f something by one person
words.” The Stolen White Elephant 220 (1882) (as will have the practical or even legal effect o f

3
4 abandum

vesting that thing in a particular other person, “to draw away (a limb, etc.) from its natural
who thus may usefully be called an abandonee.” position” (OED). Yet the more common meaning
Arthur A. Leif, The Leff Dictionary o f Law, 94 o f abduct is “to lead away by force.” (For a fuller
Yale L.J. 1855, 1856 (1985). See -EE (A). definition, see a b d u c t i o n .) Although the OED
contains a notation that abduce is archaic, W3
abandum ; abandonum . The former is the cor­ does not label it so; in any event, it is certainly
rect spelling o f this word, which means “anything rare.
prohibited or ordered to be cast away.” Aban­
donum is a misspelling. a b d u c te e . See -EE (c).

a b a t e is a f o r m a l w o r d common in legal con­ a b d u c te r. See a b d u c t o r ( b ).


texts, meaning (1) v.t., “to nullify; quash; demol­
ish” <to abate a legal action>; (2) v.t., “to dimin­ a b d u c t i o n ; k i d n a p ( p ) i n g ; c h i l d -s t e a l i n g . Ab­
ish” <to abate a debt>; or (3) v.t., to remove duction = the act o f leading (someone) away by
physically <to abate a nuisance>; or (4) v.i., “to force or fraudulent persuasion. It constitutes a
come to an end” <all suits abate upon the death statutory offense in many states; for example,
o f the plaintiff>. There is, additionally, a technical abduct is statutorily defined in one state as “to
legal sense that is rarely if ever used today: “to restrain a person with intent to prevent his libera­
thrust oneself tortiously into real estate after the tion by: (A) secreting or Holding him in a place
owner dies and before the legal heir enters” where he is not likely to be found; or (B) using or
<abatement o f freeholds threatening to use deadly force.” Tex. Penal Code
Today abate is used most often in senses (2) Ann. § 20.01 (Vernon 1989).
and (3). Sense (2): “If the noise remains audible In England, abduction is generally given a nar­
to lessee’s tenants for more than five consecutive rower sense: “the offence o f taking an unmarried
days, the lessor shall abate the rental payments girl under the age o f 16 from the possession o f
in proportion to the square footage affected by the her parents or guardian against her will” ( CDL).
noise.” Sense (3): “A person who suffers from a The OCL additionally defines abduction in En­
nuisance may abate it, i.e. remove it, even without glish law as taking “a girl under 18 or a defective
giving notice, if he can do so without going on to woman o f any age from the possession o f her
another’s land . . . .” William Geldart, Introduc­ parent or guardian for the purpose o f unlawful
tion to English Law 144 (D.C.M. Yardley ed., 9th sexual intercourse, or a girl under 21 with prop­
ed. 1984). erty or expectations o f property from such posses­
The adjective is abatable, as in, “Appellants sion to marry or have unlawful sexual inter­
further contend that, where a nuisance is abat­ course, or . . . taking away and detaining any
able, the damages assessed must be limited to the woman with the intention that she shall marry
rental value o f the property.” or have unlawful sexual intercourse with a per­
son, by force or for the sake o f her property or
a b a to r. So spelled. expectations o f property.”
In current AmE, abduction has virtually no
A b b r e v ia t io n s . See acronym s and i n it ia l - connotations relating to the victim’s sex. But in
is m s & INITIALESE. British legal writing—and at common law—the
victim is almost invariably a woman. Abduction
a b b u tta ls . See a b u t m e n t . o f voters, a criminal offense in G.B., is one usage
in which the abductee’s sex is irrelevant.
may mean (1) “to disown”; (2) “to dis­
a b d ic a te Kidnapping = the act or an instance o f stealing,
card”; or (3) “to renounce.” In legal writing it abducting, or carrying away a person by force
usually takes on sense (3)— e.g.: “We did n o t . . . or fraud, often with a demand for ransom (W3).
imply that we had abdicated our equitable powers Kidnapping (the -pp- spelling is preferred) is not
to prevent an unjust forfeiture.” Foundation Dev. restricted in application to children as victims,
Corp. v. Loehmann's, Inc., 788 P.2d 1189, 1195 though the etymology suggests it. Child-stealing
(Ariz. 1990)./ “The majority, as I see it, has abdi­ is the technical statutory term for the abduction
cated its responsibility to enforce federal constitu­ o f children. See k i d n a p p i n g ( b ).
tional norms.” Clemons v. Mississippi, 494 U.S.
738, 774 (1990) (Blackmun, J., concurring in a b d u cto r. A. Plural Form. Abductor forms two
part & dissenting in part). plurals: -tors and -tores. The English plural, ab­
ductors, is preferable to the Latin plural, abduc-
a b d u c t ; a b d u c e . These words overlap in mean­ tores.
ing, but are not interchangeable. Both may mean B. And abducter. This alternative spelling,
ab initio 5

which is etymologically inferior, is not as wide­ a b id e . A. General Senses. Abide = (1) to stay
spread as abductor. <the right of entering and abiding in any state in
the Union>; (2) to tolerate, withstand; (3) to obey;
a b e rra tio n ; a b e rra n ce ; a b e rra n cy ; a b erra n t, (4) to await; or (5) to perform or execute (in refer­
n. Aberration means (1) “a deviation or departure ence to orders or judgments). The last is the
from what is normal or correct,” or (2) “a mental strictly legal meaning: “Since we do not doubt
derangement.” Aberrance and aberrancy are that the court will promptly proceed to abide our
NEEDLESS VARIANTS. judgment and certify our decision before proceed­
Although the word aberration is not limited to ing to trial, we decline to issue a peremptory order
persons, aberrant almost always is. As a noun, it at this time.”
means “a deviant; one deviating from established Abide also commonly takes on the sense “to
norms.” await,” as in the following legal construction: “The
judgment should be reversed, and a new trial
a b erra tio n a l; a b erra n t, adj.; a b e rra tiv e . Aber­ granted, with costs to abide the event.”
rational = o f or pertaining to an aberration (see Abide by is a p h r a s a l v e r b meaning “to acqui­
the preceding entry). E.g., “It is our duty to allow esce in or conform to”— e.g.: “Jurors must abide
a decision to be made by the Attorney General’s by the oath with respect to both sentencing and
delegate, as long as it is not so aberrational that determining guilt or innocence.”/ “Eastman indi­
it is arbitrary rather than the result o f any per­ cated his intention to abide by the plea
ceptible rational approach.” Aberrant = deviating agreement, clearly hoping that this would be a
from behavioral or social norms. Aberrative = consideration in favor o f leniency.”
tending to be aberrational. Abiding = lasting, enduring. E.g., “The two
gifts are both o f a kind that indicates an abiding
abet. See a id a n d abet. and unconditioned intent—one to a church, the
other to a person whom she called her adopted
a b etm en t ( = the act o f abetting) is sometimes son.”
erroneously made abettance or abettal, both n e e d ­ B. Past-Tense and Past-Participial Forms.
less VARIANTS. With the meanings most probably to be found in
legal texts (“await” and “execute”), abided is the
a b ettor. A. A nd abetter. In both BrE and AmE, preferred past tense and past participle. In the
abettor is the more usual spelling; the OED states archaic sense “to stay, dwell,” abode is the pre­
that it “is the constant form o f the word as a legal ferred past tense, and either abode or abided as
term.” Abettator is the defunct l a w l a t i n term the past participle. For most ordinary purposes,
from old English law. Cf. b e tto r. See -ER (a ) & abided serves well without seeming stilted.
p e rp e tra to r.
B. A nd accessory. An abettor, as distinguished a b ility ; ca p a city . Whereas ability is qualitative,
from an accessory, is usually one who is present capacity is quantitative. Ability refers to a per­
at the scene o f a crime and gives aid or encourage­ son’s power o f body or mind <a lawyer o f great
ment. ability>; capacity, meaning literally “roomy, spa­
cious,” refers figuratively to a person’s physical or
a b e y a n ce has a general sense (“a state o f suspen­ mental power to receive <her memory has an
sion, temporary nonexistence, or inactivity” extraordinary capacity for details>.
[OED]) and a technical legal sense (“expectation
or contemplation o f law; the position o f waiting ab initio ; in initio. The former means “from the
for or being without a claimant or owner” [OED]). beginning” <an act beyond one’s legal competence
Even in legal contexts, however, the general lay is void ab initio>; the latter means, as its prefix
sense is commonly used, as in, “Texas would not suggests, “in the beginning.” Neither LATINISM
consider his claim if this action were held in seems quite justified in ordinary contexts, al­
abeyance.” though ab initio, which in legal writing is used
commonly in the phrase void ab initio, is common
a b h orren t, meaning literally “shrinking from in enough not to be particularly objectionable— e.g.:
abhorrence” or “strongly opposed to,” frequently “Smith secured from an equity court, ab initio,
refers to things in legal contexts in the sense “so an injunction against Jones.” Leff notes that the
far removed from (a thing) as to be repugnant or phrase is sometimes used in the sense “thor­
inconsistent.” E.g., “The very nature o f a partner­ oughly,” roughly equivalent to “from first to last.”
ship is such that joint tenancy between one o f the Arthur A. Leff, The Leff Dictionary o f Law, 94
partners and a stranger to the partnership would Yale L.J. 1855,1863 (1985). E.g., “We find respon­
be abhorrent to the Act.” dent’s argument that the decision in that case is
6 abjudge

controlling here unpersuasive ab initio, because inferable ratable suspendable


the relevant language of the two statutes differs movable redressable tractable
materially.” noticeable retractable transferable
patentable salable willable
abjudge; adjudge. These words are antithetical persuadable
in one sense. Abjudge is a rare term (not in most
abridged dictionaries) meaning “to take away by The following words, limited in number because
judicial decision” (OED). Adjudge, in contrast, -ible is dead as a combining form in English, are
means “to award, grant, or impose judicially” (id.). spelled with the -i-:
One abjudges from and adjudges to. For the latter accessible dismissible perceptible
term’s other senses, see adjudge. adducible divisible perfectible
admissible edible permissible
abjudicate is synonymous with abjudge, q.v. audible educible plausible
avertible eligible possible
abjure; adjure. The former may mean either (1) collapsible erodible producible
“to renounce” <Germany abjured the use of force>, collectible exhaustible protectible
or (2) “to avoid” <her evaluation abjured excessive combustible expressible reducible
praisex The latter means “to charge or entreat commiscible extendible remissible
solemnly” <Reagan adjured the Soviets to join compactible fallible reprehensible
him in this noble goal>. compatible feasible repressive
The noun forms are abjuration (or abjurement— comprehensible flexible resistible
now defunct) and adjuration. The adjectival forms compressible forcible responsible
end in -tory. The agent nouns are abjurer and concussible fusible reversible
adjurer. contemptible horrible revertible
controvertible impressible risible
abjurer; abjuror. The -er spelling is preferred. convertible incorrigible seducible
See - e r (a ). corrodible indelible sensible
corruptible intelligible submersible (or
able. For the meaning of this word in the phrase credible interfusible submergible)
ready, willing, and able, see ready, willing, and deducible inventible suggestible
able. deductible invincible suppressible
defeasible irascible susceptible
- a b l e . A. Choice of -able or -ible. Many adjec­ defensible irresistible terrible
tives have competing forms ending in -able and descendible legible transfusible
-ible. Some of these have undergone d if f e r e n t i a ­ destructible negligible uncollectible
t i o n in meaning; the less commonly used forms digestible omissible vendible
in some pairs are merely n e e d l e s s v a r i a n t s of discernible ostensible visible
the predominant forms. The lists that follow con­
Some adjectives with these variant suffixes
tain the most troublesome words of this class.
have different meanings. Thus impassable means
Unlike -ible, -able is a living suffix that may be
“closed, incapable of being traversed”; its twin,
added to virtually any verb without an estab­
impassible, means “unable to feel pain,” or, less
lished suffix in either -able or -ible. Following are
distinctively, “impassive, emotionless.” Passable
some of the adjectives preferably spelled -able:
and passible have correspondingly positive mean­
actionable circumscribable diagnosable ings. (These pairs are formed from different Latin
addable commensurable diffusable roots, L. passus “having suffered” and L. passare
advisable committable discussable “to step.”) Similarly, impartible means “not sub­
affectable condensable endorsable ject to partition” and importable “capable of being
allegeable conductable enforceable imparted.” Conversable means “oral,” whereas
analyzable connectable excisable conversible is a NEEDLESS v a r i a n t of convertible.
annexable contestable excludable Forcible means either “effected by means of force”
arrestable contractable expandable <forcible entry> or “characterized by force”;
assessable conversable extendable forceable, much less frequently encountered,
averageable convictable gamishable would be the better term to describe a door that
bailable correctable ignitable is “capable of being forced open.” See forcible.
blamable definable immovable Other variant adjectives, though, are merely
changeable demurrable improvable duplicative. Typical examples are extendable, ex­
chargeable detectable includable tendible, and extensible. The first of these is now
abortion 7

prevalent in AmE (though labeled obsolete in the a b o d e , as past tense o f abide. See a b id e (b ).
OED). Extensible was, through the mid-20th cen­
tury, the most common form, but today it trails a b o d e , p la c e o f. This phrase is a pretentious
extendable by a substantial margin, while ex­ way o f referring to someone’s home or house.
tendible continues to appear infrequently. Writers
and editors ought to settle on the most firmly a b o lish m e n t; a d m on ish m en t. These nouns are
established form— extendable, which is as well inferior to— and much rarer than—the organically
formed as the variants— and trouble their minds derived abolition and admonition; no longer is
with weightier matters. See n e e d l e s s v a r i a n t s , there any difference in meaning between the
DIFFERENTIATION & MUTE E. -ment and the -tion forms. The -ment forms way-
B. Appended to Nouns. This suffix is usually wardly persist in much legal writing. E.g., “The
appended as a passive suffix to verbs (e.g., forget­ Securities Industry Association issued a 'legal
table, avoidable, reproachable). Sometimes, how­ alert’ that refers to the NYSE memo and its
ever, it has been joined with nouns (e.g., objection­ strongly worded admonishment [read admoni­
able, actionable, dutiable, marriageable, salable— tion] to have securities loan arrangements cov­
even clergyable and reversionable, qq.v.). These ered by written agreement.”/ “The Legislature
do not mean “able to be objectioned,” “able to be must be given a fair opportunity to take whatever
actioned,” and so on. Objectable would perhaps action it should deem advisable before the abol­
have been the more logical formation, though ishment [read abolition] o f the long-accepted im­
time, idiom, and usage have made many such munity.”
forms as actionable both ineradicable and unob­
jectionable. a b o r ig in e was long considered to be correct only
C. Converting -ate Verbs into -able Adjec­ in the plural form, aboriginal being the singular
tives. When the suffix -able is added to a transi­ noun. Today, however, aborigine has entered
tive polysyllabic word ending in -ate, that suffix standard English as a singular noun. But in Aus­
is dropped. Hence, accumulable, calculable, esti­ tralia, Aboriginal with the initial capital is the
mable, etc. (See -a t a b l e .) Exceptions, however, only correct form in formal usage.
occur with the two-syllable words (e.g., rebatable,
a b o r t = (1) (of a pregnancy) to end prematurely;
debatable).
(2) (of a fetus) to cause to be expelled before full
D. Dropping or Retaining the Medial -e-. This
development; or (3) (of a pregnant woman) to
question arises in words such as movables, q.v.,
cause to have an abortion. Senses (1) and (2) are
which sometimes takes the form moveables.
more usual than sense (3), which, as an example
Maine used such forms as irreconcileable and
o f h y p a l l a g e , strikes many readers as odd. E.g.,
resumeable—forms that are now archaic. See
“In a case of 1949, the trial judge sentenced a
Henry S. Maine, Ancient Law 85, 241 (17th ed.
husband who had tried to abort his wife and killed
1901; repr. [New Universal Lib.] 1905, 1910).
her to five years’ penal servitude . . . .” Glanville
Generally today, both AmE and BrE drop such a
Williams, The Sanctity o f Life and the Criminal
medial -e-, except in words with a soft -c- (trace­
Law 155 (1957).
able) or a soft -g- (chargeable). See MUTE E.
a b o rte e . Logically, one might expect this word to
able-bodied seam an; able seaman. The for­ refer to the fetus (one who is aborted)—but by
mer, though much more recent, seems to be the convention, and based on sense (3) o f abort, the
usual term in admiralty law, meaning “a mer­ word abortee refers to the woman whose miscar­
chant seaman certified for all seaman’s duties” riage has been produced. See Rollin M. Perkins,
( AHD ). It is abbreviated A.B. The phrase able Criminal Law 100 (1957). Today the word is little
seaman is used in the United States Shipping used even in legal contexts, perhaps because it
Code, 46 U.S.C. § 7307 (1988). It also appears in seems callous. See -EE.
Herman Melville’s Billy Budd (1891). It would be
difficult and footless to categorize either as a a b o r tic id e . See a b o rtio n .
n e e d l e s s v a r i a n t of the other. See seaman &
a b o rtifa cie n t; co n tr a c e p tiv e . The former is
m ariner.
anything intended to produce an abortion. The
latter is anything designed to prevent conception.
aboard. Usually restricted to ships in BrE, this Abortifacient should not be used to include contra­
word is used broadly in AmE— e.g.: “Two of the ceptive.
passengers aboard the bus were killed.” State
Farm Fire & Casualty Co. v. Tashire, 386 U.S. a b o rtio n ; a b o r tic id e ; fe tic id e . The word abor­
523, 525 (1967). tion, strictly speaking, means no more than “the
8 Abortions, Linguistic

expulsion o f a nonviable fetus” (W3). In this sense equivalent. About should not be used, as it often
it is synonymous with miscarriage. But today it is, with other terms o f approximation such as
more commonly applies specifically to an inten­ estimate or guess, because it means “roughly” or
tionally induced miscarriage— not one that re­ “approximately.” Hence, “roughly about $10,000”
sults naturally or accidentally. Though abortion is redundant.
was once used interchangeably with criminal
abortion, that is no longer so with the advent of
a b o v e . A. M eaning “m ore than” o r “ longer
legalized abortion. In the criminal context, then,
than.” This usage is to be restricted to informal
it is necessary to use the full phrase criminal
contexts. “Above [read More than] six-hundred
abortion or crime o f abortion.
lawsuits have been filed since the tragedy.”/
Aborticide = the act o f destroying a live fetus.
“Should the piano remain, by mutual consent,
It appears to be a n e e d l e s s v a r i a n t o f abortion—
above [read longer than] the term o f four
and a tendentious one. In any event, though,
months, it is understood that the company is to
aborticide is an ill-formed equivalent o f feticide.
pay Stieff interest at the rate o f six percent per
If, as the dictionaries suggest, it is formed on the
annum.”
verb abort, then ironically it is what Fowler called
B. F or above-mentioned. Above is an acceptable
an “abortion,” but here is termed a m o r p h o l o g i ­
ellipsis for above-mentioned if clear in context;
c a l d e f o r m i t y . If it is formed on the noun abortus
and it is much less inelegant— e.g.: “The above
( = an aborted fetus), then it is illogical, for an
arguments apply only to judicial disqualification
abortionist does not—except in the grossest imag­
under section 455(a).”
inable circumstances—“kill” (-cide) a fetus that
It was long thought that above could not prop­
has already been aborted. Aborticide is to be
erly act as an adjective; but the word has been so
avoided in favor of the superior alternative, feti­
used in legal writing throughout the 20th century,
cide (BrE foeticide).
even by the best legal writers. E.g., “[I]f the above
The term feticide is often used to describe the
sections were the only law bearing on the matter,
death of a fetus caused by an assault and battery
[we assume] that they created a civil liability to
against the mother.
make reparation to any one whose rights were
The current euphemism for abortion— a highly
infringed.” Slater v. Mexican N afl R.R., 194 U.S.
charged term since the Supreme Court handed
120, 126 (1904)./ “Yet in the middle o f the above
down Roe v. Wade, 410 U.S. 113 (1973)—is preg­
passage from Lord Lindley’s opinion there is a
nancy termination. See EUPHEMISMS.
sudden and question-begging shift in the use o f
A b o r t io n s , L in g u is t ic . See m o r p h o l o g ic a l
terms.” (Hohfeld) The OED records this use from
DEFORMITIES. 1873 and states: “By ellipsis o f a pple. as said,
written, mentioned, above stands attributively, as
a b o r t i v e ; a b o r t e d . Abortive may mean (1 ) “un­ ‘the above explanation/”
successful,” or (2) “inchoate.” With sense (1), it Some critics have suggested that above in this
takes on the figurative sense o f aborted (= cut sense should refer only to something mentioned
short), as an abortive trial, i.e., one cut short previously on the same page, but this restriction
before the verdict by, e.g., settlement o f the dis­ seems unduly narrow. Nevertheless, it is gener­
pute. (Note that -ive, an active suffix, here has a ally better to make the reference exact by giving
passive sense.) E.g., “A jury convicted appellants a page or paragraph number, rather than the
of various offenses arising out o f an abortive vague reference made possible by above. Idiom
scheme to import a large quantity o f marijuana will not, however, allow above to modify all nouns:
into the United States from Mexico.” In the follow­ above vehicle is unidiomatic for above-mentioned
ing sentence, abortive has the sense “unsuccess­ vehicle. Better yet would be the vehicle, if we
ful” without the connotations o f “cut short”: “More know from the context which one we are talking
cross-examinations with well-chosen objectives about.
are rendered abortive by the pursuit o f ‘will o' the A less than common and n e e d l e s s v a r i a n t of
wisp' decoys than by any other single factor.” above-mentioned is before-mentioned. See a b ov e-
Abortive is archaic in reference to abortions o f m e n tio n e d , a fo r e & a fo re sa id .
fetuses, except in the sense “causing an abortion”; C. As an A ttributive Noun. This casualism,
and in that sense, it is a n e e d l e s s v a r i a n t of which has appeared even in Supreme Court opin­
abortifacient, q.v. ions, derives from the uses discussed in section
(B). E.g., “Do not hesitate to call me if the above
abound. See m a n y ( b ). is not the agreement we have made.”
Approximately is a FOR­
a b o u t; a p p r o x im a te ly .
MAL WORD; about is the ordinary, perfectly good a b o v e -ca p tio n e d . See a b ov e-m en tion ed .
absent 9

a b ov e-m a d e is an unnecessary word, and an when they clearly violate statutory provisions.”
ugly one. E.g., “The following decisions o f this Obrogate is a civil-law term meaning “to repeal
court fully sustain the above-made statements (a law) by passing a new one” ( OED).
[read these statements or the above statements].” Arrogate (= to usurp) is properly used in the
following sentence: “Courts may arrogate the au­
a b ov e-m en tion ed ; a b o v e -q u o te d ; above- thority o f deciding what the individual may say
styled ; a b o v e -ca p tio n e d . All such compounds and may not say, and there may be readily
should be hyphenated; one sees the tendency now­ brought about the very condition against which
adays to spell above-quoted and above-mentioned the constitutional guaranty was intended as a
as single words. Actually, it is best to avoid these permanent protection.” See a rro g a te .
compounds altogether by using more specific ref­
erences; that is, instead o f writing the above- a b s c o n d is both transitive (“to hide away, conceal
mentioned court, one should name the court (or, [something]”) and intransitive (“to depart secretly
if it has just been named, write the court, that or suddenly; to hide oneself”). The latter is more
court, or some similar identifying phrase). Then common in modern contexts— e.g.: “He sold the
again, any o f these options may simply be a sign cottages, called in the mortgage, and absconded
of OVERPARTICULARIZATION, the cure for which with the proceeds . . . .” Rupert Cross & J.W.
would be simply to omit the reference altogether. Harris, Precedent in English Law 46 (4th ed.
See a b o v e (B), a fo re sa id & c a p tio n e d . 1991).

a b o v e -re fe r e n ce d . See r e fe r e n c e , v.t. a b s c o n d e e (= one who absconds) is, like escapee,


q.v., illogically formed, and it is rarer than the
a b ove-sta ted . See a b o v e (b ) & a fo re sa id . better-formed absconder, the usual agent-noun:
“Evidently, because o f loose security safeguards,
a b rid g a b le . See a b rid g e a b le . the abscondees [read absconders] just walked out
o f the hotel.” Ledesma-Vaides v. Sava, 604 F.
a b rid g e ; v io la te . Constitutional and other rights Supp. 675, 677 (S.D.N.Y. 1985)./ “Appellant, age
are often said to be abridged or violated. A conno- 15, was an abscondee [read absconder] from a
tative distinction is possible, however. Violate is youth development center . . . .” Commonwealth
the stronger word: when rights are abridged, they v. Thomas, 392 A.2d 820, 821 (Pa. Super. 1978).
are merely diminished; when rights are violated, See -EE.
they are flouted outright. Following are examples
o f the milder term: “The provision o f a new and a b s c o n d e n c e ; a b sco n d m e n t; a b sco n sio n . The
sanitary building does not ensure that it will be second and third are n e e d l e s s v a r i a n t s rarely
operated in a constitutional way; the first amend­ found; abscondence is the preferred and much
ment can be abridged in the cleanest quarters.”/ more common noun corresponding to the verb
“A statute denying nonresidents the privilege o f abscond, q.v. E.g., “ [Defendant demonstrated a
serving as trustees o f living trusts might be un­ command o f the English language not likely to
constitutional as abridging the privileges and im­ have been acquired during his period o f abscond­
munities o f citizens o f the United States.” ence . . . .” People v. Ferrer, 551 N.Y.S.2d 201,
201-02 (N.Y. App. Div. 1990). Abscondance is an
a b rid g (e )a b le . Abridgeable is more common in infrequent misspelling.
AmE, abridgable in BrE.
a b s co n d e r. See a b sco n d e e .
a b r i d g e m e n t . The British usually spell it with
the -e-, and the Americans always without it. a b sen t (= in the absence of; without) is com­
Armed with this knowledge, an American writer monly used as a preposition in legal writing. It
should not defend his “misspelling” on grounds can be effective if sparingly used. E.g., “The stat­
that he prefers the BrE form. Cf. a c k n o w l­ ute, in permitting a verdict of guilty absent a
e d g e m e n t & ju d g e m e n t. finding o f a design to effect death, allows the
imputation o f intent from one defendant to
a b rog a te; o b ro g a te ; a rro g a te . Abrogate, far another.”/ uAbsent a clear manifestation o f a con­
more common than obrogate, means “to abolish trary intent, it is presumed that the settlor in­
(a law or established usage) by authoritative or tended the trustee to take a fee simple so that in
formal action; annul; repeal.” Abrogate is occa­ selling he could pass title as owner rather than as
sionally confused with arrogate (= to usurp). The donee o f a power.” For an interesting discussion
proper use of abrogate is illustrated here: “Texas o f how this American l e g a l i s m has spread into
courts will abrogate school district policies only nonlegal contexts, see two pieces by Alan R. Slot-
IO absentee

kin: Absent “Without”: Adjective, Participle, or • “This court having found that the two types o f
Preposition, 60 Am. Speech 222 (1985); Preposi­ uses under the trademark maintenance pro­
tional Absent: An Afterword, 64 Am. Speech 167 gram were not sufficient uses to avoid prima
(1989). facie proof o f abandonment, the district court
must specifically address Exxon’s intent to re­
ab sen tee, used as an adverb, is a new and useful sume use o f the HUMBLE trademark.”
linguistic development. E.g., “Our inquiry as to
In the following example, the writer attempted
[read into] why the defendants took Alaniz and
a nominative absolute, but incorrectly used the
her son and daughter to vote absentee has to
possessive rather than the nominative case: “The
begin with whether the request came from Alaniz
trial court concluded [that] Vance was not a good
herself.” It would be cumbersome in that context candidate for non-state prison sanction, his [read
to have to write, “to vote as absentees.” W3 re­ he] having ‘manipulated the system before.’ ”
cords absentee as a noun only, but the adverbial
Vance v. State, 475 So. 2d 1362, 1363 (Fla. Dist.
usage is increasingly widespread. The word may Ct. App. 1985).
also function as an adjective, as in absentee land­
lord.
a b so lu te , d e c r e e . See d e c r e e a b solu te.

Nominative abso­
A b s o l u t e C o n s t r u c t io n s .
a b so lu te lia b ility . Seé strict lia b ility .
lutes, increasingly rare in m odem prose, allow
writers to vary their syntax while concisely subor­ a b solu te, ru le. See d e c r e e a b solu te.
dinating incidental matter. Such phrases do not
bear an ordinary grammatical relation to the rest
a b so lv e , depending on the context, takes either
o f the sentence, since the noun or noun phrase
o f or from. One is absolved o f financial liability,
does not perform any o f the usual functions (sub­
and absolved from wrongdoing—assuming the
ject, object, apposition, etc.) that grammatically
courts treat one kindly. In the following sentence,
attach nouns to other words in the sentence. Yet
from appears wrongly for of: “If the mother con­
the whole absolute phrase adverbially modifies
tributed nothing to his support because she was
some verb. E.g., “ The court adjourning [i.e., When
absolved therefrom [read, if we must, thereof] un­
the court adjourned], we left the courtroom.”
der the act, no expectation o f pecuniary advantage
This construction often has an antique literary
exists.”
flavor. Few m odem writers would use the nomi­
Here the opposite error appears: “Cnudde con­
native absolute in the way Herman Melville did:
sidered that Hardgrave’s letter completely ab­
“ [A] drumhead court was summarily convened, he
solved her o f [read from] any charges o f improper
electing the individuals composing i t . . . .” Billy
behavior in her teaching methods or in the context
Budd 63 (1891; repr. Signet ed. 1979). (The pro­
o f her course.”
noun he is modified by the participle electing; the
individuals composing it is the object o f electing.
a b so lv ito r. See a ssoil.
The whole phrase he electing the individuals com­
posing it is a nominative absolute, for it has no
a b so rb ; a d so rb ; sorb . Absorb is the common
grammatical function in the statement A drum­
term meaning “to soak up”; adsorb is a scientific
head court was summarily convened.)
term used in referring to condensing gas. Sorb is
But most modem examples don’t strike readers
a relatively obscure term comprehending both o f
as being so stuffy, as the following examples o f
its prefixed siblings.
the nominative absolute show:•

• “In Martin v. Texas, Harlan writing again for a a b stra ct, n. American lawyers often use abstract
unanimous Court, the defendant’s allegations as a shortened form o f the phrase abstract o f
o f discrimination were unsupported by any evi­ title (= the history o f a particular tract o f land,
dence whatever and were denied.” (If a pronoun consisting o f a written summary o f the material
were to be used instead o f Harlan, the absolute parts o f every recorded instrument affecting title).
phrase would read “he writing again for the
court.”) a b stra ct, v.t.; a b stra ctify . Abstract is the CHA-
• “For the purposes o f this proceeding, at least, it MELEON-HUED verb meaning (1) “to separate”; (2)
is conceded that the collision was solely the “to summarize” <to abstract a judgment or title>;
result of Holeman’s negligence, he apparently (3) “to divert”; (4) “to steal”; or (5) “to make (some­
having been intoxicated at the time.” thing concrete) abstract.”
• “The husband being about to sail, the alleged The OED labels sense (4) a e u p h e m i s m . In that
parol agreement sued upon was made.” (Eng.) sense—“to take away secretly, slyly, or dishon-
Abstractttis 11

estly”—abstract is a FORMAL WORD that really • “This Note, therefore, structures its analysis
beclouds the act it describes. E.g., “Universal's around a consideration o f definitional methodol­
funds were surreptitiously abstracted and depos­ ogy and proposes a constitutional definition o f
ited in Richfield's account." A more common word, religion on the basis o f that consideration.” Tim­
such as removed or withdrawn, would be prefer­ othy L. Hall, The Sacred and the Profane, 61
able. Tex. L. Rev. 139, 140 (1982). What? The sen­
Abstractify is not listed in the dictionaries, tence states that the note proposes a definition
though it has appeared in legal texts. It serves as o f religion on the basis o f a consideration o f
a pejorative alternative for sense (5) o f abstract. methodology, which makes little sense. See o b ­
Perhaps it is a useful invention, for there is no s c u r it y .

reason for abstract to undergo any further degen­ • “ [A]s used within the context o f this book . . . ,
eration o f meaning. demonstrative evidence is evidence which [read
that] has, in some form or fashion, been pro­
a b stra cter. See a b stra cto r. cessed.” Mark A. Dombroff, Dombroff on De­
monstrative Evidence 2 (1983). One reads that
a b stra ctify . See a b stra ct. sentence with mounting expectations o f a punch
word at the end—yet all we get is the vague
a b stra ctio n means, to nonlawyers, (1) (rarely) word processed. What is evidence that has, in
“the act o f removing"; (2) “an abstract idea”; (3) some form or fashion, been processed? Been
“abstractedness”; or (4) “an example o f abstract processed by the brain? Unfortunately, even the
art” (OAD). In law, however, abstraction = the fuller context o f that quotation provides little
act o f taking, usu. wrongfully or fraudulently, help.
as in abstraction o f funds. But in the phrase • “Win or lose, the County Committee is a focal
abstraction o f water ( = the taking o f water from force o f substantiality within the electoral pro­
a river or other source o f supply [CDL]), the word cess, whether it be for federal, state or local
connotes no wrongdoing, for in England one may purposes.” Doherty v. Meisser, 321 N.Y.S.2d 32,
obtain a license. See a b stra ct, v.t. 41 (N.Y. Sup. 1971). What is a focal force o f
substantiality?
vile a thing . . . is the ab­
A b s t r a c t t t i s . “H o w
stract noun! It wraps a man's thoughts round like The first and third examples contain the arche­
cotton wool.” Arthur Quiller-Couch, On the Art o f typal abstract words, here termed b u r ie d
Writing 109 (1916). Abstractitis is Ernest Gow- v e r b s — that is, words ending usually with these

ers's term for writing that is so abstract and suffixes: -tion, -sion, -ity, -ence, -ance, -ment. Writ­
obtuse (hence abstruse) that the writer does not ers are well advised to take these longish nouns
even know what he or she is trying to say—far be and turn them back into verbs if possible—that
it from the reader, then, to give such writing a is, write to state, not to make a statement; to
coherent meaning. submit, not to make a submission; to rely on, not
One sympathizes with a keen reader like Judge to evidence a reliance on; and so on.
Learned Hand, who wrestled with the Internal The Fowlers quote the following sentence—
Revenue Code: “ [T]he words . . . dance before my laden with buried verbs—in The King's English
eyes in a meaningless procession: cross-reference (1906): “One o f the most important reforms men­
to cross-reference, exception upon exception— tioned in the rescript is the unification o f the
couched in abstract terms that offer no handle to organization o f judicial institutions and the guar­
seize hold of— leave in my mind only a confused antee for all the tribunals o f the independence
sense o f some vitally important, but successfully necessary for securing to all classes o f the commu­
concealed, purport, which it is my duty to extract, nity equality before the law.” The following revi­
but which is within my power, if at all, only after sion eliminates the buried verbs: “One o f the most
the most inordinate expenditure o f time.” Learned important reforms is that o f the courts, which
Hand, Thomas Walter Swan, 57 Yale L.J. 167, need to be independent within a uniform struc­
169 (1947). ture. In this way only can people be assured that
Perhaps the best antidote to this malady— all are equal before the law.” Arthur Quiller-
which in some degree afflicts most sophisticated Couch, The Art o f Writing at 109-10.
writers—is an active empathy for one's readers. The newest vogue in legal theorizing, Critical
Rigorous thought about concrete meaning, to­ Legal Studies (q.v.), is characterized by ab­
gether with careful revision, can eliminate ab­ stractitis and jargonmongering, the favored words
stractitis. in the field being purposivist, constitutive, co­
Three short examples suffice to illustrate the opting, demobilizing, structuralism, deconstruc­
malady: tion, formalism, and praxis, among others. See
12 A bstract Nouns, Plurals of

Louis B. Schwartz, With Gun and Camera 1941). Thus some writers have proposed substi­
Through Darkest CLS-Land, 36 Stan. L. Rev. 413, tuting misuse in place o f abuse. See, e.g., Pearson
440 (1984). Some CLS writing reads on this order: v. Dennison, 353 F.2d 24, 28 n.6 (9th Cir. 1965).
“In the reciprocity of roles that are artificial, you The phrase abuse o f discretion is unlikely, how­
think people are more alienated in that bank than ever, to be changed.
I think they are. I think there's more intersubjec-
tive zap and unalienated relatedness among tell­ a b u se o f p r o c e s s . See m a licio u s p ro se c u tio n .
ers.” Peter Gabel & Duncan Kennedy, Roll Over
Beethoven, 36 Stan. L. Rev. 1, 25 (1984). The a b u tm en t; abu ttals. An abutment is the place
phrase intersubjective zap, by the way, has be­ at which two or more things touch. Abuttals— a
come a buzz-phrase among CLSers, having now term used only in the plural—means “land bound­
appeared in well over 20 law-review articles. aries.” Abuttals usually refers to abstract bound­
By some accounts, abstractitis leads to far aries, and abutments usually to physical struc­
worse things. “If concepts are not clear,” wrote tures (e.g., the walls o f bridges adjoining land).
Confucius, “words do not fit.” But he did not stop Abbuttals is a variant spelling to be avoided.
there: “If words do not fit, the day’s work cannot
be accomplished, morals and art do not flourish. a b u tter; a b u tto r. Abutter is the accepted spell­
If morals and art do not flourish, punishments ing. The word means either (1) “the owner o f
are not just. If punishments are not just, the adjoining land”; or (2) “land that adjoins the land
people do not know where to put hand or foot.” in question.” Sense (1) is far more common.
Confucius, Analects XIII, 3. It is no frivolous as­
sertion to say that, when we descend into ab­ a b y sm (a l); a b y ss(a l). The nouns are synony­
stractitis, more than just our language is afflicted. mous in signifying “a bottomless gulf.” Abyss is
Fred Rodell— the Yale law professor, realist, the more current form, and is therefore to be
and semanticist who frequently criticized lawyers’ preferred. Though abysm is obsolescent, abysmal
language— issued his own inimitable warning thrives (indeed, has become trite) as a figurative
about abstractitis: “Dealing in words is a danger­ term for “deep” or “immeasurably great” (W3)
ous business, and it cannot be too often stressed <abysmal benightedness>. Abyssal is a technical
that what The Law deals in is words. Dealing in oceanographic term <the geology o f the abyssal
long, vague, fuzzy-meaning words is even more deep>.
dangerous business, and most o f the words The
Law deals in are long and vague and fuzzy. Mak­ a c c e d e ; e x ce e d . Accede = (1) “to agree or con­
ing a habit o f applying long, vague, fuzzy, general sent”; (2) “to come into office or a position o f
words to specific things and facts is perhaps the stature”; or (3) “to enter a treaty or accord.” It is
most dangerous o f all, and The Law does that, an intransitive verb that takes the preposition to.
too.” Fred Rodell, Woe Unto You, Lawyers! 39 Exceed, a transitive verb, means (1) “to surpass”;
(1939; repr. 1980). or (2) “to go beyond the proper limits.” The first
syllable o f accede should be pronounced with a
A bstract N o un s, P lurals o f. See p l u r a l s (b >. short -a-, so as to differentiate its sound from
exceed.
a b stra ct o f title. See a b stra ct & title.
a c ce n t, v.t.; a cce n tu a te . These synonyms have a
a b stra ctor; a b stra cter. The OED notes that -or latent distinction that might usefully be observed.
is “analogically the more regular form”; it is the Fowler notes that accent is more common in lit­
more usual as well. See -ER (a ). eral, and accentuate in figurative, senses. Hence
one properly accents the third syllable o f appellee,
abu se o f d iscre tio n , the phrase denoting a le­ and accentuates the weaknesses in an opponent’s
nient standard o f reviewing a lower court’s judg­ legal arguments. E.g., “These elements, although
ment, signifies “no single level o f deference or accentuating the wrong, are not the essence o f it.”
scrutiny.” 1 Steven A. Childress & Martha S.
Davis, Standards o f Review § 4.21, at 287 (1986). a cce p ta n c e ; a cce p ta n c y ; a cce p ta tio n . The
The “variability [of the phrase] is not hopeless. It first corresponds to the active sense o f the verb
just means that generalizations about the stan­ (to accept), and the second the passive sense (to
dard may not be helpful.” Id. at 288. be accepted). Acceptance = the act o f accepting;
Abuse in this context is not pejorative; the word specif., the final and unqualified expression o f
here is “wholly unrelated to the meaning o f the assent to the terms o f a contractual offer. Accepta­
. . . term when used in common parlance.” Beck tion = the state o f being accepted <widespread
v. Wings Field, Inc., 122 F.2d 114, 116 (3d Cir. acceptation o f the doctrine o f strict liability in tort
accident 13

was long in coming>. Acceptancy is a n e e d l e s s session by: . . . Accession,' when the owner of
o f acceptance, just as acception is for
v a r ia n t the principal object becomes also owner o f its
acceptation. accessory.” Thomas E. Holland, The Elements o f
Following are examples o f acceptation—the less Jurisprudence 218 (13th ed. 1924)./ Sense (2): “It
common word— used correctly: “In actions o f slan­ often happened, however, that o f the two things
der, words are to be taken in their common united, one was a mere accession to the other, a
acceptation. 7 “That there is no right o f property mere secondary or subordinate p a r t. . . .” James
in a dead body in the ordinary acceptation of that Hadley, Introduction to Roman Law 170 (N.Y., D.
term [Which term: property or dead body?] is Appleton & Co. 1881)./ Sense (3): “ [W]e held that
undoubtedly true when limited to a property right tires and tubes added to a car did not become a
in the commercial sense.” part o f it by accession.” Bank o f America v. J. &
S. Auto Repairs, 694 P.2d 246, 251 (Ariz. 1985)
a c ce p ta n ce fo r h o n o r; a c ce p ta n ce su p ra p ro ­ (en banc).
t e s t . Both terms mean “a form o f acceptance o f a
bill of exchange to save the good name o f the ( = [1] o f or relating to an accessory;
a c c e s s o r ia l
drawer or an endorser” (CDL). Both are t e r m s o f or [2] collateral) appears most commonly in sense
a r t , acceptance for honor perhaps being the more (1)— e.g.: “We now come to another set o f cases in
generally comprehensible o f the two. Acceptance which the English courts have departed from, or
supra protest ought to be avoided. at least modified, the derivative theory o f accesso­
rial liability.” Andrew Ashworth, Principles o f
a c c e p ta n c y ; a c c e p ta tio n . See a c c e p t a n c e . Criminal Law 386 (1991).
Sense (2) has been largely superseded by either
“The first form is now gen­
a cce p ter; acce p to r. accessory <accessory promise> or collateral c o l ­
erally used for one who accepts. The second (ear­ lateral obligations See c o l l a t e r a l o b li g a t i o n .
lier) form is the legal term, one who accepts, or
undertakes the payment of, a bill o f exchange.” a c c e s s o r ia l o b lig a t io n . See c o l l a t e r a l o b l i g a ­
Margaret Nicholson, A Dictionary o f American- tio n .
English Usage 6 (1957). Acceptor is also regularly
used in law, however, o f one who accepts an offer a c c e s s o r y , n. A. A nd accessary , n. Accessory
to enter into a contract—e.g.: “From the point o f now predominates in AmE and BrE in meaning
view o f the offeror it seems immaterial whether both “abettor” and “a thing o f lesser importance.”
the acceptor knew o f the offer or not.” P.S. Atiyah, Though Fowler believed a distinction existed be­
An Introduction to the Law o f Contract 52 (3d ed. tween accessory and accessary (the first applying
1981). primarily to things, the second to persons), the
second is now merely a n e e d l e s s v a r i a n t and
a c c e s s , as a verb, has its origins in c o m p u t e r e s e . should be avoided.
Like a number o f nouns turned into verbs (e.g., B. P ronunciation. Both words discussed in (a )
contact), it now seems increasingly well ensconced should be pronounced with the first -c- as a hard
in the language. As Fowler notes with regard to -k- sound—hence lak-ses-d-ree/. A common mis­
contact, it is an ancient and valuable right for pronunciation is ld-ses-d-reel.
English-speaking peoples to turn their nouns into C. A nd accomplice . See a c c o m p l i c e & p r i n c i ­
verbs when they are so minded. Gain access to or p a l ( b ).
some other such equivalent is admittedly un­
gainly alongside access, though the latter still a ccid e n t. A. And mistake. In law, the usual
jars sensitive ears. “Other electrical units do not distinction is that an accident occurs without the
access the electric energy source through the willful purpose of the person who causes it. A
plug.” mistake, by contrast, presupposes the operation
o f a person's will in producing the event, even
a c c e s s i o n lak-se-shdnl = (1) a coming into pos­ though the person has been misled by erroneous
session o f an office or right; (2) acquisition of impressions.
(something connected to one's property) by B. And incident. “Available statistics establish
growth, labor, or the like; or (3) a secondary or that flight engineers have rarely been a contribut­
subordinate thing that is connected with another ing cause or factor in commercial aircraft acci­
thing. Sense (1) is the most common in legal and dents or incidents." Here incident apparently
nonlegal contexts alike <Rehnquist’s accession to means “near-accident,” and for the purposes o f
the Chiefship>; senses (2) and (3) are largely one-time differentiation may be justified. Incident
peculiar to legal contexts. Sense (1): “The right should be avoided, however, as a e u p h e m i s m for
[of acquisition] is obtained without an act o f pos­ accident.
14 accidentally

a ccid e n ta lly . So spelled; accidently is a solecism. the overwhelming weight o f authority in the state
The confusion may arise from the form o f evi­ courts as reflected in Wigmore’s classic treatise
dently and patently. Cf. in cid e n ta lly . on the law o f evidence.”
This phrasing should not be used in place o f a
acclim a te, -ation ; a cclim a tiz e , -iza tion . H.W. more direct statement—e.g.: “The adoption o f this
Fowler and other authorities prefer the -ize forms. method was based on the premise that the order
Similarly, W10 includes the primary definitions in point o f time o f deposits and withdrawals was
under acclimatize and acclimatization, the better essential to proof, and that the burden was upon
forms. In the noun, using acclimatization keeps claimant; we are not in accord with [read we reject
listeners from confusing the homophones acclima­ (or disagree with)] that view.”
tion and acclamation. To be in accordance is to be in conformity or
compliance. In accordance is sometimes cumber­
a cco m m o d a b le . The word is so formed— not ac- some, but often useful. E.g., “The search was
commodatable, as it is sometimes erroneously conducted in accordance with FCI regulations and
written. E.g., “[Elqual treatment o f inmates is not without excessive use o f force.” Out o f accordance
a legitimate interest when it is accomplished at = not in conformity.
the expense o f denying the exercise o f an other­ Accord is wrongly used for accordance in the
wise accommodatable [read accommodable] con­ following sentences: “The,agency disbursed funds
stitutional right.” Goodwin v. Turner, 908 F.2d in accord [read accordance] with the plan.”/ “In
1395,1405 (8th Cir. 1990) (en banc). See -a t a b l e . accord [read accordance] with the approach taken
by this court in these decisions, we hold that the
a cco m m o d a tio n . So spelled. The word is com­
presentation o f an administrative claim in excess
monly misspelled with one -m-.
o f $100,000 is a sum certain under 28 C.F.R.
§ 14.2.”
a ccom m od a tu m . See com m o d a tu m .

a cc o m p lic e ; a cce sso ry . American writers tend accord, v.t.; a f f o r d , v.t. These are c h a m e l e o n -
to use accomplice to include all principals and HUED words that share the meaning “to furnish
accessories before the fact, but to exclude accesso­ or grant,” as commonly used in legal texts a c ­
ries after the fact. Thus, the word embraces all corded (or afforded) all the rights due him under
perpetrators, abettors, and inciters. See Rollin M. due processx Yet some d if f e r e n t ia t io n is possi­
Perkins & Ronald N. Boyce, Criminal Law 727 ble: accord has the nuance o f granting something
(3d ed. 1982). because it is suitable or proper <accord litigants a
Other writers use accomplice to include all prin­ stay o f costs pending appeal>. E.g., “The children
cipals and accessories. The CDL, for example, were not accorded procedural due process before
defines accomplice as “one who is a party to a school officials reached the conclusion that they
crime, either as a perpetrator or as an accessory.” could not continue to attend school.” Accord in
And it defines accessory as “one who is a party to this sense should usu. take a personal object,
a crime that is actually committed by someone not an inanimate one; this error most commonly
else (the perpetrator).” This usage appears to be occurs when accord is used as high-sounding sub­
primarily BrE—e.g.: “[W]e are concerned with stitute for give: “I cannot subscribe to the court's
the first topic—the parties in different degrees o f sweeping refusal to accord [read give] the equal
complicity to a crime, who are termed ‘accom­ protection clause any role in this entire area of
plices' Accomplices consist o f the perpetrator and the law.”/ “Courts generally accord [read give]
the accessories.” Glanville Williams, Textbook o f statutory language its commonsense meaning.”
Criminal Law 285 (1978). The origin o f the correct use o f accord lies in the
Still other writers, however, use accomplice and historical (and still current) sense “to grant (a
accessory as synonyms— e.g.: “[A] principal is a thing asked) to (a person), to give with full con­
person whose acts fall within the legal definition sent, to award” (OED).
o f the crime, whereas an accomplice (sometimes Intransitively, accord takes the prepositions in,
called an ‘accessory' or *secondary party') is anyone to, or with, depending on the context <we accord
who aids, abets, counsels, or procures a principal.” in our opinions> <we accord to plaintiff his due>
Andrew Ashworth, Principles of Criminal Law <this accords with the prevailing view>.
363-64 (1991). See a cce s s o ry . Afford is the more general term, meaning “to
furnish (something) as an essential concomitant”
a cco m p ta n t g en era l. See a c co u n ta n t gen era l. <afford to the indigent defendant legal represen­
ta tion s E.g., “The Sixth Amendment guarantees
a c c o r d ; a c c o rd a n ce . To be in accord is to be in that a person brought to trial in any federal court
agreement. E.g., “This holding was in accord with must be afforded the right to assistance o f counsel
accountable 15

before he can be validly convicted.7“If we afford B. According as. This phrase means “in a man­
relief to this town, will we have to do likewise as ner corresponding to the way in which; just as.”
each unincorporated village decides to incorpo­ E.g., “The special law is either favorable or unfa­
rate?” vorable according as it enlarges or restricts, in
opposition to the common rule, the rights o f those
a c c o r d , n.; c o n c o r d , n. Both mean “an amicable for whom it is established.” (See the quotation
arrangement between parties, esp. between peo­ from Blackstone under m isd em ea n or.)
ples or nations; compact; treaty.” Accord is per­ C. According to; accordingly to. According to
haps the less formal word, and the more fre­ = (1) depending on; (2) as explained or reported
quently used today. See c o n c o r d (a ). by (a person); or (3) in accordance with. Sense
(1): “The Courts exercise what, according to our
a c c o r d , used as a signal in citations, ordinarily
prepossessions, we call a moderating or an ob­
indicates that the authority cited directly sup­
structive influence.” W.W. Buckland, Some Re­
ports the proposition, but in a way slightly differ­
flections on Jurisprudence 43 (1945).
ent from previously cited authorities. One should
D. As a Dangler. For according as an acceptable
include a parenthetical explanation o f what that
dangling modifier, see d a n g l e r s (d ).
difference is, rather than leaving the reader to
search for it. Sometimes it introduces like cases
from other jurisdictions. See c i t a t i o n o f c a s e s . a c c o r d in g ly . See a c c o r d in g (c ).

a c c o r d a n c e . See a c c o r d . a c c o s t (= to approach and usu. to speak to in an


abrupt or challenging manner) has historically
a c c o r d a n d sa tisfa ctio n ; co m p r o m is e a n d had no connotations o f physical contact. Hence it
settlem en t. The former appears usually in con­ would traditionally be considered inappropriate
tractual contexts. Though the two phrases may in the following sentence: “One lady leaving the
overlap to some extent, compromise and settle­ shop was grabbed by the arm and in a threatening
ment is used in the context o f a dispute more manner told that she had better not go in the
probably giving rise to litigation. It applies to all place again because it was a 'scab’ shop; another
disputes, not just to those arising from contracts. lady was likewise accosted and told that she ought
The two substantive words in compromise and to be shot for going into that 'scab’ shop.” Accost
settlement are broader than those in accord and is not a strong enough word for that context;
satisfaction, but compromise is roughly analogous assault (in the nonlawyer’s sense) might have
to accord, and settlement to satisfaction. served better.
An accord is an agreement to substitute for an In the following sentence, the author might not
existing debt or obligation some alternative form have contemplated physical contact as part o f
o f discharging that debt; a satisfaction is the ac­ the “initial contact,” so the meaning is unclear:
tual discharge o f the debt by the substituted “[W]here the two were strangers and the circum­
means. Stated otherwise, an accord is the stances o f the initial contact were involuntary—
agreement to perform (in an alternative way), and accosted in parking lots, house break-ins—nearly
the satisfaction is the actual performance. Any everyone was certain that a rape had occurred.”
claim (if disputed, unliquidated, or undisputed Susan Estrich, Real Rape 13 (1987). Cf. a lte rca ­
and liquidated) may be discharged by an accord tio n & assault.
and satisfaction.
But only a disputed or unliquidated claim may
a cco u n t, n. = (1) a detailed statement o f the
be the basis for a compromise and settlement.
debits and credits between parties to a contract
Though the two words in this phrase have been
or to a fiduciary relationship; (2) a statement o f
used with a variety o f meanings and even synony­
monetary transactions; (3) at common law, a legal
mously, at base compromise means “an agreement
action used by a lord o f a manor to order his
between two or more persons to settle matters in
bailiff to account for the profits o f the manor; (4)
dispute between them”; settlement means “the
more modemly, a legal action commenced by one
performance o f promises made in a compromise
who has given another person money to be applied
agreement.”
in a particular way, the action being designed to
a c co rd in g . A. According to. This is a weak compel the receiver o f the money to provide de­
form o f attribution <according to Corbin, . . .>; tails o f the debts owed to the plaintiff. For one
a text sprinkled with according to's gives the variety o f sense (4), see a c c o u n t stated.
appearance o f having little originality. Legal writ­
ers should avoid the phrase when attributing an a c c o u n ta b le takes for or to, not from. E.g., “A
idea. factor or commission merchant is to be held
16 accountancy

strictly accountable from [read for] any deviation mean “to inure to the benefit of,” however, as
from instructions received from his principal.” here: “The appellate issue turns on whether the
tax attributes associated with operations o f cer­
a c c o u n ta n c y . See g e n e r a lly a c ce p ted ac­ tain commercial real estate properly accrued to
c o u n tin g p r in c ip le s . [read inured to the benefit of] the corporation that
held legal title.”
a c c o u n ta n tis a p o p u l a r iz e d l e g a l t e c h n i c a l ­ B. Accrue and arise. In reference to causes of
it y that originally, in the 15th century, denoted action, some courts have held that accrue and
“the defendant in an action o f account.” (See a c ­ arise are synonymous, others that they can be
c o u n t , n.) By extension, in the 16th century, the distinguished. Arise may refer to the onset of
word came to mean “one whose occupation is the the underlying wrong (e.g., exposure to asbestos),
keeping of accounts.” whereas accrue may refer to the ripeness o f the
claim (e.g., contraction o f asbestosis or discovery
a c c o u n ta n t g e n e r a l; a c co m p ta n t g e n e r a l. o f the disease). We need not set down a rule o f
The latter spelling—originating in the Renais­ usage so much as beware o f the ambiguities o f
sance habit o f respelling French loanwords on the these terms in this particular context.
Latin model—is archaic. Cf. c o m p t r o l l e r .
a ccru e m e n t. See a ccru a l.
a c c o u n tin g . See b o o k k e e p i n g & g e n e r a l l y a c ­
c e p te d a c c o u n tin g p r in c ip le s . a c c r u e r . See a ccru a l.

a c c o u n t s t a t e d . This phrase bears two distinct a ccu m u la te , -tive; cu m u la te, -tive. The former
meanings: (1) an agreed balance between parties is far more common as the verb; the latter is
settling an action for debt; (2) a defendant’s plea, current only in the adjective it yields (cumula­
in response to a bill for an accounting, in which tive). Accumulate and cumulate both mean “to pile
the defendant states that the balance found due up; collect.” Cumulate, however, should generally
on the statement of the account has been dis­ be avoided as a NEEDLESS v a r i a n t . Accumulate
charged and that the defendant holds the plain­ has the additional intransitive sense “to increase.”
tiffs release. See a c c o u n t . The adjectives demonstrate more palpable DIF­
FERENTIATION. In one sense they are synonymous:
a c c o u t r e ( m e n t s ) . As with
a c c o u te r (m e n ts ); “increasing by successive addition,” in which
many other words having this suffix, the -er form meaning cumulative is the usual and therefore
is AmE, the -re BrE. the preferred term. Cumulative also means: (1)
“relating to interest or a dividend paid to the
a c c r e d i t a t e , a BACK-FORMATION from accredita­ corpus if not disbursed when due”; or (2) in law,
tion, is a n e e d l e s s v a r i a n t o f accredit “increasing in force as a result o f additional or
supporting evidence.” In Scots law, cumulative is
Accruer, like accruement, is
a c c r u a l; a c c r u e r . used also to mean “concurrent” <to serve cumula­
an obsolete form of accrual, the general noun tive sentences>.
corresponding to the verb accrue. Accruer survives Accumulative = acquisitive; inclined to amass.
only in the phrase clause of accruer. Yet accrual In addition, it has the meanings ascribed to cumu­
has made substantial inroads even into this lative. Yet it would be salutary to strengthen the
phrase, so that accrual and accruer now coexist distinction and restrict accumulative to the sense
needlessly. It is time to reject the archaic, and to “acquisitive.”
establish firmly the modern form. Hence we
should write clause of accrual. a c cu sa tio n ; a ccu sa l. The first, o f course, is cur­
rent; the second is an obsolete word now classifi­
a ccru e . A. R estriction to Financial Context. able as a NEEDLESS v a r i a n t . E.g., “Even families
At least two critics have recommended that this who limit themselves to superficial conversations
word be restricted to monetary contexts, quite . . . will recognize the dynamics at work here—
unaware o f its most common meaning in legal the mother-son thing, the mother-daughter thing,
contexts. Interest accrues, we may be certain, but the sister-brother thing, the brother-brother
so do causes of action—at least in jurisdictions in thing, the whole stew o f tensions and attractions,
which they do not arise. (See (B).) E.g., “Plaintiffs accusals [read accusations] and denials.” Dan Sul­
cause of action for silicosis did not accrue until livan, “Total Blame," L.A. Times, 2 Dec. 1989, at
the plaintiff either knew of or had reason to know F9. Cf. re cu sa l.
of the disease.”
This use should not be extended further to accusative. See accusatory.
acerbic 17

a c c u s a t o r i a l ; i n q u i s i t o r i a l . Accusatorial = (1) accu se; ch arge. One is accused of, but charged
o f or pertaining to an accuser; or (2) indicating with, a misfeasance.
the form o f criminal prosecution in which the
alleged criminal is publicly accused o f the crime a c c u s e d , n., ( = the defendant in a criminal case)
and is tried in public by a judge who does not was once said to be “more appropriate than either
act as the prosecutor” accu sa toria l procedures prisoner or defendant.” Archibald Brown, A New
Sense (2) grew directly out o f sense (1), for, in the Law Dictionary 10 (1874; repr. 1988). Its superior­
accusatorial system o f criminal trial, the victim ity to prisoner—a word that can prejudice juries
(i.e., accuser) made complaint against the of­ (and perhaps even judges)— is unquestionable.
fender. But why it should have been considered “more
Today, o f course, accusatorial denotes the com­ appropriate” than defendant is a mystery. Today
mon-law system o f criminal procedure. It is com­ it is certainly less common in American and Brit­
monly contrasted with the civil-law term inquisi­ ish courts than defendant, a colorless term: “[I]f
torial, which describes “a system o f criminal you were on trial for a crime, would you rather
justice . . . in which the truth is revealed by an be called ‘the accused' or ‘the defendant’? It seems
inquiry into the facts conducted by the judge” to me that the latter expression is preferable, as
OCDL). the more neutral.” Glanville Williams, Textbook
Despite its neutral sense in civil law, inquisito­ of Criminal Law 93 n.3 (1978).
rial often appears in common-law contexts as a From a stylistic point o f view, accused becomes
pejorative word— e.g.: “The interrogation de­ awkward in the possessive case or as a plural:
scribed in Miranda illustrated the extreme impor­ “The accused's silence may generate a reasonable
tance that American society placed on criminal inference that the accused believed the statement
prosecution, allowing tricks, cajolery, and even to be true.” Usually this awkwardness can be
coercion to secure evidence from the suspect; the remedied by use o f the genitive: “The silence (or
distinction between the inquisitorial and the ac­ statement) o f the accused . . .”; or, “The accused
cusatorial systems had become blurred.” person's silence (or statement) . . . .” Cf. d e ­
A variant term for accusatorial procedure is c e a s e d . See POSSESSIVES ( f ) & p l u r a l s ( d ).
adversary procedure, although the latter term
may suggest civil as well as criminal proceedings. accu see is a NEEDLESS VARIANT o f accused, q.v.
E.g., “Later, [Judge Oren R. Lewis] turned to
Accusa­
a c c u s a to r y ; a c c u s a tiv e ; a c c u s a to r ia l. James S. Augus, the senior Justice Department
tory ( = accusing; o f the nature o f an accusation) trial lawyer, and accused him o f ‘shifting the
is occasionally confused with accusatorial, q.v. burden o f proof from the accuser [the Justice
Accusative, although sometimes used in the Department] to the accusee [read accused] . . . . ' ”
place o f accusatory, should be restricted to its Robert Meyers, Courtroom Becomes Classroom,
grammatical sense relating to the objective case Washington Post, 17 March 1979, at C3./ “This
o f nouns. E.g., “The feelings, attitudes and rela­ would, o f course, suggest Nicholas Daniloff, U.S.
tions of the parents o f the five-year-old child are News' Moscow correspondent, as the actual ac­
strained, accusative [read accusatory] and acrimo­ cusee [read accused].” Ranee Crain, Spying Inside
nious.” Rodgers v. Hill, 453 So. 2d 1057, 1058 the Inside Story, Advertising Age, 29 Sept. 1986,
(Ala. Civ. App. 1984)./ “There is no contention at 46. See -EE.
herein that the witness was emotional, condem­
natory, accusative [read accusatory] or demanding accu ser; accu sor. The -er form is standard. See
vindication.” McQueen v. Commonwealth, 669 -ER (a ).
S.W.2d 519, 523 (Ky. 1984).
a c c u s t o m e d . Formerly, the idiom was accus­
accu se may be used transitively or, less com­ tomed to do— e.g.: “[F]rom the beginning o f our
monly, intransitively. Here it is intransitive: “It legal studies we are accustomed to think o f law
is conceivable that the Court has overstepped its and equity as sharply divided.” Carleton K. Allen,
boundaries as the dissenting Justices accuse.” See Law in the Making 413 (7th ed. 1964). But in the
c h a r g e (a ). mid-20th century, the idiom shifted to accustomed
Usually a word for criminal-law contexts, ac­ to doing, accustomed to thinking, etc. Today the
cuse has also been used to introduce allegations older usage sounds strange to many ears, but
o f noncriminal conduct (as in the preceding quota­ some traditionalists stick to it.
tion). E.g., “The teams stand accused, essentially,
of refusing to grant plaintiffs cablecast rights in a c e r b i c , in AmE, is sometimes considered infe­
furtherance o f a conspiracy with Cablevision to rior to acerb, but the latter is so rare— and the
monopolize cable television trade in Huntington.” former so common—that the criticism is mis­
18 acknow ledgem ent

placed. Acerbic is standard in BrE, in which acerb “the act o f acquiring,” though acquisition is more
is virtually unknown. The noun is acerbity. usual.

a c k n o w le d g e m e n t . A. Spelling. As with a c q u ire r. So spelled—not acquiror, as it is some­


judgment and abridgment, the spelling without times misspelled: “ [T]he acquiror [read acquirer]
the -e- is preferable in AmE, acknowledgement gained a substantial position in the target com­
being more common in BrE. pany's stock.” Gearhart Indus., Inc. v. Smith Int*l,
B. A nd verification. An acknowledgment is a Inc., 592 F. Supp. 203, 218 (N.D. Tex. 1984).
formal declaration made in the presence o f an
authorized officer, such as a notary public, by a c q u isitio n . See a cq u ire m e n t.
someone who signs a document and swears to the
authenticity of the signature. E.g., “It is sufficient a cq u it. A. Civil and Crim inal Contexts. Leff
if the testator states to the witnesses that the writes: “One might loosely refer to a party ‘acquit­
signature is his signature. This is known as ac- tedl9in a civil action, though one would ordinarily
kowledgment o f the signature.” Robert Kratovil, be tempted to use the terminology only if the
Real Estate Law 245 (1946). cause were quasi-criminal, e.g., an action charg­
A verification, by contrast, is such a formal ing actual fraud, or an intentional physical tort
declaration by which one swears to the truth like battery.” Arthur A. Leff, The Leff Dictionary
of the statements in the document. E.g., “After of Law, 94 Yale L.J. 1855, 1905 (1985).
making demand for judgment for $955, defen­ B. P reposition with. The verb acquit takes of,
dants appended a verification, notarized and not from — e.g.: “In the end James was induced to
sealed, in which they swore that the facts stated withdraw a letter resigning from the Society, after
in the [answer were] . . . ‘true and correct/” the Council had passed a resolution acquitting
Miller v. Master Home Builders, Inc., 239 A.2d him from [read of] any unfairness.” K.M. Elisa­
696, 697 (Del. Super. Ct. 1968). beth Murray, Caught in the Web o f Words 286
(1977).
a consiliis. See o f cou n s e l. C. Past Tense. As a past-tense verb or a past-
participial adjective, the form acquit is obsolete.
a cq u a in ta n cesh ip is a n e e d l e s s v a r i a n t o f ac­ It lives only in the LAW FRENCH phrase autrefois
quaintance; it adds nothing to the language ex­ acquit ( = heretofore acquitted). The accepted
cept another syllable, which we scarcely need. form today is acquitted.
E.g., “The trial judge's acquaintanceship [read
acquaintance] with the witness was not unusual a cq u itta l; a cq u itta n ce ; a cq u itm en t. The first
in that it is to be expected that he would have is the usual term, meaning both (1) “a release or
contacts with other members of his bar in the discharge from debt or other liability” (W3); and
normal practice o f law.” (2) “a setting free or deliverance from the charge
o f an offense by verdict o f a jury, sentence o f a
a cq u ie s ce takes in or to. Some authorities have court, or other legal process” (W3). Acquitment, a
suggested that in is the only proper preposition. NEEDLESS VARIANT, ÍS obsolete.
Yet the OED shows age-old examples with the Acquittance is obsolete in all senses except “a
construction acquiesce to, and its labeling that written release showing that a debtor has been
construction obsolete must be deemed a prema­ discharged o f an obligation.” Perhaps it would be
ture judgment, for it is fairly common in legal advantageous to allow acquittance this commer­
texts. E.g., “ [T]he defense requested, or at least cial meaning, and to leave acquittal to the crimi­
acquiesced to, the inclusion o f a voluntary man­ nal law. E.g., “There are suggestions in the case
slaughter instruction in the jury charge.” Clara that if Mrs. Beer on receipt o f the last installment
Tuma, Appeal o f Self-Made Error Denied, Tex. had given Dr. Foakes an ‘acquittance'—that is, an
Law., 7 Oct. 1991, at 9. Acquiesce with is not, acknowledgment o f payment in full— that would
however, in good use. The verb has three distinct have been binding on her.” Grant Gilmore, The
syllables: /ak-wee-es/. Death o f Contract 31 (1974).

a cq u ie sce n ce . See p erm ission . a cq u itta l-p ro n e . See g u ilt-p ro n e .

acq u irem en t; a cq u isitio n . “The former denotes a cq u itte e (= one acquitted o f a crime) is an ugly
the power or faculty of acquiring; the latter, the the phrase acquitted defendant is or­
n e o l o g is m ;

thing acquired.” Eric Partridge, Usage and Abus- dinarily the better choice. E.g., “The Code also
age 17 (1973). E.g., “His acquirements in law sur­ provides that the acquittee [read acquitted defen­
pass his acquisition o f wealth.” Both also mean dant] is entitled to a judicial hearing every six
act 19

months.” Jones v. U.S., 463 U.S. 354, 354 (1983)./ mean by it any event [that] is subject to the
“He is, therefore, not an 'insanity acquitted but a control o f the human will.” M.G. Paulsen & S.H.
'criminally insane com m ittee/” Glatz v. Kort, 650 Radish, Criminal Law and Its Processes 212
F. Supp. 191, 195 (D. Colo. 1984). [Read He is (1962).
therefore not a defendant acquitted by reason of Generally, act denotes the thing done, action
insanity, but one committed to a guardian as the doing o f it. Crabb approaches a workable
criminally insane.] See c o m m itte e & -EE. demarcation:

When these words are taken in the sense of the thing


Four points merit
A c r o n y m s a n d In it ia l is m s .
done, they admit of a . . . distinction. An act is the single
our attention here. First, we should be aware of thing done, or what is done by a single effort, as that is
the traditional distinction between the two types your act or his act\ an action may consist of more acts
o f abbreviated names. An acronym is made from than one, or embrace the causes or the consequences of
the initial letters or parts o f a phrase or compound the action, as a bold action, to judge of actions, etc.
term. One ordinarily reads or speaks it as a single Hence it is that the term act is more proper than action
where it is so defined as to imply what is single and
word, not letter by letter (e.g., radar = radio
simple, as an act of authority, an act of government, an
detection and ranging). An initialism, by contrast, act of folly, and the like; but otherwise the word action is
is made from the initial letters or parts o f a to be preferred where the moral conduct or character is
phrase or compound term, but is usually pro­ in question. We may enumerate particular acts of a man’s
nounced letter by letter, not as a single word (e.g., life, as illustrative of certain traits of his character, or
r.p.m. = revolutions per minute). certain circumstances of his life; but to speak at large of
his actions would be to describe his character.
Second, the question often arises whether to
George Crabb, Crabb’s English Synonymes 24-25
place periods after each letter in an acronym or (1917).
initialism. Search for consistency on this point is
futile. The trend nowadays is to omit the periods; As a further gloss, action suggests a process—
including them is the more traditional approach. the many discrete events that make up a bit of
Yet surely if an acronym is spoken as a single behavior—whereas act is unitary.
word (e.g., ERISA, ERTA), periods are meaning­ B. A ct o f omission . Is it proper to speak o f an
less. If an initialism is made up o f lowercase act o f omission, or does act invariably denote a
letters, periods are preferable: rpm looks odd as positive act, i.e., an act o f commission? Usage
compared with r.p.m., and am looks like the verb differs: in the phrase act or omission, the word
(as opposed to a.m.). One method o f determining act denotes an act o f commission, as opposed to a
whether to omit or include periods is to follow the forbearance; but at other times the word appears
form of the organization one names (e.g., IRS, to include a forbearance as well as an act o f
HUD), although inconsistencies are common. commission. Thus, the phrase act o f omission may
Third, the best practice is to give the reader be proper; at the same time, though, some readers
some forewarning o f uncommon acronyms by are likely to sense a MISCUE by wondering
spelling out the words and enclosing the acronym whether o f is a typographical error for or.
in parentheses when the term is first used. A C. A nd enactm ent. Act has many meanings,
reference to CARPE Rules may confuse a reader but, when used as a synonym for statute, it is
who does not at first realize that three or four usually clear from the context. Strictly, enactment
lines above this acronym the writer has referred should refer to the passing or enacting o f a law
to a Committee on Academic Rights, Privileges, (i.e., its enactment), but not to the law once en­
and Ethics. acted. E.g., “[T]he purpose o f an enactment [read
Finally, as illustrated under the entry entitled act] is embedded in its words even though it is
INITIALESE, the use in a single text o f a number not always pedantically expressed in words.” U.S.
o f these abbreviated forms leads to dense and v. Shirey, 359 U.S. 255, 261 (1959) (per Frank­
frustrating prose. furter, J.)./ “Several states that have patterned
their surveillance statutes on the federal model
act. A A nd action . These are important words have simply incorporated this exception into their
in law; yet they are often used indiscriminately. enactments [read acts\ see i n e l e g a n t v a r i a t i o n ],
To be sure, the words overlap a great deal, and it and other states have adopted consent surveil­
is difficult to delineate the distinctions accurately. lance statutes.” Enaction is a NEEDLESS v a r i a n t
Act is the more concrete, action the more abstract o f enactment. To sum up, courts pass on the con­
word. But even act is a vague word, “being used in stitutionality o f acts, not enactments; one wit­
various senses o f different degrees o f generality. nesses the enactment o f a bill.
When it is said, however, that an act is one o f the In BrE, Act (= statute) is usually capitalized
essential conditions o f liability, we use the term so as to prevent MISCUES— e.g.: “[W]hen an Act
in the widest sense o f which it is capable. We was repealed, and the repealing statute itself was
20 actio(n)

subsequently repealed, the first Act was revived any definition consistent with this usage, which
as from the original time o f its commencement.” is predicated upon a misunderstanding o f action
Carleton K Allen, Law in the Making 472 (7th ( = lawsuit) as used in the term (i.e., “giving rise
ed. 1964). See treaty. to a lawsuit”).

a ctio (n ). In phrases such as actio(n) ex contractu a ctio n , fo r m o f. See fo r m o f a ctio n .


and actio(n) ex delictu, action is better than actio.
Better yet is contract action or tort action. a c tio n fo r m o n e y h a d a n d r e c e iv e d . See
m o n e y h a d a n d r e c e iv e d , a c tio n fo r.
a ction . A. A nd suit. Action = a mode o f pro­
ceeding in court to enforce a private right, to a c tio n fo r m o n e y p a id . See m o n e y h a d a n d
redress or prevent a private wrong, or to punish a r e c e iv e d , a c tio n fo r.
public offense. As the latter part o f that definition
suggests, it is possible to speak o f criminal ac­ a c tio n o n th e c a s e , a l o a n t r a n s l a t io n o f the
tions. Originally, action referred exclusively to law french action sur le case, is the common-
proceedings in a court o f law; suit referred to law term for a personal tort action. E.g., “This is
proceedings in chancery (or equity), as well as an action on the case by husband for the alienation
to prosecutions at law. When the jurisdictional o f affections o f his wife by her parents, the defen­
distinction existed, an action ended at judgment, dants.”
but a suit in equity ended after judgment and Trespass on the case and case alone are variant
execution. Today, since virtually all jurisdictions forms. None o f these phrases is used much in
have merged the administration o f law and eq­ modem legal prose, except in historical contexts—
uity, the terms action and suit are interchange­ e.g.: “The modern torts, for the most part, are the
able. See suit. offspring o f that prolific *action on the case’ which
B. A nd act. See a c t (a ). began to be developed in the later years o f the
C. In Phrases Such as action in trespass, ac­ fourteenth century.” C.H.S. Fifoot, History and
tion in detinue. Often such phrases are shortened Sources o f the Common Law 3 (1949). See tre s­
to trespass, detinue, etc., and the result is often a p a ss o n th e ca se.
MISCUE. In the following sentence, for example,
the trespasser and the complainant seem to be a ctiv a b le . So formed— not activatable, as some
transposed: “Trespass by Rollin A. Richmond [the writers mistakenly write: “Perry does not assert
plaintiff] against James W. Fiske [the tres­ that film coatings activatable [read activable] to
passer].” Richmond v. Fiske, 35 N.E. 103, 103 adhesiveness by head were new in the art.” S.D.
(Mass. 1893). Warren Co. v. Nashua Gummed & Coated Paper
Co., 205 F.2d 602, 604 (1st Cir. 1953). See
a ctio n a b le has two important senses: (1) “fur­ -ATABLE.
nishing grounds for a lawsuit”; and (2) “liable to
a lawsuit.” Sense (1) is the most usual in legal a ctiv a te. See a ctu a te.
contexts— e.g.: “One o f the general rules govern­
ing this action is that words are actionable when A c t iv e V o ic e . See p a s s iv e v o i c e .

spoken of one in an office o f profit which may


probably occasion the loss o f his office.”/ “Plaintiff a ct o f G o d is a vague, frequently vilified short­
Banks states no actionable claim o f constitutional hand expression that does not lend itself to clear
deprivations.” legal thinking. It is narrower than vis major or
The word has recently taken on a third sense: force majeure in that it denotes an unusual and
“giving rise to an act or action; act-on-able”—e.g.: uncontrollable action o f nature, whereas vis major
“He had an actionable intent—that is, he would and force majeure also include the results o f hu­
act on it.”/ “Many are ambitious visions o f a uto­ man action. See fo r c e m a jeu re & v is m sgor.
pian business state— nebulous feel-good credos
designed to inspire employees but lacking any a ctu a l; c o n stru ctiv e . These words are opposed
actionable component.” William B. Yanes, Mission in a variety o f legal phrases, for example, con­
Statements Can Be Inspiring but Impractical, In­ structive as against actual fraud, constructive as
vestor’s Daily, 10 Dec. 1990, at 8./ “Only [a mar­ against actual possession. When actual is used in
keting professional] who understands the real such a phrase, the extrinsic facts merit the legal
world o f lawyering can utilize the data to make conclusion that, e.g., fraud or possession exists.
recommendations that are precise and action­ When constructive is used, the extrinsic facts do
able.” Mercy Jimenez, The Group, A.B.A. J., Jan. not fall within the strict definition of, say, fraud
1991, at 86. But most dictionaries do not record or possession, but the court finds (or is requested
ad damnum 21

to find), usu. on equitable grounds, that the legal selective prosecution is actuated by constitution­
conclusion o f fraud or possession should apply. ally impermissible motives [read the government,
Lon Fuller considered the adjective constructive a in its selective prosecution, was acting on constitu­
“badge o f shame,” saying that expressions such tionally impermissible motives]” See a n im ate.
as those just mentioned “stand out like ugly scars
in the language o f the law, the linguistic wounds actus non fa cit reum nisi mens sit rea . This
o f discarded make-believes.” Lon L. Fuller, Legal m a x i m , phrased in LAW LATIN, is pronounced Íak -
Fictions 22-23 (1967; repr. 1977). See c o n s tr u c ­ tds-non-fas-dt-ree-Bm-nl-sl-men-sit-ree-d/. Mean­
tive. ing “an act does not make a person guilty unless
his or her mind is guilty,” the maxim expresses
a ctu a l fa ct, in . Á redundancy: all facts are ac­ the criminal-law requirement o f mens rea in addi­
tual, just as they are all true. When one is uncer­ tion to an actus reus. Traceable to the early 12th
tain o f the truth o f allegations, then there might century, the brocard (q.v.) appears much more
be “alleged facts.” In actual fact is a pomposity commonly in British than in American legal writ­
for actually. ing—e.g.: “Intent becomes the chief, though not
the only, test; and the general rule is formed:
a ctu a lity is frequently a turgid substitute for actus non facit reum nisi mens sit rea, i.e., an act
reality or fact E.g., “The existence o f a fiduciary does not make the doer guilty unless his mind is
relationship is to be determined from the actuali­ guilty . . . .” O. Hood Phillips, A First Book o f
ties [read facts] o f the relationship between the English Law 196 (3d ed. 1955).
persons involved.”/ “The great divide in the equal-
protection decisions lies in the difference between actus reus . See mens rea & o v e r t act.
emphasizing actualities [read realities] and the
abstractions o f legislation.” In actuality is always A.D. This abbreviation (for Anno Domini, not
inferior to actually. after death) is unnecessary after dates in legal
documents. In fact, it is absurd to use it with a
a ctu a te; a ctiv a te. The Evanses wrote that actu­ modern date.
ate means “to move (mechanical things) to action”
and that activate means “to make active.” Bergen a d for advertisement is acceptable only in very
Evans & Cornelia Evans, Contemporary Ameri­ informal contexts.
can Usage 10 (1957). The distinction is a fine
one not generally followed by dictionaries. Here a d a p t and adopt are occasionally confounded. To
actuation is correctly used: “A blade brake control adapt something is to modify it for one’s own
device would stop the blade less than one second purposes; to adopt something is to accept it whole­
after actuation.” sale and use it.
More often, however, actuate and actuation ap­
pear in legal prose as fancy substitutes for moti­ a d a p t(a t)io n , -(a t)ive. The longer form is pre­
vate and motivation in a variety o f contexts. This ferred in the noun (<adaptation), the shorter in the
usage should generally be avoided on stylistic adjective (adaptive).
grounds, but it is not strictly incorrect—e.g.: “To
prevent imposition o f a constructive trust, the a dato; a d atu . Both
l e g a l i s m s mean “from the

wife would have to establish by a preponderance date,” and both are anachronistic. A dato is the
o f the evidence that the conveyance was actuated better Latin form.
[read motivated] by fraud.”/ “The wrong was actu­
ated [read motivated] by a positive design to in­ a d d a b le; a d d ib le . The former is preferred. See
jure the third person to whom the duty was due.” -ABLE (A).
The temptation to use actuate rather than moti­
vate is much greater where the noun motive ap­ ad damnum [L. “to the damage”] = (1) adj., of,
pears, so that one avoids r e d u n d a n c y . But a relating to, or constituting the clause stating—in
simple rewording usually obviates the need for a declaration, writ, or pleading—what damages
actuate— e.g.: “When one exercises a legal right, the plaintiff demands; (2) n., a prayer for relief
the motive that actuates him is immaterial [read that names the amount o f damages claimed; or
one's motives are immaterial]*'l “Counsel had the (3) n., the amount of damages that a plaintiff
absolute privilege o f making such deductions, claims in any given case.
even though they were false and he was actuated Generally, it is possible for legal writers to use
by improper motives [read had improper clearer phrasing without this l a t in is m — e.g.:
motives]”/“The showing o f invidiousness is made “Thus, even if the statute were retroactively appli­
if a defendant demonstrates that the government's cable . . . it refers only to the ad damnum plead­
22 added to

ing [read pleading demanding damages] and not therefore, assailed by Maria Rosa, as clearly her
to the closing argument.” Gumbs u. Pueblo Int’l, discontent addresses [read centers on or arises out
Inc,., 823 F.2d 768, 771 n .l (3d Cir. 1987)7 “ [A] of] the denial o f a jury trial on the only factual
plaintiff may file a lawsuit with an ad damnum issues raised having to do with proper division of
[read claiming damages] in excess of the amount the estate.” That sentence exemplifies HYPALLAGE
in the notice of claim.” McFarlane by McFarlane run amok; generally, address should take per­
v. U.S., 684 F. Supp. 780, 782 (E.D.N.Y. 1988)./ sonal subjects, although by legitimate transfer­
“Counsel reasoned that each o f the original plain­ ence one might say that arguments or pleas ad­
tiffs claimed an amount far in excess o f $10,000 dress certain points. But discontent is not a proper
in the ad damnum clause o f [read in the prayer subject for the verb. Following is a correct use of
for relief in] their amended complaint.” Sterling the term: “These points of error all relate to events
v. Velsicol Chem. Corp., 855 F.2d 1188, 1195 (6th after the making o f the contract and fail to ad­
Cir. 1988). dress the issue of fraud in the inducement.”
Address should be accented on the second sylla­
a d d ed to . See t o g e t h e r w i t h . ble both as a verb and as a noun.

In the realm of human


a d d ic te d ; d e p e n d e n t. a d d r e s s a b l e is listed in RH2 as a n e o l o g i s m
reaction to drugs, the distinction between these dating from 1950-1955, but much earlier exam­
terms can be an important one. One who is ad- ples exist in law—e.g.: “ [I]nasmuch as counsel
dieted to a habit-forming drug has a compulsive themselves say that [the objections] are made not
physiological need for it. One who is dependent so much to impeach the validity o f the act as to
on a drug has a strong psychological reliance on show its injustice, a consideration addressable to
it after having used it for some time. Addiction, the Legislature, but not to us, no discussion of
then, is primarily physical, whereas dependency them is required.” Riley v. Chambers, 185 P. 855,
(also known as habituation) is primarily psycho­ 859 (Cal. 1919).
logical.
ad d ressee. See -EE.
a d d ita m e n t is a n e e d l e s s v a r ia n t o f addition.
a d d u c e ; e d u c e ; d e d u c e . All are useful in refer­
Neither synonym is as
a d d itu r ; in c r e s c itu r . ence to evidence. To adduce is to put forward for
common as the correlative term— remittitur (for consideration something by way o f evidence or
which see r e m i t t e r ) —but additur is the more arguments. E.g., “In the original panel opinion
usual of the two, as Traynor explained: “Additur, we held that Rushing’s live testimony at trial
sometimes called increscitur, is used . . . to de­ would have had only a cumulative effect on this
scribe an order by which a plaintiffs motion for issue, because Wells had access to and did adduce
a new trial on the ground o f inadequate damages testimony concerning the town’s supervision and
is denied on the condition that the defendant training o f Rushing.”
consent to a specified increase o f the award.” To educe is to draw out or evoke or elicit. E.g.,
Dorsey v. Barba, 240 P.2d 604, 610 n .l (Cal. 1952) “That divorce judgment, after the filing o f this
(en banc) (Traynor, J., concurring & dissenting). suit, was reversed and remanded for retrial by a
The term additur is an American NEOLOGISM o f Texas intermediate court on October 27, 1983, as
the early 20th century; it does not occur in En­ was educed on further showings made in the fed­
glish cases, and the first contextual use by an eral trial court before that court’s judgment o f
American court suggests its newness: “ [T]he order dismissal now before us on appeal.”
made in this case, might perhaps be termed an To deduce is to infer—e.g.: “The jury could rea­
'additur’ ” Schiedt v. Dimick, 70 F.2d 558, 563 sonably have deduced that defendant intended
(1st Cir. 1934). For an interesting but erroneous such a result.” See d e d u c e & e d u c e .
account of the word—erroneous because it attri­
butes the word first to a Yale Law Journal article So spelled—not adduceable. (See
a d d u c ib le .
commenting on the case just cited— see Michael Occasionally, adducible (or its mis­
-a b l e (A).)
H. Cardozo, A Word Is Born: “Additur,” 1934- spelled variant) is misused for deducible— e.g.:
, 2 Scribes J. Legal Writing 143 (1991). “Thus, if . . . we determine that the residue of
facts is so devoid o f evidence o f probative value
ad d ress,v.t., = (1) to call attention to for discus­ and reasonable inferences adduceable [read de­
sion or consideration; or (2) to state (a question) ducible] therefrom, as to preclude guilt beyond a
(to someone). In sense (1) it is a f o r m a l w o r d reasonable doubt, we should so declare.” Liston u.
that is sometimes used inappropriately—e.g.: State, 250 N.E.2d 739, 743 (Ind. 1969)./ “On ap­
“That portion o f the trial court’s decree is not, peal, after . . . presuming the existence o f every
adhibit 23

fact reasonably adduceable [read deducible] from English equivalent. (See l a t i n i s m s .) The phrase
the evidence, the court must determine whether is sometimes used in citations in a sense similar
substantial evidence supports the finding o f pre­ to et seq.y q.v., but the better practice is to cite
meditation and deliberation.” People v. Mitchell, specific pages, that is, to give an ending as well
183 Cal. Rptr. 166, 171 (Cal. Ct. App. 1982).. as a starting point. If, however, ad fin. is to be
used, a period should follow the abbreviated form
a d d u ctio n , n., corresponds to the verb adduce (as just given).
but is not nearly as common as that verb. E.g.,
“His only reply to Scrope's adduction o f a named a d h e re n ce . A. And adhesion. Both words de­
case is, ‘Never will you see such an avowry re­ rive from the verb to adhere, but adhesion is
ceiv ed /” Carleton K. Allen, Law in the Making generally literal and adherence generally figura­
194 (7th ed. 1964). tive. One should write o f adherence to tenets or
beliefs, and o f adhesion o f bubble gum to the sole
a d eem is the verb form o f ademption. The pair
o f one's shoe. The word more frequently called
is analogous to redeem / redemption.
upon in legal contexts is adherence: “There are
also authorities to the contrary and we might
a d em p tion . A. A nd lapse. Whereas lapse oc­
make mention o f a retreat by the Supreme Court
curs when a beneficiary does not survive to receive
o f Nebraska from adherence to the rule.”/ “Can
property given in a will, ademption occurs when
conspirators signify their adhesion [read adher­
the testator otherwise disposes o f the property:
ence] at different times?” Glanville Williams, Text­
“Lapse was a matter o f no-Henry. Ademption is a
book o f Criminal Law 353 (1978).
matter o f no-car. To raise the question is usually
Yet the standard rules o f usage relating to these
to answer it. If the testator has no car at his
words find exceptions in the law. One exception
death, what if anything does he want Henry to
to the foregoing advice is the phrase adhesion
have? The will should say. If it does not say,
contract or contract o f adhesion. Said to have been
the dispute will turn on whether the bequest is
introduced into legal nomenclature by Edwin W.
specific—in which case it is adeemed by extinction
Patterson in The Delivery o f a Life Insurance
and Henry gets nothing— or general, in which
Policy, 33 Harv. L. Rev. 198, 222 (1919), the term
case the executor will have to get a car for Henry.”
refers to a standard printed contract prepared by
Thomas L. Shaffer, The Planning and Drafting of
one party, to be signed by the party in a weaker
Wills and Trusts 180 (2d ed. 1979).
position, usu. a consumer, who has little choice
B. T w o Types. The two types o f ademption are
about the terms o f the contract. The metaphor
usefully distinguished. Ademption by extinction is
suggested is that the consumer must adhere to
the forfeiture o f a legacy, bequest, or devise by
the contract as presented, or reject it completely.
the beneficiary because the property specifically
(Such a contract is also known, more familiarly
described in the will is not in the estate at the
to nonlawyers, as a take-it-or-leave-it contract.)
testator's death. Ademption by satisfaction occurs
Adhesion, then, has a figurative rather than a
when the testator, while alive, gives property to
literal sense in this legal phrase. See le o n in e
a donee named in the will, with the intention of
c o n tra ct.
rendering the testamentary gift inoperative.
Another exception, not so frequently encoun­
a d eq u a te; su fficien t. Though originally both tered, involves treaties. When a government en­
words were used in reference to quantity, today ters into some but not all o f the provisions o f a
there is a trend toward using adequate qualita­ treaty already existing between two other govern­
tively, and sufficient quantitatively. Hence ade­ ments, adhesion is the term to describe the third
quate means “suitable to the occasion or circum­ government's entrance into the treaty.
stances,” and sufficient means “enough for a B. P reposition with. Adherence, like adhesion,
particular need or purpose.” takes the preposition to. “This holding mandates
In contracts, with respect to consideration, q.v., close adherence from [read to] the letter o f the
a special distinction applies. One rule o f consider­ law.”
ation is that it need not be adequate but it must
be sufficient. Here, adequate consideration means a d h ib it, v.t., and its noun equivalent adhibition
a realistic economic equivalent o f the promise are pompous l e g a l i s m s . T o adhibit is to apply;
it buys, whereas sufficient consideration means an adhibition is an application (of something to
something having economic value and not stem­ something else). E.g., “We are importuned by the
ming from a preexisting legal duty. Dayton Newspapers, Inc., in this original action
in this court to adhibit [read apply] the extraordi­
ad fin(em) = to the end. One would be hard- nary writ o f prohibition . . . .” State ex rel. Day-
pressed to justify the Latin phrase in place o f the ton Newspapers, Inc. v. Phillips, 351 N.E.2d 127,
24 ad hoc

139 (Ohio 1976) (Corrigan, J., dissenting)./ “[A p ­ nem] attack on the trial judge.” Commonwealth
pellants’ adhibition [read application] o f mortal­ v. Rosario, 583 A.2d 1229, 1233 (Pa. Super. Ct.
ity tables and their presentation and argument 1990) (Cavanaugh, J., dissenting).
in the second trial . . . were predicated . . . on
the metachronism that Sally was bom nineteen ad idem = to the same point or matter; in
years before the accident [that] took her life in agreement. E.g., “That being so, there was no
1970 . . . .” Hines v. Sweet, 567 S.W.2d 435, 438 consensus ad idem, and therefore no binding
(Mo. Ct. App. 1978)./ “A threshold requirement contract.”/ “At the end o f the short trial I felt
for the adhibition [read application] o f Title VI to constrained to find that the plaintiff and defen­
a federal grantee’s employment practices appears dant were never ad idem [read never had the same
in § 604.” Guardians Ass’n v. Civil Serv. Comm’n, understanding] on the purported sale o f land by
466 F. Supp. 1273, 1281 (S.D.N.Y. 1979). the defendant to the plaintiff.” (Eng.) An English
equivalent, such as o f the same mind or to that
ad hoc, adv. & adj., is a widespread and useful effect, is generally more comprehensible than this
term meaning “for this specific purpose.” Though Latin phrase, and even more elegant. See f o r b id ­
some witch-hunting Latin-haters have questioned d e n w o r d s . For consensus ad idem, see m e e t i n g

its justification in English (see, e.g., Vigilans [Eric o f th e m in d s .


Partridge], Chamber o f Horrors 26 (1952)), it is
firmly established and serves legal language well These words should be
a d ja c e n t ; c o n tig u o u s .
when used correctly <ad hoc committee>. distinguished. Adjacent = lying near. Contiguous
By extension— some would say s l i p s h o d e x t e n ­ = directly abutting or bordering on. See a d j o i n .
s i o n —the term has come to mean “without any

underlying principle that can be consistently ap­ a d j e c t i v e l a w is not a set o f rules governing
plied”—e.g.: “The majority opinion insufficiently words that modify nouns, but rather the aggre­
considers the basic substantive rules o f law in­ gate o f rules on procedure. In law as in language,
voked by plaintiffs complaint; it is an ad hoc the adjective affects the substantive. E.g., “The
opinion that grants desired relief to needy persons adjective law o f workmen’s compensation, like the
but its effects on established law could be serious.” substantive, takes its tone from the beneficent
Sometimes the phrase appears to mean “impro­ and remedial character o f the legislation.” 3 Ar­
vised from whatever is at hand,” as here: “This thur Larson, Workmens Compensation Law §
procedure is carried out on a very ad hoc [read 77A.10, at 15-1 (1986).
haphazard?] basis.”/ “Lawyers and judges appar­ Adjectival law is a little-used variant—e.g.: “[A]
ently devise voir dire questions in a fairly ad hoc constructive trust frequently is classified as a
[read haphazard or desultory] way; sometimes division o f adjectival rather than substantive
prosecutors inadvertently pose questions that law.” 76 Am. Jur. 2d Trusts § 222, at 448 (1975)./
work to the advantage o f the defense, and vice- “Adjectival law relates to the enforcement o f
versa.” rights and duties: in particular, it concerns proce­
Generally speaking, the phrases on an ad hoc dure and evidence.” Glanville Williams, Learning
basis and in an ad hoc way are verbose for the the Law 19 (11th ed. 1982).
adverb ad hoc. (See b a s i s ( b ).) Likewise, ad hoc
should rarely if ever be qualified by very or fairly. A. What One Is. An adjective is a
A d j e c t iv e s .
Finally, attempts to coalesce the phrase into one word that modifies a noun. The word is sometimes
word have failed, and should be forgotten. Cf. p r o used sloppily as if it meant “noun”—e.g.: “ ‘Excel­
h a c v i c e ( a ). lence’ is an adjective [read noun] that describes
something which is o f the highest quality.” Their
ad hominem [L. “to the man”] is shortened from Work Stands Out, Barrister, Summer 1989, at 5.
the LATINISM argumentum ad hominem ( = an B. U ncom parable A djectives. A number o f ad­
argument directed not to the merits o f an oppo­ jectives describe absolute states or conditions and
nent’s argument but to the personality or charac­ therefore cannot take comparative degrees in
ter o f the opponent). most or more, less or least, or intensives such
The word is sometimes misspelled ad homi- as very or quite or largely. The illogic o f such
num— e.g.: “The Petitioners object to the conclu­ combinations is illustrated in this sentence: “It is
sion that it is permissible to challenge an expert possible that this idea too has outlived its use­
witness through an ad hominum [read ad homi­ fulness and soon will be largely discarded.” The
nem ] argument . . . .” U.S. v. Ellingsworth, 692 literal meaning o f discard impinges on the meta­
F. Supp. 356, 369 (D. Del. 1988)./“[T]he Common­ phor here: it is hard to imagine a single idea being
wealth has chosen to couch its appeal in language halfway discarded, though certainly it could be
characterized by an ad hominum [read ad homi­ halfway discredited.
Adjectives 25

The best-known uncomparable adjective is tives as nouns (corporeals [BrE] = corporeal


unique ( = being the one and only o f a kind). things). Legal writers refer to innocents (= inno­
Because something is either unique or not unique, cent persons), immovables, movables, and neces­
there can be no degrees o f uniqueness. Hence saries ( = necessary things). Indigent was origi­
more unique and very unique are incorrect. Yet nally an adjective (15th c.), but it came to be used
something may be almost unique or not quite as a noun (16th c.).
unique—if, for example, there were two such The same process occurred with hypothetical,
things extant. (See u n iq u e.) Many other words postmortem, principal (= principal investment),
belong to this class, such as preferable: “We think ignitables, potential, explosives, and recitative.
that, while perhaps the denial did not follow the More modern examples are finals ( = final exami­
most preferable [read the preferable] course, it was nations) and classifieds ( = classified advertise­
adequate.” ments). Similarly, we refer to the poor, the home­
Following is a short list o f uncomparable adjec­ less, the rich, the religious, and the destitute.
tives: Though recent semantic shifts remain unsuit­
able for formal contexts, we should resist the
absolute fundamental possible
benighted temptation to condemn all such shifts
adequate ideal preferable
in parts o f speech. Cf. n o u n s AS a d j e c t i v e s .
basic impossible principal
D. A djectives as Verbs. Though noun-to-adjec-
certain inevitable stationary
tive, adjective-to-noun, and even noun-to-verb
chief irrevocable sufficient
transformations are common in English, adjec-
complete main true
tive-to-verb transformations have never been
devoid major unavoidable
common. They usually have a jargonistic quality
entire manifest unbroken
(as in the first example below) or a trendy quality
essential minor uniform
(as in the second). Careful writers avoid them or,
false necessary unique
when quoting someone else, distance themselves
fatal only universal
by using telltale quotation marks (as Gilmore and
final perfect void
Black did): “The New York City Fire Commis­
first perpetuity whole
sioner directed that her cargo tanks be iinertedy
The general prohibition against using these through the introduction o f carbon dioxide into
words in comparative senses should be tempered the tanks.” Grant Gilmore & Charles L. Black,
with reason; it has exceptions. For example, Jr., The Law o f Admiralty 925 (2d ed. 1975)./
Thomas Jefferson used the phrase more perfect in “Clinton would be well-advised to low-key the task
the Declaration o f Independence, and the phrase force before it announces anything embarrassing
then made its way into the U.S. Constitution: “We . . . .” Joe Klein, Time to Step Back, Newsweek,
the People o f the United States, in order to form 17 May 1993, at 40. Cf. n o u n s a s v e r b s .
a more perfect Union, establish Justice, insure E. C oordinate Adjectives. When two adjec­
domestic Tranquility, provide for the common de­ tives, both modifying the same noun, are related
fence, promote the general Welfare, and secure in sense, they should be separated by and or by
the Blessings o f Liberty to ourselves and our Pos­ a comma—e.g.: “[T]he purpose o f Rule 11 as a
terity, do ordain and establish this Constitution whole is to bring home to the individual signer
for the United States o f America.” U.S. Const, his personal, non-delegable responsibility.” Jeffrey
pmbl. One writer criticizes this phrase and sug­ N. Cole, Rule 11 Now, 17 Litigation 10,12 (Spring
gests that it “should read ‘to form a more nearly 1991).
perfect Union.'” George J. Miller, On Legal Style, But when the consecutive adjectives are unre­
43 Ky. L.J. 235, 246 (1955). Although the Consti­ lated, they should have no intervening comma
tution is not without stylistic blemishes, this or conjunction— e.g.: “An interesting contrast in
surely is not one o f them, and the suggested edit judicial philosophy as to the scope o f an employ­
is pedantic. See m o re p e r fe c t. ee's ethical duty is revealed in a similar and Texas
In short, good writers occasionally depart from case [read similar Texas case\.n
the rule, but knowingly and purposefully. Poor Some consecutive adjectives present close ques­
writers use uncomparable adjectives indiscrimi­ tions— e.g.: “The brief, unsigned Supreme Court
nately, and in the end weaken their writing opinion said that the lawyers for Ms. Benten had
through hyperbolic qualification. See w e a s e l failed to show a substantial likelihood that the
WORDS. case would be won if it were argued before the
C. A djectives as Nouns. Words in the English United States Court o f Appeals for the Second
language frequently have the ability to change C ircu it. . . .” Phillip J. Hilts, Justices Refuse to
parts of speech. Thus nouns may act as adjectives Order Return o f Abortion Pill, N.Y. Times, 18
((deposition testimony, court protocol) and adjec­ July 1992, at 1. Is the fact that the opinion is
26 adjoin

brief related to the fact that it is unsigned (i.e., nonaccess between C.W. and her disappeared
per curiam)? If so, the comma is proper; if not, husband [read husband who has disappeared],
the comma is improper. Because signed opinions such a presumption should fail.” The reason is
tend to be longer than unsigned opinions, the that disappeared has not been accepted idiomati­
comma is probably justified. cally as a prepositive adjective, whereas other
For more on the punctuation o f successive ad­ past participles (such as tired and irritated) have
jectives, see PUNCTUATION (C)(1). been. Some legal phrases can be framed either
F. P rop er Names as A djectives. When a proper way: thus, cases decided and cases cited, or de­
name is used attributively as an adjective, the cided cases and cited cases.
writer should capitalize only that portion used I. Phrasal o r C om pound Adjectives. See
in attribution. In Southmark Properties v. The PHRASAL ADJECTIVES.
Charles House Corp., 742 F.2d 862 (5th Cir. 1984), J. M odification o f A djectives E nding in -ed.
the opinion is scattered with references to “The See v e r y ( b ).
Charles House property.” The, however, should K. A djectives E nding in -ly. See ADVERBS, PROB­
be lowercased, for the skeletal phrase is “the prop­ LEMS WITH (B).
erty,” and only Charles House is being used attrib­ L. A djectives That Follow the Noun. See POST­
utively. The definite article, then, derives from POSITIVE ADJECTIVES.
the skeletal phrase and not from the name o f the M. Dates as A djectives. See DATES (C).
party, even though the name o f the party is The
Charles House Corporation. a d jo inmeans both “to join” and “to lie adjacent
The practice o f using place-names as adjectives to.” In the latter sense, it is transitive and should
is generally to be resisted, although it is increas­ take a direct object: “The park was likened to a
ingly common. Using a city plus the state as an garden that traditionally (as an appurtenance)
adjective disrupts the flow of the sentence—e.g.: adjoined to a residence [read adjoined a resi­
“Farmland’s president, Marc Goldman, sent out dence].” Etymologically, adjoining means “directly
sleuths who traced the missing containers to an abutting; contiguous,” as opposed to adjacent, q.v.
Elizabeth, N.J., warehouse he says is filled with
discarded bottles of designer water.” Edward a d j o u r n [fr. F. à jour “to a day”] means literally
Felsenthal, Nobody’s Crying Yet, But There Must “to put off to another day or place.” E.g., “But the
Be Spilled Milk Somewhere, Wall St. J., 20 June case was adjourned to the court o f Exchequer
1990, at B l. Such constructions contribute to Chamber, where all the judges o f England consid­
n o u n p l a g u e , lessen readability, and offend sen­ ered difficult cases . . . .” Alan Harding, A Social
sitive, literate readers. History o f English Law 105 (1966)./ “[M agistrates
The disruption does not occur when the city’s have very wide powers to grant or refuse bail
name occurs without the state—e.g.: “An Austin when a person is first brought before them, and
jury returned a verdict in the court o f Judge the case has to be adjourned to a later date.” P.S.
Walter Smith o f Waco.” Accountant Found Guilty, Atiyah, Law and Modern Society 25 (1983).
Austin American-Statesman, 21 July 1990, at B6.
G. Pronom inal Indefinite A djectives. Adjec­ a d j o u r n m e n t ; a d j o u r n a l . Except in Scotland,
tives such as each, any, every, all, no, and some the latter is a n e e d l e s s v a r i a n t . In Scotland,
should be used only when they serve some demon­ the Books o f Adjournal are the records o f the
strable purpose. When a subject is plural, such Justiciary Court.
an adjective is usually unnecessary—e.g.: aAll cor­
porate officers [read Corporate officers] shall a d j u d g e ; a d j u d i c a t e ; d i j u d i c a t e ; j u d g e . Ad­
judge = (1) to consider judicially; to rule upon;
A few conventions with these words are useful (2) to deem or pronounce to be; or (3) to award
in the realm o f d r a f t i n g . First, if a right, privi­ judicially. Adjudicate shares all three meanings
lege, or power is extended, the drafter should use o f adjudge and is more common than adjudge in
each or a <each director may>. Second, if a duty sense (1). In senses (2) and (3), adjudge is the
is imposed, the drafter should use each or a <each more usual term: “Nor can a court o f equity ad­
director must>. And third, if a proscription is set judge [sense (2)] the decree o f any other court
out, the drafter should use no <no director binding or punish the violation o f any decrees
may>. See s t a t u t e d r a f t in g & w o r d s o f a u ­ but its own.”/ “Costs are adjudged [sense (3)] to
t h o r it y . appellant.” For examples o f adjudicate in sense
H. Past-Participial Adjectives. Some past par­ (2), see a d j u d i c a t e ( b ).
ticiples work perfectly well as adjectives, and oth­ Dijudicate ( = to decide between; adjudicate) is
ers do not. There can be a tired or irritated person, a rare term without justification in modem prose.
but not a disappeared person: “Because o f the Judge is the general term meaning “to try a
adjure 27

person or case as a judge does.” Additionally, it The adjectival usage purports to give the state­
has the lay meaning “to form a critical estimate ment more authority, for it focuses on what the
of.” Judge should not be used in sense (2) of subject is, as opposed to what someone has done
adjudge, as here: “Plaintiff argues that the society to it.
must declare a winner o f the contest or he judged
[read adjudged] to have breached an implicit a d ju d ic a tio n ; a d ju d ica tu re . Adjudication =
agreement with the contestants.” (1) the process o f judging; (2) a court’s pronounce­
The Evanses wrote that adjudicate was more ment o f a judgment or decree; or (3) the judgment
common than judge in reference to disputes out­ so given. Adjudicature is a n e e d l e s s v a r i a n t .
side the courts. Bergen Evans & Cornelia Evans, (See ju d ic a tu r e .) On the plural use o f adjudica­
Contemporary American Usage 261 (1957). Law­ tion, see PLURALS (B).
yers, however, restrict adjudicate to contexts in­ L eif writes that, in modern usage, “adjudication
volving courts or other resolvers o f disputes, can . . . be used as a rough synonym for litiga­
whereas they may use judge in nonlegal senses. tion— e.g.: ‘the matter is in adjudication now.’ ”
See a d ju d ica te . Arthur A. Leff, The Leff Dictionary o f Law 1855,
Adjudge is best used with the object immedi­ 1934 (1985). This SLIPSHOD EXTENSION should be
ately following: “The court found him guilty o f the avoided unless, o f course, the writer intends to
charge and adjudged him in contempt.” There refer to the deliberative process o f judges and not
is a tendency (to be avoided) to insert as after to the courtroom proceedings in which lawyers
adjudge— e.g.: “adjudge as bankrupt” for “adjudge take part. See a d ju d ica te (a ) & litiga te.
bankrupt.” Cf. a b ju d g e.
a d ju d ica tiv e ; a d ju d ica to ry ; ju d ic a tiv e ; ju d i­
a d ju d g (e)m en t. See ju d g (e )m e n t. c a to ry ; ju d ic a to r ia l. As between adjudicative
and adjudicatory, both meaning “having the char­
a d ju d ica ta ire . See a d ju d ic a to r . acter or attribute o f adjudicating,” the former is
standard, easier to pronounce, and better sound­
a d ju d ica te . A. P rop er O bject with. Disputes ing. Yet the latter appears with some frequency.
and controversies are adjudicated, or “settled judi­ Thus, even though we have adjudicative facts
cially”; property cannot be adjudicated, although and adjudicative hearings, our legal texts reveal
conflicting rights in it can be. E.g., “The superse­ adjudicatory proceedings and an adjudicatory ac­
deas bond must be in the amount o f the judgment tion. There is no need for the two to coexist, for
or the value o f property adjudicated [read property no workable d if f e r e n t ia t io n now appears to be
in dispute, or property subject to adjudication].”/ possible. One is best advised to use adjudicative
“We reverse the judgment o f the Supreme Court in all contexts.
o f Kansas insofar as it held that Kansas law was Judicative is a NEEDLESS VARIANT o f adjudica­
applicable to all the transactions that it sought to tive. Likewise, judicatorial is a n e e d l e s s v a r i a n t
adjudicate [read transactions giving rise to this of judicial. For judicatory, see ju d ic a tu r e . See
controversy (or adjudication)]” See a d ju d ic a ­ also ju d ic a tiv e .
tion . Cf. litig ate.
a d ju d ica tiv e fa cts. See le g isla tiv e fa cts.
B. M eaning “ to deem .” Adjudicate frequently
means “to deem or pronounce judicially,” sense a d ju d ica to r; a d ju d ica ta ire ; ju d ic a t o r . Adju­
(2) of adjudge, q.v. “Neither dolomite nor granite dicator = one who adjudicates. If used merely for
has been adjudicated a ‘m in eral/”/ “Once laws judge, it is a pomposity. But in some contexts it
are validly enacted it is not for the courts to is quite defensible— e.g.: “We find nothing in the
adjudicate upon their wisdom, their appropriate­ history or constitutional treatment o f military tri­
ness, or the necessity for their existence.” (Eng.)/ bunals that entitles them to rank along with Arti­
“Associates continued to deteriorate financially cle III courts as adjudicators o f the guilt or inno­
and in 1975, it was placed in liquidation and, in cence o f people charged with offenses for which
separate proceedings, adjudicated a bankrupt.” they can be deprived o f their life, liberty, or prop­
(Most legal texts written in BrE say that an insol­ erty.” Adjudicataire, a term from Canadian law,
vent entity is “adjudicated bankrupt,” not “adjudi­ means “a purchaser at a judicial sale” (W3). Judi­
cated a bankrupt,” as in AmE.) For other senses cator is a NEEDLESS VARIANT o f adjudicator.
of adjudicate, see a d ju d g e .
a d ju d ica tu re for adjudication. See ju d ic a ­
a d ju d ica ted has come into use as an adjective. tu re & a d ju d ica tio n .
Thus instead o f writing, “The ward was adjudi­
cated an incompetent,” some legists have begun a b ju re ( = to urge earnestly) for require is an odd
to write, “The ward is an adjudicated bankrupt.” error: “Arizona law adjures [read requires] that
2Ô a d ju r e r

statutes should be construed to effect their objects dispense (as justice or as punishment); or (2) “to
. . . .” Knapp v. Cardwell, 667 F.2d 1253, 1261 give (an oath).”
(9th Cir. 1982)./ “Assaying the quality o f defen­ The verb minister, now primarily intransitive,
dant’s acts and omissions . . . adjures [read re­ shares these last two meanings, albeit only rarely.
quires]I just such a judgment call.” Swift v. U.S., Minister is most commonly used in the sense o f
866 F.2d 507, 511 (1st Cir. 1989). See a b j u r e . attending to others’ needs, or, in religious con­
But adjure for abhor is even odder: “Most of us texts, o f administering sacraments. Persons in
don’t dislike lawyers individually; we adjure [read need are ministered to. E.g., “A testator’s favor
abhor?] them as a group.” Our Legal System’s Put expressed in a will may be won by devoted attach­
Us in a Box, Chicago Tribune, 23 Aug. 1988, at ment, self-sacrificing kindness, and ministering
C19. to him through friendship and love.”

a d ju r e r ; a d ju r o r . The -er spelling is preferred. a d m in is te r ia l. See a d m i n i s t r a t i v e .


See -ER (A).
a d m in is tr a b le ; a d m in is tr a ta b le ; a d m in is -
The first form is correct; the others are
te r a b le .
a d ju s te r ; a d ju s to r . Adjuster (= one who seeks
near-abominations, and n e e d l e s s v a r i a n t s to
to determine the amount of loss suffered when an
boot. E.g., “This court did in fact find a more
insurance claim is submitted and who attempts
administratable [read administrable] way to eval­
to settle the claim) is the preferred spelling. See
uate the property—the trial de novo.” U.S. v.
-ER (a ).
2,175.86 Acres of Land, 687 F. Supp. 1079, 1081
(E.D. Tex. 1988). See - a t a b l e .
ad litem [L. “for the suit”]. Formerly—and still
in English law— a guardian ad litem represented is an objectionable b a c k -f o r m a -
a d m in is tr a te
only an underage defendant (a next friend or t io n from administration; it should be avoided as
prochein ami representing an underage plaintiff). a NEEDLESS v a r i a n t o f administer. E.g., “By the
BrE retains this restrictive sense— e.g.: “For pur­ same reasoning, the legislature could delegate the
poses o f litigation . . . an infant can and must be power to promulgate regulations having the force
represented by an adult, who will be called 'the o f law to administrate [read administer] organs
next friend’ of an infant plaintiff, the 'guardian o f the government.” John H. Merryman, The Civil
ad litem’ o f an infant defendant . . . .” William Law Tradition 24 (1969).
Geldart, Introduction to English Law 45 (D.C.M.
Yardley ed., 9th ed. 1984). But in modern AmE, a d m in is tr a tiv e ; a d m in is te r ia l; a d m in is tr a -
underage plaintiffs (as well as defendants) are tio n a l. Administrative is the general, all-purpose
afforded guardians ad litem. term meaning “o f or pertaining to administration
In AmE, the phrase guardian ad litem is often or an administration.” Administerial and admin-
shortened to ad litem. E.g., “As you requested, I istrational are NEEDLESS VARIANTS.
called the ad litem [i.e., the guardian ad litem]
today.” See g u a r d i a n ad litem . a d m i n i s t r a t i v e l a w = the law governing the
organization and operation o f the administrative
Adminicular (= corroborative),
a d m in ic u la r (y ). branch o f government and the relations o f the
seen usu. in the phrase adminicular evidence, is administration with the legislature, the judiciary,
the standard adjectival form o f the noun admini­ and the public. “Administrative law . . . has suf­
cle, meaning “supporting or corroborative evi­ fered a long gestation and a difficult birth in
dence” (OED). In Scots law, adminicle has the our [Anglo-American] legal system. It is still a
more specific sense “a writing that tends to estab­ delicate child, with an uncertain future, but it is
lish the existence and terms of a lost document.” beginning to take the shape o f manhood. It has
been forced upon us, against much blind preju­
a d m i n i s t e r ; m i n i s t e r . Administer suffices in dice, by irresistible circumstances. It is now
most legal contexts. It is a transitive verb and, in taught in our law schools as a branch o f law [that]
its most common legal sense, means “to manage is essential to an understanding o f our whole legal
and dispose of the estate o f a deceased person, system, though with all its growing complexities
either under a will or under letters o f administra­ it is difficult to fit into a legal education.” Carleton
tion” (OED). E.g., “Generally speaking, a natural K. Allen, Law in the Making 605 (7th ed. 1964).
person has the same capacity to take, to hold, and
to administer property under a trust as he has to a d m i n i s t r a t i v e - l a w j u d g e ; h e a r i n g o f f ic e r . In
take, to hold, and to administer property for his U.S. federal law, so-called hearing officers had
own benefit.” Administer may also mean (1) “to their titles changed in 1978 to administrative-law
admission 29

judges. The U.S. Supreme Court has said that law, whereas admiralty or maritime law is a divi­
they are “functionally comparable” to U.S. Dis­ sion o f private law.
trict Judges. See A LJ. B. The admiralty. The phrase the admiralty
refers to the office o f an admiral (fr. Arabic amir-
a d m in istra tor; e x e cu to r . Both terms refer to al-bahr “chief o f the sea”) or other person en­
the personal representative who administers the trusted by the crown with command o f the seas
estate o f a decedent. An executor is named in a and o f royal ships. Because the admirals came
will, whereas an administrator (usu. someone to have jurisdiction over maritime matters, the
close to the decedent) is court appointed. There phrase by extension came to refer to that jurisdic­
are two kinds of the latter: the first is an adminis­ tion. E.g., “The theory o f the case, according to
trator cum testamento annexo (or c.t.a.)—i.e., with the summary o f argument in the Supreme Court
the will annexed; the second is an administrator report, was that Chelentis, in a common law ac­
de bonis non (or d.b.n.), an elliptical phrase for tion outside the admiralty, could recover damages
administrator de bonis non administratis ( = ad­ on common law tort principles without regard to
ministrator o f goods not administered). An ad­ the maritime law.” Grant Gilmore & Charles L.
ministrator c.t.a. is appointed if the testator does Black, Jr., The Law o f Admiralty 325 (2d ed.
not name an executor or if the named executor 1975).
for any reason does not act; an administrator
d.b.n. is appointed if a prior administrator has a d m issib le; a d m issa b le; a d m itta b le. Admissi­
begun to act but later dies or is removed. ble (the standard word) = (1) allowable; or (2)
The phrase administrator c.t.a. is often trans­ worthy o f admittance (i.e., gaining entry). The
lated administrator with the will annexed, a other two forms are n e e d l e s s v a r i a n t s to be
healthy practice that helps minimize the l a t - avoided.
i n i s m s associated with this area o f the law.
a d m ission . A. A nd admittance. The distinction
between these terms is old and useful, but it has
ad m in istra trix . PI. administratrixes, preferably a history o f being ignored. The latter term is
not administratrices. See s e x i s m (C). purely physical, as in signs that read “No admit­
tance.” E.g.,“Plaintiff instituted an action to en­
ad m iralty. A. A nd maritime law; law o f the join defendant from refusing her admittance to
sea . Blaek's states that the first two terms are its amusement park because o f her race or color,
“virtually synonymous” in referring to the law o f or for any other reason not applicable alike to
marine commerce and navigation, the transporta­ other citizens.”
tion at sea o f persons and property, and marine Admission is used in figurative and nonphysical
affairs in general. Today the words are used inter­ senses, such as: “His admission to the bar in 1948
changeably. began a career that would be long and notewor­
Yet Article III, section 2 o f the U.S. Constitution thy.” Admission is also used, however, in physical
is not redundant in providing, “The judicial power senses when rights or privileges are attached to
shall extend . . . to all Cases involving admiralty gaining entry: “The admission o f aliens into the
and maritime Jurisdiction.” One commentator United States is considerably more restricted in
notes that admiralty (dated from ca. 1327 in the this century than it was in the last.”
OED) was the better-known term when the Con­ B. A nd confession . In criminal law, a distinc­
stitution was drafted, and that maritime (OED: tion has traditionally existed between these
ca. 1550) was used in conjunction with admiralty words: an admission is a concession that an alle­
for two reasons: “(1) to exclude that jurisdiction gation or factual assertion is true without any
which the English Admiralty anciently exercised acknowledgment o f guilt with respect to the crimi­
or attempted to exercise over nonmaritime cases nal charges, whereas a confession involves an
arising ashore, and (2) to preclude a resort to acknowledgment o f guilt as well as o f the truth
those English instances in which common law o f predicate factual allegations.
courts encroached upon the jurisdiction o f admi­ C. In Civil Litigation. Although nonlawyers
ralty . . . .” Elijah Jhirad et al., 1 Benedict on tend to associate admission with criminal law (see
Admiralty § 101, at 7-3 (7th ed. 1983). B), it has broad uses in noncriminal evidentiary
Law o f the sea carries a distinct meaning: “the contexts: “An admission is a statement oral or
rules governing the relationships between states written, suggesting any inference as to any fact
regarding the use and control o f the sea and in issue or relevant fact, unfavourable to the con­
its resources.” Thomas J. Schoenbaum, Admiralty clusion contended for by the person by whom or
and Maritime Law § 2-1, at 20 (1987). Thus, the on whose behalf the statement is made.” James
law o f the sea falls within public international F. Stephen, The Law o f Evidence 23 (1876).
30 admit

adm it. A. Admit to . In the sense o f "confess,” else acting on one’s behalf. A ratification is the
admit to is generally much inferior to admit E.g., confirmation o f a contract performed or entered
“In 1978, appellant admitted to [omit to] killing into on one’s behalf by another who at the time
his wife and daughter and pleaded guilty to two assumed without authority to act as an agent.
charges of first-degree murder.” See c o n fe s s (to). These two words are near-synonyms. Novation
B. Admit of. Admit o f = to allow; to be suscepti­ has two important meanings: (1) “the substitution
ble of. E.g.,“This clause in the contract admits of o f a new contract between parties in place o f an
two interpretations.”/ “The former construction existing contract”; and (2) “the substitution of
should be adopted if the language used will admit a new party in an existing contract.” Sense (1)
o f such a construction.” predominates in American law. See n o v a tio n .
C. Admitted to the bar; called to the bar . The In corporate law, the distinctions have rele­
former is the American phrase for qualifying to vance, and are somewhat different, when a pro­
practice— e.g.: “I was admitted to the bar at Chat­ moter enters into a contract that purports to bind
tanooga.” William G. McAdoo, Crowded Years 40 a newly formed corporation, or one soon to be
(1931). The phrase called to the Bar is the British formed. If a promoter contracts with a third per­
phrase for qualifying to practice as a barrister (as son when it is understood that the corporation
distinguished from a solicitor, who is called to the will be formed, the corporation is later properly
roll). Called to the bar, q.v., appears infrequently said to adopt the contract. Ratify, in contrast, is
in AmE. the proper word when the corporation already
existed when the contract was signed. If, after a
adm ittable. See adm issa b le. corporation adopts or ratifies the contract, the
promoter is expressly relieved from liability, the
ad m ittan ce. See a d m ission (a ). adoption or ratification becomes a novation.

ad m on ish ; m on ish . See a d m o n itio n . a d o p tiv e ; a d o p te d . Adoptive = (1) related by


adoption <an adoptive son>; or (2) tending to
ad m on ish m en t. See a b olish m en t. adopt <adoptive admissions under Fed. R. Evid.
801(d)(2)(b)>. The phrase adopted father is an
ad m on ition ; m on ition . In general usage, both example o f h y p a l l a g e , to be avoided in favor of
mean “a warning; caution.” Admonition is the adoptive father. The original Latin word, adopti-
more common, less technical term: ‘W e must fol­ vus, applied both to the adopting parent and to
low the Supreme Court’s admonition that courts the adopted child.
ought not to impose constitutional restraints that Here the correct usages are observed: “If an
would inhibit the ability o f the political branches adopted child can inherit from or through his
to respond through immigration policy to chang­ natural or adoptive parents, the child of an
ing world conditions.” Admonition has the addi­ adopted child can claim through him in an appro­
tional sense “a mild reprimand.” priate case.”/ “The controlling statute provides
Monition is the more specialized legal term; it that an adopted child inherits through his adop­
may mean (1) in admiralty and civil-law contexts, tive parent.”
“a summons to appear and answer in court as a
defendant or to contempt charges”; (2) in ecclesi­
a d p r o m iss o r (= surety, bail) has two plural
astical contexts, “a formal notice from a bishop
forms in adpromissors and adpromissores, the
mandating that an offense within the clergy be
latter being unEnglish and therefore inferior. (See
corrected.” The object o f a monition is a person
p l u r a l s (A).) The dilemma o f choosing between
monished.
plural forms is easily remedied by writing sure­
ties.
a d m on itory ; a d m on ito ria l; m o n ito ry ; m o n i­
torial. The -ory forms predominate.
A D R . See a ltern a tiv e d isp u te re so lu tio n ,
ad op t. See adapt.
a d so rb . See a b sorb ,
a d op ted . See a d op tiv e .
a d u lter. See a d u lterer,
a d o p tio n ; ra tifica tion ; n o v a tio n . In contrac­
tual contexts, these three words have deceptively
similar meanings. Adoption o f a contract is ac­ a d u ltera n t. See a d u lterou s,
cepting it as one’s own, or consenting to be bound
by it, though it was entered into by someone a d u ltera te. See a d u lterou s.
advance 31

a d u l t e r a t i o n ; a d u l t e r y . Adulteration = (1) the The latter implies that


a d u lte r y ; fo r n ic a tio n .
act o f debasing, corrupting, or making impure; (2) neither party is married; if either participant is
a corrupted or debased state; or (3) something married, adultery is the proper term. See a d u l ­
corrupted or debased. Adultery = sexual inter­ te r a tio n .
course engaged in voluntarily by a married person
with someone who is not the person’s lawful a d u m b r a t e ( = [1] to foreshadow, or [2] to out­
spouse. The Latin verb adulterare, from which line) is a f o r m a l WORD that has been called an
both English words derive, encompasses all these affectation. But legal writers have considered it
senses. See a d u l t e r i n e b a s t a r d . serviceable in formal contexts. “The contours o f
the action for indemnity among tortfeasors were
a d u lte r e r ; a d u lte r ; a d u lte r e s s ; a d u lte r a ; adumbrated by the Louisiana Supreme Court.”/
Adulterer is the usual form mean­
a d u lte r a to r . “The majority’s holding and reasoning in Alvarez-
ing “one who commits adultery.” Adulter is an Gonzalez II tended to expand the concept o f func­
obsolete variant o f adulterer that also had the tional equivalency as adumbrated by the Supreme
meaning o f adulterator ( = counterfeiter). Court fourteen years earlier in Almeida-Sanchez. ”
Adulteress is t h e f e m in in e fo r m , n o w d is f a v o r e d
a d v a n c e ; a d v a n c e m e n t . Generally, the former
b e c a u se o f th e g r o w in g a w a r e n e s s o f s e x is m —
adultera, t h e t e r m f r o m th e c iv il
l ik e w is e w it h
refers to progress, the latter to promotion. Hence,
law. Adulterator, a s s u g g e s t e d a b o v e , d e r iv e s fro m one might get an occupational advancement, but
th e n o u n adulteration, a n d n o t fr o m adultery, lik e
one speaks o f the advance o f civilization. E.g.,
th e o t h e r p e r s o n a l n o u n s d is c u s s e d in t h is e n tr y .
‘T h e advancement [i.e., promotion] o f religion has
ever been held to be one o f the principal divisions
o f charitable trusts.”/ “These actions, according to
a d u l t e r i n e b a s t a r d . L eif defines this phrase as
the complaint, violated the plaintiff’s rights under
“the child o f a married woman by a man other the first and fourteenth amendments to associate
than her husband,” and comments: “As ‘adultery’ for the advancement o f their common interests in
has come to include sexual relations by a married dealings with the college.”/ “Any one o f these
man with a woman not his wife, whether she is considerations might tend toward the advance­
married or not, the term adulterine bastard has ment o f the employees.”
sometimes come to include a child born to an In senses suggesting the action o f moving up or
unmarried woman by a married man. This makes bringing forth, advancement is the proper word.
no difference, as no legal consequences presently “Considering the backlog o f cases in most jurisdic­
attach to adulterine bastardy that do not attach tions and the absence o f any further right to
to plain old bastardy.” Arthur A. Leff, The Leff advancement on the court calendar, the signifi­
Dictionary o f Law, 94 Yale L.J. 1855,1951 (1985). cance o f victory or defeat at this stage is readily
The form adulterine bastard is preferable to adul­ apparent.”/ “The advancement o f a prosecutorial­
terous bastard, the latter suggesting an unfaithful vindictiveness claim brings into conflict two anti­
spouse rather than a child produced by adultery. thetical interests.”
The very term bastard is now being displaced by The distinction gets fuzzier in financial con­
euphemistic terms in legal contexts. See b a s t a r d , texts. Although we speak (properly) o f cash ad­
ille g it im a t e c h ild & e u p h e m is m s .
vances and advances on royalties, in law advance­
ment takes on a sense similar to that which
a d u lte r o u s ; a d u lte r in e ; a d u lte r a n t; a d u lte r ­ advance has in these phrases. Leff defines ad­
a t e , adj.; a d u l t e r a t e d . Adulterous and adulterate vancement in this sense as “a gift, i.e., an expendi­
both mean “of, characterized by, or pertaining to ture not legally required, made by a parent to or
adultery,” the former term being the more com­ on behalf o f a child, with intention that the value
mon. E.g., “We think there was evidence that his thereof be deducted from the amount that the
conduct and that o f the defendant had a legiti­ child would otherwise receive if the parent died
mate tendency to prove adulterous inclination, intestate.” Arthur A. Leff, The Leff Dictionary o f
although insufficient to establish criminal conver­ Law, 94 Yale L.J. 1855, 1952 (1985). E.g., “The
sation.” Adulterate, adj., more common in Shake­ father had made numerous advancements to the
speare’s day than in ours, has been relegated to son by way o f establishing him in life with a
the status o f a n e e d l e s s v a r i a n t . college education, by setting him up in business,
Adulterine = (1) spurious; (2) illegal; or (3) born and by buying him an automobile and other items
o f adultery <adulterine bastard>. (See a d u l t e r ­ o f personal property.”
in e b a s t a r d .) Adulterant = tending to adulter­ This legal usage is too well entrenched to allow
ate. Adulterated = (1) corrupted or debased, or a precisian’s attempted “correction” o f it: ‘T his
(2) vitiated or made spurious. use led in turn to the ‘hotchpot clause’ in deeds
32 advance directive

and wills, similarly designed to ensure that an when they are called for; but i f they seem unnatu­
advance [read advancement] inter vivos to one of ral, one can easily rephrase the sentence, e.g., in
the class entitled to share in the estate should be a silly manner. Words such as timely and stately,
brought to account.” however, act as both adjectives and adverbs.
In any event, unusual adverbs are to be used
a d v a n c e d ir e c tiv e . See l i v i n g w i ll . sparingly. Some writers display an overfondness
for them. One judicial opinion, for example, con­
advancee is an inaesthetic and unnecessary n e ­ tains the adverbs corollarily, consideredly, and
E.g., “The Code does not state in detail
o l o g is m . the spurious widespreadedly, q.v. See United
what the writing must contain, although as ap­ Medical Labs. v. Columbia Broadcasting Sys.,
plied to a writing by the intestate, a statement of Inc., 404 F.2d 706 (9th Cir. 1968).
an ‘intent to advance' would seem necessary and C. A djectives o r A dverbs A fter Linking Verbs.
presumably also a description o f the property and English contains a number o f linking verbs (or
the name o f the advancee [read recipient o f the copulas) apart from to be, for example, appear,
advancement].*9See -EE (a ). seem, become, look, smell, taste. These verbs con­
nect a descriptive word with the subject; hence
a d v a n c e m e n t. See a d v a n c e . the descriptive word following the linking verb
describes the subject and not the verb. We say He
a d v a n ce sh e et. See s l i p o p i n i o n . turned professional, not He turned professionally.
Legal writers frequently fall into error when
a d v e n t i t i o u s ; a d v e n t i t i a l . Adventitious means they use linking verbs. One must analyze the
“added extrinsically” or “accidental.” It was for­ sentence, rather than memorize a list o f common
merly a legal term meaning “befalling a person linking verbs, much as this may help. Often an
by fortune,” and was opposed to profectitious ( = unexpected verb o f this kind appears—e.g.: “No
deriving from a parent or ancestor). These terms other testimonial privilege sweeps so broadly
are now archaic except in the civil law. Adventi­ [read sweeps so broad].** The writer is not describ­
tious is used today, however, in nonlegal senses— ing a manner o f sweeping, but instead is saying
e.g.: “Her obtaining a law degree had the adventi­ that the privilege is broad.
tious effect o f nearly doubling her starting salary D. Redundantly Form ed Adverbs. Some ad­
when she entered the business world.” verbial forms are incorrectly formed by adding
Adventitial is a medical term that means “o f or -.ly to words that already function as adverbs. See
pertaining to a membrane that covers an organ.” HYPERCORRECTION ( d ), d o u b tle ss(ly ), m u ch (ly ),
o v e r (ly ) & th u s ( b ).
A. Placem ent o f
A d v e r b s , P r o b l e m s w it h . E. No Hyphens with A dverbs E nding in -/y.
Adverbs. A fairly well-known manual on legal See PHRASAL ADJECTIVES (A).
style long cautioned its readers to avoid splitting
verb phrases with adverbs— e.g.: “He had quickly a d v ersa ry , adj.; a d v e rsa ria l; a d v e rsa rio u s;
gone to the scene o f the crime,” recommending a d v e rsa tiv e ; a d v e rsiv e ; a d v erse. Adversary,
instead, “He quickly had gone to the scene o f the which can act as both noun and adjective, is the
crime.” This nonsense apparently derives from a legal term used in phrases such as an adversary
phobia o f anything resembling a SPLIT i n f i n i t i v e . relationship. E.g., “The need to develop all rele­
Here a phobic writer fell into the awkward phras­ vant facts in the adversary system is both funda­
ing: “The task o f questioning veniremen and eval­ mental and comprehensive.”
uating their answers is more difficult than any­ Adversarial is not listed in most dictionaries,
thing that heretofore has been attempted [read though it is fairly common as a near-equivalent
than anything that has heretofore been attempted o f the adjective adversary. E.g., “Rarely does this
or, better yet, than anything that has been at­ type o f adversarial [read adversary] relationship
tempted before] in the process o f jury selection.” exist between school authorities and pupils.” New
See HYPERCORRECTION ( h ) & SUPERSTITIONS (C). Jersey v. T.L.O., 469 U.S. 325,349-50 (1985) (Pow­
In fact, as all reputable authorities agree, fre­ ell, J., concurring)./ “The evolution o f this area o f
quently the most proper and natural placement the law has been and will remain a product o f the
of an adverb is in the midst o f the verb phrase. interaction o f two adversarial forces— prosecutors
E.g., “The corporation was virtually bankrupted who seek to exclude all scrupled jurors, and de­
by the massive tort liability.” fense counsel eager to retain them.” In fact, adver­
B. Aw kw ard Adverbs. Adjectives ending in -ly sarial and adversary have begun to undergo d if ­
often make slightly cumbersome adverbs, e.g., f e r e n t i a t i o n : adversarial connotes animosity

sillily, friendlily, uglily, and so on. One need not <adversarial conferences:», whereas adversary is
be timid in writing or pronouncing such adverbs a neutral, clinical word.
advocatus diaboli 33

Adversarious ( = hostile), though listed in the are generally unfamiliar. It means “to announce;
OED, has dropped from the language. Adversative give formal notice of.” E.g., “The letter o f credit
is a term o f grammar and logic meaning “express­ was advised through the Bank o f America in
ing an antithesis or opposition” <adversative con­ Quito, Ecuador.” In such contexts, advise has very
ju n ction s Adversive is an anatomical term for nearly taken on the meaning “to negotiate.”
“opposite.” See ad v erse. B. F or tell o r say. This is a pomposity to be
avoided. “7 was advised by him [read He told
a d v ersa ry p r o c e d u r e . See a ccu sa to ria l. me] that the deadline had not yet elapsed.”/ “The
dispatcher returned their call in several minutes
a d v erse; averse. Both may take the preposition but advised [read told] them that the computer
to; adverse also takes from. To be averse to some­ had broken down, and that he could not check
thing is to have feelings against it. To be adverse the registration.”
to something—the phrase is usually used o f C. A nd instruct In G.B., barristers are said
things and not o f people— is to be turned in oppo­ to advise solicitors (or clients through solicitors),
sition against it. whereas solicitors instruct barristers. See a t t o r ­
Adverse is used as an adjective in the phrase n e y (a ).
adverse party (= opposing party) in reference to
persons, but seldom elsewhere. In reference to a d v i s e d l y means, not “intentionally,” but “after
circumstances, adverse means “potentially afflic­ careful consideration.”
tive or calamitous,” but most great triumphs come
in the face o f adverse conditions. a d v i c e . Judges frequently take
a d v is e m e n t;
Adversely) to for against is a slight pomposity. matters under advisement, meaning that they will
E.g., “The court rendered a judgment adverse to consider and deliberate on a particular question
[read against] the plaintiff.”/ “Most o f the ques­ before the court. E.g., “Punishment for contempt
tions raised by this appeal have been disposed of is hereby taken under advisement by the court.”
adversely to [read against] the appellants in the Advisement is best not used outside the legal
companion case decided this day.” idiom for advice or advising <the advising o f
entry-level officers>.
ad v ersiv e. See a d v ersa ry .
a d v i s e r ; a d v i s o r . The -er spelling is sanctioned
To advert to something is to refer
a d v e r t; a v e r t. over the -or spelling in the dictionaries. Note,
to it, to bring it up in speech or writing. It is a however, that the adjectival form is advisory. See
word best reserved for contexts that are especially -ER (A).
formal, except in BrE, where it is more common.
“Finally, I must advert to the pain suffered and The latter is a NEEDLESS
a d v is o r y ; a d v is a to r y .
to be suffered by the appellant as a result o f the o f advisory, which commonly appears
v a r ia n t

car accident.” (Eng.) (See a l l u d e (a ).) The word in phrases such as advisory opinion, advisory
should not be used in its etymological sense “to capacity, and advisory council.
turn to,” as here: “Before adverting to [read Before
turning to] the factual setting, we briefly outline a d v o c a c y ; a d v o c a t i o n . The first is the art or
the legal context in which the issue o f fraudulent work o f an advocate; the second was formerly the
transfer arises.” term in Scots law for an appellate court’s review
To avert is to ward off, turn away, or avoid. o f lower-court decisions. Advocation should not be
Thus a national leader who has failed to avert a used, although occasionally it is, where advocacy
political scandal might avert his or her eyes. E.g., would suffice.
“The rule averts potential diplomatic embar­
rassment from the courts o f one sovereign sitting a d v o c a te ; a d v o c a to r . The latter is a n eed less

in judgment over the public acts o f another.” See VARIANT.


avert.
a d v o c a tio n . See a d v o c a c y .
a d vertise; a d v ertize. The former spelling is
a d v o c a t o r y = o f or pertaining to an advocate.
standard (AmE, BrE).
Hence it corresponds to advocacy, q.v., not advo­
a d vice. See a d visem en t. cation.

a d visatory. See a d v iso ry . advocatus diaboli , the Latin term for DeviVs
advocate, is an example o f highfalutin humor and
advise. A. In Com m ercial Contexts. Here ad­ should be used cautiously if at all. Its opposite is
vise takes on a meaning with which nonlawyers advocatus dei.
34 advowson

a d v ow son . This archaic legal term, though sug­ a ffe cte d , adj.; a ffe ctiv e ; a ffe ctio n a l; a ffe c tio n ­
gestive of a type o f person, refers to a property ate. Affected, as an adjective, means “assumed
right in an ecclesiastical office. The right is trans­ artificially; pretended” ( OED); affective = emo­
ferable and inheritable in perpetuity. tional; affectional = pertaining to affection; and
affectionate = loving, fond.
AE is a remnant o f the Latin digraph, formerly Just as affect, q.v., is sometimes misused for
ligatured (ae), appearing in such words as aegis, effect, affective is sometimes wrongly placed where
aesthetic, and praetor. In most Latinate words in effective belongs: ‘T he parties to the contract
which this digraph once appeared, the initial would have had to stipulate an affective [read
vowel has been dropped. One sees this tendency effective] date.” We might prefer to call this a
still at work in (a)esthetic, (a)eon, and (a)ether. typographical error rather than an ignorant
Compare the retention o f the digraphs in BrE bungle.
(e.g., anaesthetic and foetus) with the shortened
forms anesthetic and fetus, which are prevalent a ffe c tio n ; a ffe cta tio n . The former means “love,
in AmE. See p r(a )ed ia l. fondness”; the latter, “pretentious, artificial be­
havior.” In Elizabethan English, these words were
a eg is was originally a mythological term mean­ used more or less interchangeably, but now each
ing “protective shield” or “defensive armor.” The has acquired its own distinct sense—which is good
word is now used exclusively in figurative senses. for the language.
One must be careful not to confuse aegis with Affectation doctrine is sometimes seen for af­
auspices (= sponsorship; support). E.g., “Gener­ fects doctrine in the context o f American constitu­
ally, it is required that what has been done regu­ tional law, specifically o f the commerce clause.
larly under the aegis [correct] o f the law will be E.g., “For the essence o f the affectation doctrine
considered valid and will remain so even after a [read “affects” doctrine or effects doctrine] was
change in legislation.” Idiom requires under the that the exact location o f this line made no differ­
aegis, not with the aegis. ence, if the forbidden effects flowed across it to the
injury o f interstate commerce . . . .” Mandeville
Island Farms, Inc. v. American Crystal Sugar Co.,
a esth etic; esth etic. Although the Merriam-
334 U.S. 219, 232 (1948). Affects is the correct
Webster dictionaries have long recorded esthetic
word because the test is whether the activity
as the primary form in AmE, the form aesthetic
“affects” commerce. Because the noun correspond­
remains more common in AmE and BrE alike.
ing to affect (= to influence) is effect— not affecta­
tion—a better phrasing would be effects doctrine
a etiolog y . See e tiolog y .
(i.e., “that has effects”), but it has not gained
currency. See a ffe c t & e ffe ct.
a ffect; e ffe ct. In ordinary usage, affect is always
a verb; it means “to influence; to have an effect a ffe ctio n a l; a ffe ctio n a te . See a ffe cte d .
on.” Effect, as suggested by its use in that defini­
tion, is a noun meaning “result” or “consequence.” a ffe ctiv e . See a ffe cte d .
To affect something is to have an effect on it. (See
im p act.) As a verb, effect means “to bring about; a ffe e r; a m erce. Both words mean generally “to
produce” Cthey could not effect a coup>. fine.” Specifically, affeer = to fix the amount o f [a
In the following sentences, affect is wrongly fine] (W3). The variant spellings affeere and affere
used for the noun effect: “ [T]he laws o f New Jer­ should be avoided. Amerce = to fine arbitrarily
sey shall control the affect [read effect] o f the (iOED), meaning that the amount o f the fine is
agreement.” Developers Small Business Inv. Corp. not prescribed by statute, but rather is lodged in
v. Hoeckle, 395 F.2d 80,84 (9th Cir. 1968) (quoting the discretion of the court. Etymologically speak­
a contract)./ “The participants must be afforded ing, when being amerced, one is “at the mercy” of
maximal protection against harmful side affects the court.
[read effects].” The nominal forms are affeerment and amerce­
Likewise, effect is sometimes misused for affect. ment— amerciament having gone the way that all
See effect. NEEDLESS v a r i a n t s should. Amerce has no re­
corded personal nominal form. Affeeror and af-
affecta b le; a ffectib le. The former spelling is feerer are competing forms, the -or spelling per­
preferred. See - a b l e (a ). haps the better one because it is more distinctly
pronounceable.
A f f e c t a t io n , L it e r a r y . See purple prose &
LITERARY ALLUSION (B). a ffia n ced . See affined.
affirmant 35

affian t Id-fi-dntl, a term that began as an Ameri­ Affinity takes the preposition between or with,
canism in the mid-19th century, ordinarily means not to or /or.
“one who gives an affidavit.” More broadly, and
less accurately, it refers to any deponent. See affirm . Usually only judgments are affirmed by
fu rth e r a f f i a nt . . . . appellate courts; cases are remanded; and opin­
ions or decisions are approved or disapproved.
a ffid a v it [L. “he swore”] is ordinarily a noun (See JUDGMENTS, a p p e l l a t e - c o u r t .) The practice
referring to a voluntary declaration o f facts writ­ o f writing “The trial court was affirmed” is infor­
ten down and sworn to by the declarant before an mally an acceptable ellipsis for “The trial court’s
officer authorized to administer oaths. judgment was affirmed,” but such phrasing
Occasionally, however, lawyers have used the should not appear in formal legal writing. E.g.,
word as a verb. But a better choice is invariably “Had the trial judge followed his initial decision
available— e.g.: “This counsel later testified that and overruled the motion for new trial without
the reason for filing the Notice o f Change o f Judge expressing any desire for leniency, he would be
was ‘personal to us and the plaintiff, [and that] affirmed [read his judgment would be affirmed]”
we affidavited or noticed [read filed an affidavit
and notice of] that change o f judge, on Judge a ffirm a n ce; a ffirm a tion . There is, unfortu­
Patterson . . . .’ ” Hickox v. Superior Court, 505 nately, some overlap o f these terms. Yet a useful
P.2d 1086, 1087 (Ariz. Ct. App. 1973) (quoting rule might be formulated: When an appellate
counsel)./ “Noteworthily missing from this record, court affirms a lower court’s judgment, there is
however, is any affidavited [read sworn] assertion an affirmance.
by a representative o f the banks . . . .” In re In all other contexts, affirmation is the prefera­
Drexel Burnham Lambert Group Inc., 113 B.R. ble term. E.g., “Finally, we refer to the re­
830, 840 (S.D.N.Y. 1990). statement and affirmation o f the doctrine in Hood
The phonetic misspelling affidavid is not un­ v. Francis.” In the following sentences, affirmance
common. is used where affirmation would be better: “The
For a redundancy involving this word, see long-established recognition in Massachusetts o f
sw o rn affid avit. the doctrine o f independent significance makes
unnecessary statutory affirmance [read affirma­
tion] o f its application to pour-over trusts.”/ “The
a ffilia tion , in BrE, refers to a father’s mainte­
court held that the instrument was a conveyance
nance o f illegitimate children. E.g., “The mother
and a recognition, acceptance, and affirmance
has the right to the custody o f her illegitimate
[read affirmation] o f the devise, and not a renunci­
children, and is bound to maintain them. She may
ation.”
obtain an affiliation order against the father from
Here the opposite error appears, affirmation for
the local police court, either before the child is
affirmance: “After the final decision in Finney and
bom or within twelve months after the birth
the appellate court’s affirmation [read affirmance]
. . . .’’ Anon., The Home Counsellor 172 ([London:
o f the judgment, the district court determined
Odhams Press] ca. 1940-1945)./ “[T]here is the
that the petitioner was not entitled to any relief
rule [that] requires the testimony o f the plaintiff
other than injunctive relief already granted to
in an action for breach o f promise o f marriage,
class members.” Cf. d isa ffirm a tion .
and the applicant in an affiliation case, to be
Quite apart from its ordinary meaning, affir­
corroborated by independent evidence.” Edward
mation has a specialized legal sense: “a formal
Jenks, The Book o f English Law 77 (P.B. Fairest
and solemn declaration, having the same weight
ed., 6th ed. 1967).
and invested with the same responsibilities as an
oath, by one who conscientiously declines to take
affin ed; a ffia n ced . Affined = closely related; an oath” ( OED). Many American jurisdictions now
connected. Archaically, affined means “obligated.” have statutes permitting affirmations under cir­
Affianced = engaged, betrothed. cumstances in which obtaining a notary public’s
acknowledgment would be inconvenient. The per­
affin ity; co n sa n g u in ity . The former refers to son affirming is termed an affirmant See a f­
relationship by marriage, the latter to relation­ firm a n t & oa th .
ship by blood. The distinction is usually carefully
observed in legal writing. E.g., “The statutes pre­ affirm an t; d e p o n e n t. One who testifies by depo­
scribe the classes o f persons entitled to appoint­ sition and swears to the truth o f the testimony is
ment as administrator and indicate an order o f termed a deponent. One who, instead o f swearing
precedence based on kinship by consanguinity or or taking an oath, affirms or solemnly states that
affinity with the decedent.” the testimony is true, is termed an affirmant.
36 affirmation

affirm ation . See affirm a n ce. a fflu en t and affluence are accented on the first
rather than the second syllable.
affirm ative a ction . The phrase is sometimes
used generically to denote “a positive step taken,” a ffo rd . See a c c o r d .
as well as more specifically to denote “an attempt
to reverse or mitigate past racial discrimination.” a ffra n ch ise . See fra n ch ise .
Compare 15 U.S.C. § 2622(2)(b) (1988) (“the Sec-
retary shall order . . . the person who committed a ffra y; fra y . Both terms, though somewhat
such violation to take affirmative action to abate quaint, are still used in legal opinions. Affray is
the violation”) with 29 U.S.C. § 791(b) (1988) classically defined as “unpremeditated fighting in
(“each departm ent. . . s h a ll. . . su b m it. . . an a public place that tends to disturb the public
affirmative action program for the hiring, place­ peace.” E.g., “To some extent, crimes such as riot,
ment and advancement o f individuals with handi­ violent disorder, and affray appear as inchoate
caps”). offences o f violence or even actual offences o f
violence.” Andrew Ashworth, Principles o f Crimi­
affirm ative, in th e; n eg a tiv e, in th e. These nal Law 35 (1991).
phrases have been criticized as jargonistic and There is some dispute over whether an affray
pompous. (See, e.g., Quiller-Couch's statement must be in public. From the late 18th century
quoted under JARGON ( b ).) They appear frequently onward, legal writers discussing affray said— mis­
in legal writing and in other types o f formal prose. takenly, it seems—that the fighting must occur
E.g., “The sole question raised on this appeal is in public. The germ o f the error began with Black-
whether the Texas rule that a defendant must stone's definition o f affray in 1769 as “the fighting
prove duress by a preponderance o f the evidence o f two or more persons in some public place, to
violates the due process clause o f the fourteenth the terror o f His Majesty's subjects: for, if the
amendment; answering in the negative, we fighting be in private, it is no affray but an as­
affirm.”/ 'T h e Sixth Circuit, when confronted with sault.” 4 Blackstone, Commentaries 145 (1769).
the identical question, answered in the affirmative In 1822, the first edition o f Archbold's Pleading
and permitted the use o f this same deposition and Evidence in Criminal Cases (p. 337) asserted,
against asbestos companies not represented in without support, that the allegation “in a public
DeRocco.” street or highway” should be charged in the in­
This phrasing is probably better than the clos­ dictment and proved. But the House o f Lords
est alternative: “Reversing the judgment o f the has held that Archbold incorrectly grafted this
bankruptcy court, we answer both questions pre­ requirement onto the law o f affray—that an affray
sented 'N o /” In the formal context o f judicial need not be in a public place. See Button v. Direc­
opinions, in the affirmative and in the negative tor o f Public Prosecutions, [1966] A.C. 591, 608,
should be allowed to exist peacefully. But when 627 (H.L.).
these phrases are used o f mundane questions in The idea that an affray must be public still
mundane situations, they look foolish. holds sway, however, in most American jurisdic­
tions. Thus, a leading criminal-law text states:
affirm ative p reg n an t. See n e g a tiv e p reg n a n t. “At common law an affray is a mutual fight in a
public place to the terror or alarm o f the people.”
affixtu re; a ffixation ; a ffix ion . Affixture - the Rollin M. Perkins & Ronald N. Boyce, Criminal
state of being affixed; affixation = the act o f Law 479 (3d ed. 1982).
affixing or the use o f an affix. Affixion — affixation
or affixture, but it adds nothing to either; it should a ffre ig h te r. See ch a rte re r.
be avoided as a n e e d l e s s v a r i a n t .
a ffreig h tm en t; a ffretem en t. Meaning “the hir­
afflatus; affiation ; inflatus. For the sense “in­ ing o f a ship to carry cargo,” affreightment is
spiration,” or “supernatural impulse,” afflatus is standard in common-law countries and in Louisi­
the standard term. E.g., “The decisions under ana (a civil-law jurisdiction). E.g., “Owners will
the revenue acts have little weight as against be more likely to permit their charterers to enter
legislation under the afflatus o f the Eighteenth freely into contracts o f affreightment if owners
Amendment.” (Holmes, J.) Inflatus and affiation know that no 'secret liens' will arise from obscure
are secondary variants. The plural o f afflatus is provisions in subagreements.” (La.) Affretement is
afflatuses, not afflati. See PLURALS (A). the spelling used in French civil law.

afflict. See inflict. affront. See effrontery.


against conscience 37

a f i c i o n a d o is often misspelled afficionado, as in effectively—e.g.: “If an act is not a civil wrong, it


Butts v. National Collegiate Athletic Ass’n, 751 cannot, a fortiori, be criminal.” (Eng.)
F.2d 609, 613 (3d Cir. 1984). The emphatic form o f the term is a multo forti­
ori (= by far the stronger reason).
a fo r e( = before) is a dead a r c h a i s m except in Legal writers sometimes use a fortiori as an
the phrases aforesaid and aforementioned. Words adjective, a usage to be resisted—e.g.: “We have
like aforedescribed need not be rescued from obliv­ set forth the other two lines o f possible proof
ion.. See a b o v e ( b ), a f o r e s a i d & a b o v e - m e n ­ only to suggest the a fortiori [read even stronger]
tio n e d . position presented in the instant case.”/ “Clearly,
if laws depend so heavily on public acquiescence,
a f o r e s a i d ; a f o r e m e n t i o n e d . These l e g a l is m s the case o f conventions is an a fortiori [read even
have little or no justification in modern writing. more compelling] one.” P.S. Atiyah, Law and Mod­
They often appear in spoofs and complaints— e.g.: ern Society 59 (1983).
"Individual laws . . . may be complicated and
forbiddingly so, with the endless paragraphs, a f t e r - a c q u i r e d = obtained sifter a certain (speci­
their aforesaids and provided howevers” Lon L. fied) time. The term is ordinarily placed before
Fuller, Anatomy o f the Law 14-15 (1968). the noun it modifies: “The agreement to hold the
Aforesaid or aforementioned is unnecessary proceeds o f the sale in trust is, in effect, an
when the reference to what has already been agreement to hold after-acquired personal prop­
named is clear. E.g., “Plaintiff, in the normal erty in trust.”
routine o f his employment, was exposed to various
toxic materials and irritants. Exposure to the adj., = bom after (a certain event,
a fte rb o m ,
aforementioned [read to these] substances and ir­ such as the father’s death or the birth o f a sibling)
ritants caused him to contract pneumoconiosis, <an afterbom child>. The word is also used as a
and finally he died o f lung cancer caused by his noun in pretermitted-child statutes; it means “a
occupational exposure to the aforementioned child bom after the execution o f a will.”
[read to these] toxic substances.” See a b o v e -
m e n tio n e d . a fte r e ffe c t should be spelled as one word.
Worse yet, aforesaid is a word o f imprecision: it
sometimes refers to what immediately preceded, a fte r h a v in g [ +p a s t p a r t i c i p l e ] . This con­
to what came just before that, or to everything struction is ordinarily incorrect for after [ + pres­
that has come before. When the reference is in­ ent participle]— e.g.: “After having passed [read
tended to be vague, it would be better to use After passing] a general educational test and
abovestated or some other equivalent that is less given evidence o f good character, the candidate
stilted and legalistic. See f o r b i d d e n w o r d s (A) & must procure himself to be admitted as a student
s a i d ( e ). at one o f the four Inns o f Court above named.”
The word aforesaid is, o f course, a past-particip­ Edward Jenks, The Book o f English Law 66 (P.B.
ial combination {afore + said) that is almost Fairest ed., 6th ed. 1967)./ “The flurry o f laches
always used adjectivally <aforesaid land>. Occa­ litigation, after having gone [read after going] on
sionally, however, it appears as the past participle for the better part o f ten years, began to subside
o f a verb: “The association secretly and with in­ after the mid-1960’s.” Grant Gilmore & Charles
tent to deprive appellant o f the opportunity of L. Black, Jr., The Law o f Admiralty 774 (2d ed.
purchasing said property, and with the intent to 1975)./ uAfter having survived [read After surviv­
profit through the information obtained as afore- ing or Having survived] eight years o f attacks
said, immediately began to negotiate with the during the Reagan administration, the Legal Ser­
owner for the purchase o f said property.” The vices Corp. . . . still faces challenges.” Nat’l L.J.,
literary quality o f that sentence speaks for quality 14 Oct. 1991, at 1.
o f the participial use o f aforesaid. Cf. s a i d (A ).
a fte r w a r d (s ). See - w a r d ( s ).
( = thought o f in advance) is now
a fo r e th o u g h t
used only in the phrase malice aforethought. It a g a in s t. See c o n t r a , v e r s u s & a s a g a i n s t .
is essentially synonymous with premeditated or
prepense. See m a l i c e a f o r e t h o u g h t , p o s t p o s i ­ a g a i n s t c o n s c i e n c e is a primarily BrE equiva­
t iv e a d j e c t i v e s , p r e p e n s e & w illfu ln e s s . lent o f unconscionable, q.v. “It is clear that any
civilized system o f law is bound to provide reme­
a f o r t i o r i /ah-fohr-shee-ohr-ee/ is an argumenta­ dies for cases o f what has been called unjust
tive term meaning “by even greater force o f logic; enrichment, that is, to prevent a man from re­
so much the more.” The phrase is often used taining the money o f or some benefit derived from
38 against nature

another which it is against conscience that he ticular context. In the following discussion, the
should keep.” (Eng.) numerical ages listed are established by statute
and may vary from jurisdiction to jurisdiction.
a g a in s t n a tu r e . See EUPHEMISMS & u n n a t u r a l . Age o f capacity, usu. 18, denotes the age when
one is legally capable o f agreeing to a contract,
a g a i n s t t h e p e a c e . This phrase was traditionally executing a will, maintaining a lawsuit, and the
used in a charging instrument for a misdemeanor, like.
just as feloniously (q.v.) was used in a felony Age o f majority, usu. 18, includes the rights
indictment. Sometimes the phrase is elaborated attained at the age o f capacity, but is broader
to against the peace of the king (or against the because it also includes civil and political rights,
king*s peace) or against the peace and dignity of esp. the right to vote. See m a j o r i t y ( d ).
the state. Age o f consent, usu. 16, denotes the age when
one is legally capable o f agreeing to marriage
a g (e )in g . See mute e . (without parental consent) or to sexual inter­
course so that, regarding the latter, intercourse
a g e n c y , as a TERM OF ART, refers to any relation­ with someone under the age o f consent is statu­
ship in which one person (called an agent) acts tory rape. See s t a t u t o r y r a p e .
for another (called a principal) in commercial or Age o f reason denotes the age when one is able
business transactions. Nonlawyers are largely un­ to distinguish right from wrong and is thus legally
familiar with agency used in this way, although capable o f committing a crime or tort. It varies
they understand the personal noun agent as from 7 to 14: 7 years is usu. the age below which
meaning “representative.” a child is conclusively presumed not to have com­
mitted a crime or tort, while 14 years is usu.
agenda is (1) the plural form o f the Latin noun the age below which a rebuttable presumption
agendum, which means “something to be done” applies. For related terms, see c h i l d , i n f a n t , m i ­
(another, less proper plural o f agendum being n o r i t y (a ) & n o n a g e .
agendums); and, more commonly, (2) a singular
noun meaning “a list o f things to be done” or “a a g g r a n d iz e ; e n g r a n d iz e ; in g r a n d iz e . The last
program.” The plural o f agenda in sense (2) is two are n e e d l e s s v a r ia n t s o f the first.
agendas; decrying agendas as a double plural is
bootless.
for annoy or irritate, though docu­
a g g ra v a te
Yet all careful writers should avoid the errone­
mented as existing since the 1600s, has never
ous form agendae, the result o f HYPERCORREC­
gained the cachet o f stylists and should be avoided
TION—e.g.: “Mr. Douglas . . . prepared agendae
in formal writing. Properly, aggravate means “to
[read agendas] for meetings with the trustee and
make worse; exacerbate.” This meaning obtains
his attorneys . . . .” In re New England Fish Co.,
in many legal phrases, such as aggravated as­
33 B.R. 413, 416 (Bankr. W.D. Wash. 1983).
sault. In its proper sense, aggravate is opposed to
mitigate or extenuate—e.g.: “Here the indignity
“The words agent and servant
a g e n t; se rv a n t.
was o f an aggravated sort; it occurred at a public
are not synonyms; nevertheless they both relate
place and in the presence o f a large number of
to voluntary action under employment.” Lemmon
people.”/ “It is clear that a state cannot explicitly
v. State, 3 A.2d 299, 300 (N.J. 1938). An agent is a
make the murder o f a white victim an aggravating
business representative who handles contractual
circumstance in capital sentencing.”
arrangements between the principal and third
Even the brilliant Justice Holmes nodded once,
persons. A servant, by contrast, is an employee
using aggravate for irritate in a letter to Sir Fred­
whose function is to render service, not to create
erick Pollock in 1895: “ [0]ur two countries aggra­
contractual obligations. In the modern legal id­
vate each other from time to time. . . .” 1 Holmes-
iom, servant has been almost entirely displaced
Pollock Letters 66 (1941).
by employee. See a g e n c y & e m p l o y e r a n d e m ­
p lo y e e .
a g g ra v a te d d a m a g e s. See p u n i t i v e d a m a g e s .
A gent N o un s, False. See -e r (b >.
a g g r e g a b l e is the preferred form, not aggregata-
a g e o f c a p a c it y ; a g e o f c o n s e n t ; a g e o f m a jo r ­ ble— e.g.: “ [T]he Commission notified defendants
it y ; a g e o f r e a s o n . All these terms share the that their trading activities were aggregatable
general sense “the age at which a person is legally [read aggregable].” Commodity Futures Trading
capable (of doing something).” But, over time, Comm’n v. Hunt, 591 F.2d 1211, 1227 n.5 (7th
each term has assumed a specific sense in a par­ Cir. 1979). See -a t a b l e .
agree 39

a g greg a te, n.; a g g re g a tio n . Both may mean “a grievements [read grievances] centers on the dete­
mass o f discrete things or individuals taken as rioration o f a bloody footprint, which he was no
a whole,” aggregate being the more usual term. longer able to distinguish adequately at trial.”
Aggregate stresses the notion “taken as a whole” U.S. v. MacDonald, 632 F.2d 258, 270 (4th Cir.
(as in the phrase in the aggregate), and aggrega­ 1980).
tion more “a mass o f discrete things.” Here the
former term is used: “The price, while o f trifling agn ate; co g n a te . In Roman law, an agnate is a
moment to each reader o f the newspaper, is suffi­ relative through one’s father; a cognate is any
cient in the aggregate to afford compensation for relative, through one’s father or mother. The cor­
the cost o f gathering and distributing the news.” responding adjectives are agnatic and cognatic.
For “the act o f aggregating,” only aggregation
will suffice. E.g., “There should not be aggregation a g ra tia . See ex gratia.
o f two or more obtainings o f credit for the purpose
o f one offense.”/ “It is a mass that has grown by agréation; agrém ent. The first is a process, and
aggregation, with very little intervention from the second is the usual result o f the process.
legislation.” Agréation = a diplomatic procedure by which
a receiving state makes a prior determination
a g g reg a te, vb. A. Sense. Aggregate = to bring whether a proposed envoy will be acceptable;
together a mass o f discrete things or individuals agrément = the approval o f a diplomatic repre­
into a whole. The verb is sometimes misused for sentative by the receiving state.
total in reference to sums: “Before us, appellant
argues that the fines imposed, aggregating almost a gree. A. A nd concur. In G.B., appellate judges
$15,000 [read totaling almost $15,000 or in the who join in an opinion are said to agree, whereas
aggregate almost $15,000] were excessive. in the U.S. they concur.
B. Aggregate together. This phrase is a r e d u n ­ B. Agreed to and agreed upon. These are
d a n c y — e.g.: “For the purpose o f establishing the slightly awkward as p h r a s a l a d j e c t i v e s , but
rate at which capital transfer tax is payable, all when used before a noun, they should be hyphen­
property (with certain exceptions) passing on the ated. E.g., “This clause refers to our previously
death is aggregated together [read aggregated].” agreed-to verbal contract.” (See v erb a ls.) / “To
William Geldart, Introduction to English Law 90 the extent that the nonoccurrence o f a condition
(D.C.M. Yardley ed., 9th ed. 1984). would cause disproportionate forfeiture, a court
may excuse the nonoccurrence o f that condition
a g g riev a n ce. See g rie v a n ce . unless its occurrence was a material part o f the
agreed-upon exchange.”
ag g riev a n t. See g riev a n t. In a few phrases, agreed suffices as an idiomatic
ellipsis for agreed-upon, as in agreed verdict, q.v.,
a g g rie v e (= to bring grief to; to treat unfairly) and agreed judgment. Generally, though, the en­
is now used almost exclusively in legal contexts, tire phrase should appear: “As shown by the
and almost always in the form o f a past participle. charge in the agreed [read agreed-upon] state­
E.g., “An aggrieved spouse is not compelled to ment, Jan, at the time o f the distribution, is the
seek the courts o f another state for the protection only child o f an only child o f a child o f Hastings.”/
o f her marital status.”/ “Suppression o f the prod­ “It cannot be said as a matter o f law that their
uct o f a Fourth Amendment violation can be suc­ delay for an hour and a quarter was reasonable;
cessfully urged only by those whose rights have the facts as to this are not agreed [read agreed
been violated by the search itself, not by those upon].”
who are aggrieved solely by the introduction of A similar ellipsis occurs with agreed to and
damaging evidence.” agreed on, seemingly on the mistaken notion that
one should avoid ending a sentence with a prepo­
a g g riev em en t ( = an act or instance o f causing sition— e.g.: “[I]n America there is a famous deci­
grief to a person) is illustrated in the OED with sion holding that a negotiating party who strings
but one citation, but it appears with some fre­ another party along with prolonged negotiations,
quency in law—e.g.: “[The exceptions do not] of­ constantly changing his terms, may be held liable
fer! 1 reason for aggrievement, and signify nothing to the other party for actual loss suffered if no
except general dissatisfaction with the entire re­ contract eventually is agreed [read agreed to].”
port.” Kowalsky v. American Employers Ins. Co., P.S. Atiyah, An Introduction to the Law o f Con­
90 F.2d 476, 480 (6th Cir. 1937). tract 62 (3d ed. 1981)./ “However, Mr Dlouhy said
The word should not be used as a variant o f the essentials had been agreed [read agreed on].”
grievance—e.g.: “Another o f MacDonald’s ag- Leslie Colitt & John Lloyd, Comecon Takes First
40 agree and covenant

Steps to Dismantle Itself, Fin. Times, 28 March appearing only in contexts involving criminal in­
1990, at 1. See PREPOSITIONS (C). tent.
Aid and abet is sometimes called a TERM OF
ag ree a n d cov en a n t. See co v e n a n t a n d a g ree. ART, but in fact it is, in the words o f the chief
American and British criminal-law commenta­
a g reed v e r d ic t (BrE) = consent decree (AmE). tors, “unnecessarily verbose” and “antiquated.”
See Rollin M. Perkins & Ronald N. Boyce, Crimi­
agreem en t; co n tra ct. The former may refer ei­ nal Law 724-25 (3d ed. 1982); Glanville Williams,
ther to an informal arrangement with no consid­ Textbook o f Criminal Law 288 (1978). It is still
eration (e.g., a “gentlemen's agreement") or to a used in both AmE and BrE, although in the 1970s
formal legal arrangement supported by consider­ England's Law Commission Working Party pro­
ation. Contract is used only in this second sense. posed replacing the phrase with help— a proposal
The distinction applies also with the verbs agree that was not accepted. Perkins and Boyce recom­
and contract. The intended sense o f agree(ment) mend abet, which can stand alone unaided.
is usually clear from the context. The agent noun is aider and abettor—e.g.: “The
Although every contract is an agreement, not appellant now makes the further claim that the
every agreement is a contract. For example, one complaint charged the defendant as an original
may agree to meet a friend at 7:00 p.m. for dinner, instigator only, and that he cannot be held liable
and the result is properly called an agreement— thereunder as an aider and abettor.”/ “The court
but not a contract, to which a legal obligation stated that it had found no other case discussing
attaches. See ba rg a in . whether a nonparty aider and abettor is subject
to the court's jurisdiction.” See a b ettor.
A g r e e m e n t , G r a m m a t ic a l . See concord (a ). Sometimes the phrase is made even wordier:
“The further contention o f the appellant is that
agrees a n d cov en a n ts. See co v e n a n t a n d defendant's acts are insufficient to support the
agree. trial court's conclusions that he knowingly aided,
abetted, and assisted [read abetted] in the prose­
ag ree w ith ; a g ree to; a g re e on . Agree with cution o f false charges against defendant, and
means “to be in accord with (another)”; agree to, adopted them as his own.” See DOUBLETS, TRIP­
“to acquiesce in (usu. the performance or specifi­ LETS, AND SYNONYM-STRINGS.
cations o f something).” Agree on refers to the
subject o f the agreement: one agrees with some­ a id (e )-d e -ca m p (= military aide) is borrowed
one on a certain settlement. E.g., “Plaintiff agreed from the French and should retain the Gallicized
with defendant on the contractual provisions re­ spelling— aide— especially considering that aide
lating to time o f delivery.” is itself now an English word (meaning “a staff
member under one's authority”). The plural is
agrém ent . See ag ré at ion. aides-de-camp.
In BrE, the phrase is often abbreviated A.D.C.
a h old and its variant aholt are dialectal. They <he was A.D.C. to General Montgomery in
might perhaps be justified in bizarre contexts 1943>.
such as this: “Plaintiff, driving her car, suddenly
aim to [ + p re se n t in fin itiv e]; aim at [ + g e r­
becomes convinced that God is taking ahold of
the steering wheel.” u n d ]. The idiom aim to establish is typical o f
AmE, aim at establishing typical o f BrE.
-AH O Lic, -AHOLISM. Speakers and writers should
a ir w o r th y is used in reference to aircraft and
avoid indiscriminately appending these newfan­
means “fit for operation in the air” (W3). The
gled “suffixes” to words to indicate various addic­
word, surprisingly enough first used in 1829, was
tions. Each time this is done, a m o r p h o l o g ic a l
analogized from seaworthy, q.v.
d e f o r m it y is created.

a itio lo g y . See e tio lo g y .


a id an d a bet = “to assist the perpetrator o f the
crime while sharing in the requisite intent.” U.S. alas; a lack . Alas should express woe caused by
v. Martinez, 555 F.2d 1269, 1271 (5th Cir. 1977). a lamentable state o f affairs. Here, in a quotation
This phrase is a well-known legal d o u b l e t that, from a journal entitled Ethnicity, it is nonsensical:
like most doublets, has come down to us from “There have been a number o f meetings around
the Middle Ages and Renaissance, when it was the land about ethnicity (the phenomenon, alas,
common to embellish terms with synonyms. Sin­ not this journal).” The writer would hardly be­
gly, aid is the more general term, abet generally moan the increasing attention given to ethnicity
alibi 41

as an academic subject, even if the writer were a lega l, adj. This late-20th-century n e o l o g i s m —
editor o f the journal. If one were to guess at the lit. “without law”— recognizes the increasingly
intended meaning in that quotation, alas might common view that we should not put every action
be a MALAPROPISM for some phrase such as to be or event on the plane o f legality and illegality. In
sure. the view o f some scholars, if an action is neither
Alack is archaic; alas and alack is a tiresome mandated nor prohibited by law, then it should
CLICHÉ. be characterized as alegal— e.g.:
• ‘T hink o f the many human beings in pre-indus­
al b a rre . See at (th e) b a r. trial society related through their dependence
on territorial magnates, or guilds, or church
albeit. This conjunction, though termed "archaic” organizations. They were not alegal institu­
by Eric Partridge (the British lexicographer), tions.” Joseph Vining, Legal Identity: The Com­
thrives in AmE, both legal and nonlegal. And it ing o f Age o f Public Law 49 (1978).
still appears in BrE, esp. in legal writing. Labeled • “At the free, alegal end of the spectrum, realism
"literary” in the COD, the word albeit means views judges as charging their own individual
"though” and introduces concessive phrases and courses unencumbered by law in all respects
sometimes subordinate clauses. The even more but form . . . .” Lewis A. Komhauser & Law­
literary howbeit, by contrast, means “neverthe­ rence G. Sager, Unpacking the Court, 96 Yale
less” and begins principal clauses. L.J. 82, 93 (1986).
A. In trodu cin g Phrases. The predominant • “[Treating] the promises o f unmmarried cohab-
m odem use is for albeit to introduce concessive itors as contractual words rather than alegal
phrases: "The parties addressed the issue, albeit words o f commitment puts public force behind
in fairly leisurely fashion.”/ “Petitioner located what is otherwise legally vacuous.” Mark Kel-
employment in 1978, albeit at a lower wage than man, A Guide to Critical Legal Studies 105
he earned working for the respondents.” (1987).
B. In trodu cin g Clauses. Albeit may begin a In using this term, o f course, one must respect
clause, albeit although is more common in this the boundaries between alegal and illegal. Other­
context: "The fifty-five mile-an-hour speed limit wise, the same confusion might arise as exists
has its benefits; it also has its costs, albeit they between amoral and immoral. See im m ora l.
may not seem apparent because a majority is For related terms, see e x t r a l e g a l & n o n le g a l .
willing to pay them.”/ “When the relevant credit
extends to £10, that is the moment at which alias is both adverb (= otherwise [called or
the offense is committed, albeit it may be by named]), as an elliptical form o f alias dictus, and
aggregating a series of smaller sums.” (Eng.)/ “We noun ( = an assumed name), today usually the
think that we have for review a decision on a latter. Alias refers only to names, and should not
stipulated record, albeit the matter was styled as be used synonymously with guise ( = assumed
a determination on motions for summary judg­ appearance, pretense). See p o p u l a r iz e d l e g a l
ment.” TECHNICALITIES.
C. F or even if. Archaically, albeit is sometimes
used for even if in beginning a clause: “Separate a lib i. A. As a Noun fo r excuse. The words are
and distinct false declarations that require differ­ not synonymous, although the confusion that has
ent factual proof o f falsity may properly be grown out o f their meanings is understandable.
charged in separate counts, albeit [read even if\ Alibi is a specific legal term referring to the de­
they are all related and arise out o f the same fense o f having been at a place other than the
transaction or subject matter.” This use o f the scene o f a crime. By s l i p s h o d e x t e n s i o n it has
term is to be discouraged. come to be used for any excuse or explanation for
misconduct, usually that shifts blame to someone
a lea tory ; sto ch a stic; fo rtu ito u s . These words else.
have similar but distinct meanings. Aleatory = The Evanses wrote of this term:
depending on uncertain contingencies c o n t in ­ Cynicism and the common man’s distrust of the law have
gent remainders are aleatory>. E.g., “We will re­ tinged alibi with a suggestion of improbability and even
spect the aleatory nature o f the settlement pro­ of dishonesty. Purists insist that it should be restricted
to its legal meaning, and those who wish to be formally
cess, whether any o f the parties are ultimately
correct will so restrict it. In so doing, however, they will
found to have made a favorable settlement.” lose the connotation of cunning and dishonesty which
Stochastic = random. Fortuitous = accidental, distinguishes it from excuse.
occurring by chance. See fo rtu ito u s . Cf. a d v e n ­ Bergen Evans & Cornelia Evans,
titiou s. Contemporary American Usage 24 (1957).
42 alien

Lawyers perhaps more than others ought to “wish obscure, equivalent o f grantee. See the quotation
to be formally correct.” in the following entry.
B. As an Adverb. In recent years alibi has been
used as an adverb (meaning “elsewhere” <she a lie n o r; a lien ist. Alienor (= one who transfers
proved herself alibi>), but this usage should be property) is equivalent to grantor; it should be
eschewed. Although “elsewhere” is the original avoided where grantor or transferor will serve:
Latin meaning o f alibi (originally a locative o f L. “Conveying lands by means o f a fictitious or collu­
alius “other”), in English it has long served only sive suit, commenced by arrangement by the in­
as a noun, and it is an affectation to hark back to tended alienee [read grantee or recipient] against
the classical sense. the alienor [read grantorT (quoted in OED).
C. As a Verb. Nor should alibi be used as a Alienist is an obsolescent term for psychiatrist.
verb, as it is in the following sentences. The first E.g., “The only witness testifying that the testator
sentence is doubly bad, for the misbegotten verb was incompetent was an alienist who had never
is based on the misused noun (see A): “The party seen him and the testator’s divorced wife who had
cannot alibi [i.e., excuse] losses in the election.”/ not seen him in two years.”
“The defendants alibied themselves [i.e., excul­
pated themselves by proving that they were not a lim on y . See p a lim o n y .
at the scene o f the crime] and accused other
men.”/ ‘T h e conspirators attempted to alibi [i.e., a lio intuitu is not a justified l a t i n i s m , when

provide alibis for] one another.” The OED records there are so many more precise alternatives such
this usage from 1909 and labels it colloquial. as from a different point o f view or with respect to
another case (or condition). E.g., “Counsel urges
alien , adj., takes the preposition from or, more us to reject all observations to the contrary in the
commonly, to. For purposes o f DIFFERENTIATION, other authorities as made alio intuitu [read under
“there is perhaps a slight preference for from different circumstances] on the strength o f admis­
where mere separation is meant (We are entan­ sions.” (Eng.).
gling ourselves in matters alien from our subject),
and for to when repugnance is suggested (Cruelty a liq u o t; a liq u a n t. Aliquant = being a part o f a
is alien to his nature)” (MEU2 17). number or quantity but not dividing it without
leaving a remainder <4 is an aliquant part o f 17>
alien , v.t.; a lien ate; a b a lien a te. When we talk (W3); aliquot = contained an exact number o f
about property changing hands, the best choice o f times in something else <4 is an aliquot part o f
verb is convey or transfer rather than any o f these 16> (id.).
legalistic words. But if some form o f alien must These are technical terms generally best left to
be used, the most common and therefore the best technical contexts. Aliquot adds nothing to the
word in all senses is alienate, whether one writes following sentence: “Compromises are contracts
about alienation o f property or o f affections. Non­ o f settlement, and the compromise o f one aliquot
lawyers may understand that in certain contexts part o f a single liability and payment o f the bal­
alienate means “to transfer (as property)”; they ance in full is a settlement o f all parts o f such
have little chance of understanding alien in such single liability.”
a context—much less abalienate (a NEEDLESS One justified technical use o f these terms occurs
v a r ia n t from the civil law). E.g., “Since property in the field o f trusts, where payment o f an aliquot
owned by tenants by the entireties is not subject or aliquant part o f the consideration for transfer
to the debts o f either spouse, they may alien [read o f legal title may determine whether the pre­
alienate] it without infringing the rights o f their sumption o f a resulting trust will arise. When a
individual creditors.”/ “The rule o f common law is payor’s contributions for the purchase o f property
that a man cannot attach to a grant or transfer in another’s name are aliquot parts o f the pur­
of property, otherwise absolute, the condition that chase price, some courts presume the contribu­
it shall not be alienated.” Aliene is an archaic tions to be a gift or loan; when, however, these
variant spelling o f the verb alien. contributions are aliquant parts o f the purchase
Alienate frequently takes on the lay sense in price, the presumption does not arise. See Re­
legal writing, as in the phrase alienation o f af­ statement (Second) o f Trusts § 454 comment c
fections, or as here: “This false statement was (1959). This distinction may be obsolescent; the
designed to alienate supporters o f plaintiff and to Restatement rejects it in comment b to section
affiliate them with the other candidate.” 454.
The term aliquot is also used in determining
a lien ee (= one to whom ownership o f property is whether a gift o f property in a will is a specific
transferred) is an unnecessary, and unnecessarily or a general legacy: “[B]equests o f all testator’s
allegedly 43

property, an aliquot part thereof, or all property [read not all their complaints] have merit, they
except certain things . . . have been held to too should be heard . . . .” William O. Douglas,
amount to general legacies.” Thomas E. Atkinson, Points o f Rebellion 14 (1970). Cf. e v e r y (c ) &
Handbook o f the Law o f Wills 733-34 (2d ed. e v e r y o n e . . . n ot.
1953). See leg a cy . C. And any. All follows a superlative adjective
cm ost o f all>; any follows a comparative adjective
a liu n d e (= from another source, from elsewhere) <more than any other>. Constructions such as
is a LATINISM with little justification in place more . . . than all are illogical— e.g.: “Thomp­
o f an English equivalent. The phrase evidence son & Knight [a Dallas law firm] spent more time
aliunde, for example, means “evidence from out­ doing pro bono work than all Dallas law firms.”
side (an instrument, for example); extrinsic evi­ [Read Thompson & Knight spent more time doing
dence.” E.g., “Thereupon . . . counsel would pre­ pro bono work than any other Dallas law firm.]
sent their respective reviews o f the nature and See OVERSTATEMENT.
effect o f the state o f the record with respect to For any and all, see a n y a n d all.
the existence o f sufficient evidence aliunde [read
enough other evidence] to justify admission o f the all a n d sin g u la r is a collective equivalent o f each
testimony.” U.S. v. Azzarelli Constr. Co., 612 F.2d and every. It is almost always unnecessary—e.g.:
292, 297 (7th Cir. 1979). “Defendant denies each and every, all and singu­
lar, the allegations [read all the allegations] con­
A L J; A .L.J.; a.l.j. The usual abbreviation for ad­ tained in the plaintiffs original petition.” See
ministrative-law judge is ALJ (without periods)— DOUBLETS, TRIPLETS, AND SYNONYM-STRINGS.
an abbreviation first used in 1973 and now com­
monplace. For the first recorded use, see Hawkins a ll d e lib e r a te sp eed . See w ith all d e lib e ra te
v. Weinberger, 368 F. Supp. 896, 897 (D. Kan. sp eed .
1973). The plural is ALJs. See a d m in istra tiv e-
la w ju d g e . a lle g a tio n ; a lleg em en t; allegatum . The second
The uses o f A.L.J. in late-19th-century Ameri­ and third forms are n e e d l e s s v a r i a n t s .
can opinions generally meant either additional
law judge or associate law judge. a lle g a to r = one who alleges. It is not often used,
even in legal writing, perhaps because o f its jocu­
all. A. All (of). The more formal construction lar suggestiveness o f alligator.
is to omit o f and write, when possible, “AZZ the
arguments foundered.” E.g., “Appellant was to allegatum. See a lleg a tion .
guarantee unconditionally appellee’s performance
under the purchase agreement, including all ap­ a llege; c o n te n d . To allege is formally to state a
pellee’s obligations and liabilities.” When the matter o f fact as being true or provable, without
phrase is followed by a pronoun, all o f is the only yet having proved it. The word once denoted stat­
idiomatic choice (all o f them, not all them), except ing under oath, but this meaning no longer ap­
when the pronoun is possessive <all my personal plies. To contend, in the advocatory sense, means
property>. “to state one’s position in a polemical way, to
Before general nouns, all o f is more common in submit.” (In its popular sense, contend means “to
AmE than in BrE; nevertheless, it should gener­ strive against.”)
ally be avoided in formal writing. Rarely, all of Allege should not be used as a synonym o f
reads better than all even where a pronoun does assert, maintain, declare, or claim. Allege has
not follow—e.g.: “AZZ o f John’s property was there­ peculiarly accusatory connotations. One need not
fore subject to the IRS lien.” allege only the commission of crimes; but cer­
B. With Negatives. Not all— as opposed to all tainly the acts alleged must concern misfeasances
. . . not—is usually the correct sequence in nega­ or negligence.
tive constructions. “It seems that all things were
not going well in Wheeler’s own unit.” (This ex­ a lleg ea b le; a lle g ib le . Allegeable is the only rec­
panded version o f the idiomatic “All is not well” ognized form o f the word.
does not work. [Read either It seems that not all
things were going well or, better, It seems that all a lle g e d ly does not mean “in an alleged manner,”
was not well.])/ “However, all American courts as it would if the adverb had been formed as
did not reject it.” Roscoe Pound, The Formative English adverbs generally are. Follett considered
Era o f American Law 89 (1938). [Read: But not all adverbs like this one ugly and unjustified (esp.
American courts rejected it.]/ “Students rightfully reportedly). See Wilson Follett, Modern American
protest; and while all o f their complaints do not Usage 279 (1966). Yet allegedly is a convenient
44 allegement

space- and time-saver for it is alleged that or In the following sentence (Uniform Probate Code
according to the allegations. Though not logically 2-104), three words in a five-word phrase rhyme:
formed, allegedly is well established and unobjec­ “This section is not to be applied where its appli­
tionable, if used in moderation. See r e p o rte d ly . cation would result in a taking o f intestate estate
by the state” [A possible revision: This section
a llegem en t. See a lleg a tion . does not apply when its application would result
in the escheat o f an intestate estate.] Although one
a lleg ib le. See a lleg ea b le. can avoid the use o f state, intestate estate is well-
nigh unavoidable. (The English Parliament en­
A llen ch a rg e. See case r eferen ces (c ) & dyna­ acted the Intestates' Estate Act, 15 & 16 Geo.
m ite ch a rg e . VI & 1 Eliz. II, c. 64 (1952).) Sometimes one
wishes that we could use the terms willed and
a ller sans jo u r . See l o a n t r a n s l a t io n s . unwilled rather than testate and intestate: “It is
familiar law that the will is the source o f the
all fou rs. See o n all fou rs. beneficiaries' title in the case o f testate estates,
while in intestate estates the source o f title is the
a llid e; c o llid e . The former is used only in a statute.”
special context in reference to ships in admiralty One good way to avoid the infelicity o f undue
law. When two ships allide, one o f them is station­ alliteration is to read one's prose aloud when
ary; ships collide when both are moving before editing. See s o u n d o f p r o s e , t h e .
impact. Black’s notes that the distinction is not
carefully observed. See c o llis io n . a l l . . . n ot. See a l l ( b ).

a llision . See co llisio n . a l l o c a b l e is the proper form, not allocatable—


e.g.: “The division . . . held that the portion o f
A l l it e r a t io n . A . R h e to r ic a lly E ffe c tiv e E x ­ increased tax expense attributable to facilities
a m p le s . “The primary appeal o f the language,” actually providing intrastate service was properly
wrote Jerome Frank, “is to the ear.” The s o u n d o f allocatable [read allocable] to Narragansett's in­
p r o s e is therefore a critical concern. And writers trastate operations.” Nepco Mun. Rate Comm. v.
frequently harness sounds for any o f several ef­ FERC, 668 F.2d 1327, 1346 (D.C. Cir. 1981). See
fects. When they repeat sounds, the result is -ATABLE.
called alliteration.
Sometimes alliteration creates a sarcastic tone, a llo c a te e . See -EE.
as when Vice President Spiro Agnew referred to
the nattering nabobs o f negativism. E.g., “And a l l o c a t o r ; a l l o c a t u r . Allocator = one who allo­
what is implied by that lovely limpid legalism, cates. Allocatur (lit., “it is allowed”) in former
'due process o f law* ? ” Fred Rodell, Woe Unto You, practice meant “a certificate duly given at the end
Lawyers! 51 (1939; repr. 1980)./ “Unblinded by o f an action, allowing costs” (OED).
the tweedledum-tweedledee twaddle o f much that
passes for learned legal argument, . . . he seems a llo c u te(= to deliver in court a formal, exhort-
essentially a direct, plain-spoken politician atory address, i.e., an allocution) is a BACK-FORMA-
. . . .” Fred Rodell, Nine Men 331 (1955). t i o n from the noun allocution, q.v. Although some

At other times it merely creates a memorable years ago the verb might have been viewed as
phrase— e.g.: “[ JJudges do and must legislate but a barbarous m o r p h o l o g ic a l d e f o r m i t y , just as
they can do so only interstitially; they are con­ electrocute once was, we should accept allocute as
fined from molar to molecular motions.” Southern a useful addition to legal language. E.g., “The
Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917) appellants assert that the district court erron­
(Holmes, J., dissenting). eously found that it had no cause to allocute.”
B. U nconscious Examples. The unconscious Because allocution most properly refers to the
repetition o f sounds, especially excessive sibilance court's and not to the criminal defendant's ad­
(too many -s- sounds, as in the phrase especially dress, it is the court that allocutes; this distinction
excessive sibilance), can easily distract readers: has given way to s l i p s h o d e x t e n s i o n , however:
“[W]hen used by accident it falls on the ear very “The trial judge denied the defendant the opportu­
disagreeably.” W. Somerset Maugham, “Lucidity, nity to allocute.”
Simplicity, Euphony,” in The Summing Up 321,
325 (1938). a l l o c u t i o n ; allocutus. Allocution is inade­
Though alliteration is quite common with -s- quately defined by the major dictionaries (usu.
sounds, other unconscious repetitions can occur. some variation on “a formal address”). In modem
allude 45

legal usage, the word refers to a trial judge’s lawyers borrowed the word from French law in
asking a criminal defendant to speak in mitiga­ the mid-19th century. Although Ballentine's Law
tion o f the sentence to be imposed. By SLIPSHOD Dictionary (3d ed. 1969) suggests that the word is
e x t e n s i o n , the word has come to denote the ac­ pronounced la-lanjl, the better and more common
cused person’s speech in mitigation o f the sen­ pronunciation is fd-lonj/.
tence, rather than the judge’s address asking the
accused to speak. E.g., “The contention o f this a llo w . A. Senses. Allow = (1) to give or grant
federal habeas corpus petitioner that he was not (something) as a right or privilege <she allowed
accorded his right o f allocution in state court her neighbor an easement>; (2) to approve by
fails to raise a federal question.” Allocutus is a not objecting <the court allowed appellee’s coun­
n e e d l e s s v a r i a n t and an unnecessary LATINISM. sel to reply to the rebuttal>; (3) to make provision
See e l o c u t i o n . for <the rules allow depositions upon written
The phrase victim allocution— a popular phrase questions>; or (4) in BrE, to sustain (a judg­
since the 1980s— refers to a crime victim’s ad­ ment, claim, or appeal) <the appeal should be
dressing the court with the objective usu. o f per­ allowed>.
suading the sentencer to impose a harsher sen­ B. A nd permit . The words allow and permit
tence. Arguably the result o f SLIPSHOD EXTENSION, have an important connotative difference. Allow,
the phrase is now established in American law. as in sense (2), suggests merely the absence o f
opposition, or refraining from a proscription. In
a l l o c u t o r y is the adjective corresponding to the contrast, permit suggests affirmative sanction or
noun allocution, q.v.— e.g.: “[T]he right to make approval.
allocutory and other legal claims should be made
effective by a right to counsel at sentencing.” a l l o w a b l e , though structurally an adjective, of­
Note, Procedural Due Process at Judicial Sentenc­ ten functions as a noun in legal contexts. As a
ing for Felony, 81 Harv. L. Rev. 821, 833 (1968)./ noun it refers to the amount o f oil or gas that an
a[A]llocutory pleas for mercy would have been operator is allowed to extract from a well or field
unavailing and were not allowed.” Harris v. State, in one day, under proration orders o f a state
509 A.2d 120, 125 (Md. Ct. App. 1986). regulatory commission. E.g., “A well bottomed in
this sand had an allowable that would enable it
is the proper adjective, alodian being an
a llo d ia l to recover an amount o f oil and gas in excess
erroneous form. o f the tract’s fair share o f production from both
reservoirs.” See a d j e c t i v e s (B).
a l ( l ) o d i u m , -ia l . Black's and the OED list allo­
dium ( = land held in fee simple absolute) as a ll r e a d y . See a l r e a d y .
standard, alodium as a variant; W3’s listing is
the opposite. Both forms may lay claim to etymo­ a l l r i g h t ; a l r i g h t . Alright for all right has never
logical precedent. Allodium seems to be the more been accepted as standard and probably never
common and, because unanimity is desirable on will be. Although the phrase is considered uni­
this point, should be used to the exclusion o f its tary, the one-word spelling has not been recog­
single-elled counterpart. The plural is generally nized “perhaps because the expression remains
allodia. largely an informal one” (Oxford Guide).
The adjective form is allodial—e.g.: “There re­
mained scattered tracts of 'allodial* land (literally, a ll th e ; a ll th e s e . See a l l (a ).
land ‘without a lord*) which were not incorporated
into the system o f feudal tenure and whose own­ a ll to g e th e r . See a l t o g e t h e r .
ers did not even in theory become tenants.” Peter
Butt, Land Law 38 (2d ed. 1988). a llu de. A. A nd advert; refer. To allude is to
refer to (something) indirectly or by suggestion
a ll o f. See a l l (a ). only. To advert or refer is to bring up directly,
advert, q.v., being the more f o r m a l w o r d . Allude
a l l o g r a p h ; a u t o g r a p h . An allograph is an is commonly misused for refer; the indirect nature
agent’s writing or signature for the principal. An o f allusion is an important element o f the word’s
autograph, of course, is one’s own signature. sense. E.g., “In a work purporting to discuss the
ethical side o f practice, a passing allusion [read
a l l o n g e ( = a piece o f paper attached to a note or reference] to the subject seems eminently proper
other negotiable instrument, usu. to make room if not necessary.”/ “As the above notice contained
for further indorsements) derives from the French an allusion to the plaintiff, and also statements
verb allonger ( = to lengthen). Anglo-American that he considered were calculated to damage his
46 allusion

character and the credit o f his firm, a solicitor parked alongside another, and logs are stacked
was consulted, and a letter was written by him to alongside one another. It is unnecessary to write
the defendants, protesting against the plaintiff’s alongside o f
name being used as intended in the advertise­
ment.” (Eng.) (Here the final phrase reveals that Already has to do with time
a lr e a d y ; a ll r e a d y .
the name was actually mentioned: that the publi­ <finished already>, and all ready with prepara­
cation contained a reference, not an allusion, to tion <we are all ready>.
the plaintiff.) In the following sentence the writer
creates an OXYMORON: “There being no words ex- a lr ig h t. See a l l r i g h t .
pressly alluding [read referring] to that contin­
gency, the court is to cure the defect by implica­
a ls o . See t o o (a ).
tion.”
B. And illude; elude . To illude is to deceive
a l s o n o t is usually inferior to nor— e.g.: “The
with an illusion; to elude is to avoid or escape.
cases are also not [read Nor are the cases] in
Here elude is misused for allude, a startling blun­
accord as to the effect o f an accidental killing o f
der: “That is the reason for the problem the dean
another during an attempt to commit suicide.”
was eluding to [read alluding to]"
Rollin M. Perkins & Ronald N. Boyce, Criminal
C. F or suggest. This is an attenuated use of
Law 122 (3d ed. 1982)./ “My motion pictures were
allude to be avoided. “Appellants attempt to al­
also not very good.” [Read: Nor were my motion
lude [read suggest] that their assistance in evad­
pictures very good.] Stephen White, The Written
ing Iranian currency controls and that rebating
Word x (1984).
money to appellee in American money was a ma­
jor service that takes the contract outside the
purview o f the U.C.C.” Both words may act as
a lte r a tiv e ; a lte r a n t.
noun and adjective. As adjectives, they both mean
allu sion ; illu sion . The first is an indirect refer­ “causing alteration.” As nouns, however, the
ence <literary allusion>, the second a deception meanings diverge. An alterant is “anything that
or misapprehension coptical illu sion s For the alters or modifies.” Alterative is a term used in
difference between illusion and delusion, see illu ­ medical contexts— though rarely now by physi­
sion . cians—meaning “a medicine that gradually
changes unhealthy bodily conditions into healthy
A l l u s io n . See l it e r a r y a l l u s i o n (A). ones.”

allu sive; allu su ry. Allusive is standard. a l t e r c a t i o n . This word refers to “a noisy brawl or
dispute,” not rising to the seriousness o f physical
a llu vio(n ); a llu viu m . In the strictest sense, allu­ violence. Here the word is almost certainly mis­
vion means “the flow or wash o f water against a used for fight in the physical sense: “While serving
riverbank,” and alluvium “a deposit o f soil, clay, a term o f imprisonment in a North Carolina peni­
or the lack o f such a deposit caused by an allu­ tentiary, the respondent Perry became involved
vion.” Alluvion has come, however, to be used in an altercation with another inmate; a warrant
for alluvium— a regrettable development, for the issued, charging Perry with the misdemeanor o f
d if f e r e n t ia t io n is worth preserving. AUuvio is
assault with a deadly weapon.” Leff ill-advisedly
the Roman-law term for alluvion. wrote that “coming to . . . blows is not totally
The plural forms o f the English terms are allu­ excluded from the ambit o f this term,” and used
vions and alluviums (or, less good, alluvia). See it for a physical affray in his entry on aggressor.
p l u r a l s (A). The adjective for alluvium is alluvial,
Arthur A. Leff, The Leff Dictionary o f Law, 94
the forms alluvious and alluvian being NEEDLESS Yale L.J. 1855, 2003, 1981 (1985). For authority
v a r i a n t s . Alluvion has no clear-cut adjective; it
limiting the term to the sense “wordy strife,”
should act as its own adjective. see the OED, W2, W3, and Partridge, Usage and
Ahusage 27 (1973).
ally. As a noun, the accent is on the first syllable
/al-l/\ as a verb, on the second fo-h/.
(lit., “other I”) = a second self. To
a lte r e g o

a lm oi(g )n . See fra n k a lm o i(g )n (e ). nonlawyers, it means “a kindred spirit” or “a con­


stant companion.” To American lawyers it has
a lod ia n . See al(l)od iu m . a special meaning in the corporate context: “a
corporation used by an individual in conducting
a lon g sid e (o f). The word alongside, as a preposi­ personal business, such that a court may impose
tion, means “at the side of.” Hence, one car is personal liability (by piercing the corporate veil)
alumnus 47

when fraud has been perpetrated on third persons pleaded].”/ “Appellant based his claim on alter­
dealing with the corporation.” The phrase should nate [read alternative] theories.”/ “The court per­
not be hyphenated unless it functions as a mitted a damage action there despite the exis­
p h r a s a l a d j e c t i v e <alter-ego theory>. tence o f the alternate [read alternative] remedy.”
The notion that an alternative is one o f two
altern a te; a ltern a tiv e. A. As Nouns. An alter­ choices is strongly enough rooted that two alterna­
native is a choice or option— usually one o f two tives usually seems redundant: “Where a trust
choices, but not necessarily. It has been argued instrument contains two alternative conditions
by etymological purists that the word (fr. L. alter [read contains alternative conditions], o f which
“the other of two”) should be confined to contexts the first might be too remote and the second,
involving but two choices; Fowler termed this which actually occurs, is not too remote, the rule
contention a fetish, and it has little or no support is not violated.” In any event, because alternative
among other stylistic experts or in actual usage. suggests mutual exclusivity when referring to two
E.g., “None o f the three alternatives pretends to objects, either is redundant when used in proxim­
show the sequence o f transactions.”/ “The defen­ ity: “A search o f the record in this case establishes
dant is directed to provide to the court within a likely absence o f complete diversity between the
fourteen days in affidavit form information con­ parties on either o f two alternative theories [read
cerning three alternatives.” on either o f two theories or on alternative theo­
Indeed, alternative carries with it two nuances ries].”
absent from the near-synonym choice. First, alter­
native may suggest adequacy for some purpose a lt e r n a tiv e d is p u te r e s o lu t io n ; a lt e r n a te d is ­
<ample alternative channels:»; and second, it may The proper form is alternative
p u te r e s o lu t io n .
suggest compulsion to choose *<the alternatives dispute resolution. The phrase is commonly abbre­
are liberty and death>. viated ADR. See a l t e r n a t e ( b ).
Alternate, n., means: (1) “something that pro­
a lth o u g h ; th o u g h . As conjunctions, the words
ceeds by turns with another”; and (2) “one who
are virtually interchangeable. The only distinc­
substitutes for another.” It is helpful to under­
tion is that although is more formal and dignified,
stand that alternative is called upon for use far
more frequently than alternate.
though more usual in speech and familiar writing.
In certain formal contexts, however, though reads
B. As A djectives. Alternative = mutually ex­
better. Though serves also as an adverb <He
clusive; available in place o f another ( COD). E.g.,
stated as much, though>.
“Nevertheless, if he has failed to show an unlaw­
Tho and altho are old-fashioned truncated spell­
ful conspiracy and monopoly, he has under his
ings that were at one time very common but failed
alternative demand shown a cause o f action to
to become standard. They should be avoided.
recover damages from either or both o f the defen­
dants.” was formerly a common con­
a lth o u g h . . . y e t
Alternate = (1) coming each after one o f the struction; these two words were once considered
other kind, every second one; or (2) substitute. CORRELATIVE c o n j u n c t i o n s . Today the construc­
This sentence illustrates sense (1) o f alternate: tion is seen only in the most formal contexts:
“The examination may be made either by one “Although the relation o f parent and child sub­
person reading both the original and the copy, or sists, yet if the child is incapable o f performing
by two persons, one reading the original and the any services, the foundation o f the action fails.”
other the copy, and it is not necessary (except in (Eng.) In most modern contexts, either conjunc­
peerage cases) that each should alternately read tion will suffice to give the same meaning as if
both.” (Eng.) Here sense (2) o f alternate applies: both were used.
“Statutes providing for alternate jurors to sit on
a case so that they can substitute for jurors ceas­ a l l t o g e t h e r . Altogether — com­
a lto g e th e r ;
ing to sit on the case sometimes provide for addi­ pletely; wholly. “Such appeals are altogether frivo­
tional peremptory challenges with respect to such lous.” All together = at one place or at the same
jurors.”/ “Thereafter, the testator decided he did time. “The defendants were tried all together.”
not wish to nominate this alternate executor.”
In the following sentences, alternate is misused alu m n u s. A. Sense. This term is obsolete as a
for alternative— a common mistake, perhaps un­ for foster-child; today it means only “a
l e g a l is m

derstandable because o f the close sense (2) o f male former student (of a particular school, esp.
alternate: “Nor does it appear likely that further an institution o f higher learning).” Strictly speak­
conversations would have convinced counsel to ing, one need not be a graduate to be an alumnus.
pursue alternate [read alternative] defenses [i.e., One who abandons a course o f study is still an
defenses available in place o f the primary defense alumnus.
48 a.m., A.M.

B. The Plural Form s alumni and alumnae . ing a declaration). See law yer s, derogatory
The first, strictly speaking, refers to former stu­ NAMES FOR (A).
dents who are male; the singular form is alumnus.
The second refers to former students who are The first form, the En­
a m b ie n c e ; a m b ia n c e .
female; the singular is alumna. Nowadays, how­ glish form, is preferable. The latter is a French­
ever, alumni refers to males and females alike. ified affectation that has become a v o g u e w o r d .
The same is not true, however, o f alumnae, which See a m b i t .
can refer only to women. “Throughout its history,
the Securities and Exchange Commission has at­ A m b ig u it y , despite what many lawyers seem to
tracted lawyers o f the highest quality; among believe, inheres in all writing. Even the most
its alumnae [read alumni], for example, are Mr. tediously detailed documents that attempt to dis­
Justice William Douglas, Judge Gerhard Gesell, pel all uncertainties contain ambiguities; indeed,
Professor Louis Loss, and Professor Homer usually the more voluminous the writing, the
Kripke.” This statement might come as a surprise more voluminous the ambiguities. (See MYTH OF
to the persons mentioned. p r e c i s i o n .) Nevertheless, we must strive to rid
A more common mistake than confusing the our writing o f ambiguities that might give rise to
gender o f these words is confusing their n u m b e r , misreadings. DRAFTING especially is a constant
as by using alumni or alumnae as a singular. battle against ambiguity—a battle that no one
That these are plural forms o f alumnus and can entirely win: “Ambiguity is inherent in any
alumna should be apparent to anyone with even language more complex than grunts, and even a
the faintest familiarity with Latin. grunt can be ambiguous.” Philip Howard, At the
C. And alumnor. An alumnor is one employed Double, and Be Rather Sharp About It, The Times,
to work with or at an ex-students’ association. 8 Feb. 1991, at 92.
The word is a m o r p h o l o g ic a l d e f o r m i t y , be­ The war against ambiguity should not be waged
cause the -or suffix should generally be appended by overwriting and attempts at hyperprecision
to a verb, and alumn is no verb. through exhaustive specificity. Rather, the legal
writer should work on developing a concise, lean,
a.m ., A.M .; p.m ., P.M . It does not matter whether and straightforward writing style, along with a
capitals or lowercase letters are used, as long as a sensitivity to words and their meanings. Once a
document is consistent throughout. The lowercase writer has acquired such a style, ambiguities tend
letters are now more common. The phrases for to become more noticeable, and therefore easier
which these abbreviations stand are ante merid­ to correct. (See p l a in l a n g u a g e (D).) At the same
iem and post meridiem, not meridian. Periods are time, an increased linguistic sensitivity allows
preferred in these abbreviations. one to see ambiguities in what might previously
have seemed a model o f clarity.
Some d if f e r e n t ia ­
a m a lg a m ; a m a lg a m a tio n . What exactly is an ambiguity? William Empson,
is possible. Amalgam, the older term, means
t io n the greatest expounder o f ambiguity, has defined
“a combination” <a perfect amalgam o f virtuosity it as “any verbal nuance, however slight, which
and elegance>. Amalgamation means primarily gives room for alternative reactions to the same
“the act o f combining or uniting; consolidation” piece o f language.” William Empson, Seven Types
<effecting an amalgamation o f the companies>. o f Ambiguity 19 (1930; Penguin ed. 1977). Courts
Amalgamation is best avoided in the sense given tend to define ambiguity more narrowly: “An ‘am­
to amalgam. biguous’ word or phrase is one capable o f more
than one meaning when viewed objectively by a
a m a to ry . See a m o r o u s . reasonably intelligent person who has examined
the context o f the entire integrated agreement
a m b a s s a d o r ; e m b a s s a d o r . The former is the and who is cognizant o f the customs, practices,
preferred spelling. See e m b a s s y . usages and terminology as generally understood
in the particular trade or business.” Walk-In Med­
a m b ia n c e . See a m b i e n c e . ical Ctrs., Inc. v. Breuer Capital Corp., 818 F.2d
260, 263 (2d Cir. 1987).
a m b i d e x t e r = a solicitor who, retained by one Ambiguity should be distinguished from
party to litigation, abandons that party for the vagueness:
adversary. E.g., “He is a d------ d rascal, and an
It is unfortunate that many lawyers persist in using
immoral and base man, and unless ignorance o f
the word ambiguity to include vagueness. To subsume
the law makes a lawyer he is no lawyer—he is both concepts under the same name tends to imply that
an ambidexter and a disgrace to his profession.” there is no difference between them or that their differ­
Goodenow v. Tappan, 1 Ohio 60, 61 (1823) (quot­ ences are legally unimportant. Ambiguity is a disease
Ambiguity 49

of language, whereas vagueness, which is sometimes a though it were a person, it pays taxes, it may
disease, is often a positive benefit. . . . Whereas ambigu­ apply for business licenses in its own name, it
ity in its classical sense refers to equivocation, vagueness
may have its own bank account, it may have its
refers to the degree to which, independently of equivoca­
tion, language is uncertain in its respective applications own seal, and so forth.” All the its in this sen­
to a number of particulars. Whereas the uncertainty of tence have the antecedent entity. Yet, because
ambiguity is central, with an ‘either-or’ challenge, the o f the placement o f the first it, one is led to
uncertainty of vagueness lies in marginal questions of believe that the later ones will have a parallel
degree. structure (“as though it were a person, as
Reed Dickerson, The Interpretation o f Statutes
though it pays taxes, as though it may apply
48-49 (1975).
. . .”). Thus the reader is syntactically side­
O f course, even highly reputed legal writers tracked for a moment.
confuse the two terms— e.g.: “[A] written constitu­
2. Poorly Placed Modifiers
tion must be enormously ambiguous [read vague]
in its general provisions.” Edward H. Levi, An • “No well shall be drilled within 200 feet o f any
Introduction to Legal Reasoning 59 (1949; repr. residence or b am now on said land without
1972)./ “A wise draftsman, when he is dealing lessor's consent.” No well may be drilled without
with novel issues in course- of uncertain develop­ the lessor’s consent? (This, obviously, is the
ment, will deliberately retreat into ambiguity intended meaning.) Or is it that the bam must
[read vagueness—there being no such thing as be on the land without the lessor’s consent?
“purposeful ambiguity”].” Grant Gilmore, The • “The court concluded that literacy tests had
Death o f Contracts 76 (1974). abridged the right to vote on account o f race or
Dickerson, o f course, discusses ambiguity from color.” The right to vote on account o f race or
the vantage o f the legal drafter rather than that color was abridged? No: the right to vote was
o f the poet; for the latter, ambiguity is hardly abridged on account o f race or color.
“a disease o f language.” As Empson has so well • “Fear that a jury will wrongly convict an inno­
demonstrated, in literature it is often “a positive cent man o f rape because it believes a woman
benefit.” who is ambivalent or deceitful after the fact
Following are some examples o f the more com­ historically has pervaded the law o f rape.” Les­
mon types o f ambiguity in legal writing. Some o f lie J. Harris, Book Review, 66 Tex. L. Rev. 905,
these are equivocal only in a technical (or stick­ 905 (1988). Ambivalent or deceitful historically?
ler's) sense (i.e., are patent ambiguities); others No: historically is a squinting modifier that
create real dilemmas in meaning (i.e., are latent should be placed in the midst o f the verb phrase:
ambiguities); either way, these ambiguities de­ has historically pervaded. See ADVERBS, PROB­
tract from the context in which they appear. LEMS WITH (A).
A . U n c e r ta in S tr e s s . “Even if a merchant sells • “As such, the court would be correct in ordering
a product, if he was not engaged in selling that a partial distribution o f the amounts o f the fund
particular product in the normal course o f busi­ that has been sought in the motion.” Does the
ness, he may not be held liable.” Read the sen­ relative pronoun that refer to fund, amounts,
tence once stressing may, the next time stressing or distribution? Seemingly the last o f these,
not in the final clause. Rewording the sentence because the verb (has) is singular—and fund is
eliminates the ambiguity. Assuming the writer not logically the right word. Amounts is the
meant to say that the merchant is immune from right word logically, but it does not fit with has.
liability (and not that he might or may be im­ • “This chilling tale, told in a 13-page report re­
mune), he might better have written: he cannot leased today by Edward F. Stancik, the Special
be held liable (see c a n ) or he is not subject to Commissioner o f schools, raised serious ques­
liability. See m a y . tions about the detection and reporting o f child
B. Syntax. The ordering o f sentence-parts is abuse by school officials” Josh Barbanel, Girl
basic to clarity. When phrases are arranged with Writes About Rape by Father but School Ignores
little reflection, ambiguities are certain to arise. Plight, N.Y. Times, 5 Feb. 1993, at B l. Readers
may infer that the story is about child abuse by
1. Verbal Correspondence
school officials', in fact, however, it is about
• “The parties shall make every reasonable effort detection and reporting by school officials.
to agree on and have prepared as quickly as • “Israeli police officers pulled tires away from a
possible a contract . . . .” Should the sentence burning fire lit in response to the slayings by
read “to have prepared”? Does have correspond Jewish protesters Tuesday.” 2 Israeli Police
syntactically to shall, to make, or to agree? The Gunned Down, Daily Texan, 31 Mar. 1993, at 3
three possible meanings vary substantially. (adding that “[p]olice blamed militant Arabs for
• “The artificial entity may sue or be sued as the pre-dawn slayings”). Is it slayings by Jewish
50 ambit

protesters or fires lit by Jewish protesters? though, the term was a misnomer from the begin­
Though the latter interpretation seems more ning because Gatner would not reach the injured
far-fetched, that is what the writer intended. person until hours later—and often the next day.
See Murray T. Bloom, The Trouble with Lawyers
N O U N P L A G U E exemplifies one type o f poorly
118-19 (1970). See l a w y e r s , d e r o g a t o r y n a m e s
placed modifiers. For example, alimentary canal FOR (A).
smuggling was intended by the U.S. Supreme
Court to mean “smuggling contraband goods by a m b u la to ry (lit., “able to walk”) has a special
concealing them temporarily in one's gut.” But sense in the law o f wills: “taking effect not from
the phrase suggests “the smuggling o f alimentary when [the will] was made but from the death o f
canals.” E.g., “A divided panel . . . reversed [de­ the testator” ( CDL), or “capable o f being revised.”
fendant's] convictions, holding that her detention A will is ambulatory because it is revocable until
violated the Fourth A m endm ent. . . because the the testator's death. E.g., “The holding o f the
customs inspectors did not have a ‘clear indica­ chancery court was based on the proposition that
tion' of alimentary canal smuggling at the time a will is ambulatory, speaks only at the death o f
she was detained.” U.S. v. Montoya de Hernandez, the maker, and the 1955 will having been de­
473 U.S. 531, 533 (1985). stroyed in the lifetime o f the testatrix, it never
C. Poor Word Choice. “No one has ever told had the effect o f revoking the 1954 will.”
them how to edit syntactic confusion into clear
prose.” Joseph Williams, Style: Ten Lessons in a m eliora te; m e lio ra te . Ameliorate is the stan­
Clarity and Grace 4 -5 (1981). To get at the au­ dard term meaning “to make or become better.”
thor's true sense, read transform for edit. Other­ E.g., “These anomalies appear sufficiently en­
wise, edit . . . into can read as if it were insert meshed in the current tangled web o f jurispru­
. . . into. dence on this subject to be beyond amelioration
These problems are remedied easily enough by by a panel o f this court.”/ “Society's view o f land
thoughtful attention to one's prose, and by editing as a commercial asset plays an important part in
and revising with the realization that legal writ­ the law o f ameliorative waste.” Meliorate is a
ers harm only themselves when they burden read­ NEEDLESS VARIANT.
ers with these dilemmas in meaning. Drafters It is incorrect to use ameliorate as if it meant “to
who commit these sins do their clients a disser­ lessen”: “The First, Second, and Eleventh Circuits
vice, unless, of course, the clients enjoy litigation found that any resort to Iranian courts to recover
for the sake o f litigation. Cf. M ISCUES. the movants' monetary losses, should the prelimi­
nary injunction be denied, would be futile and
The former means “scope,” the
a m b it; a m b ie n c e . that the Iran-United States Claims Tribunal did
latter “the immediate environment; atmosphere.” not ameliorate [read lessen] the likelihood o f irrep­
Here the former is correctly used: “Yet this very arable injury.”
narrow ambit o f judicial review does not release
us from our responsibility to scrutinize the record a m e lio ra tin g w aste. See w aste.
in its entirety to determine whether substantial
evidence does support the Secretary's findings.” a m en a b ility ; am en ity. These words, o f unre­
See a m b i e n c e . lated origin, are occasionally confused. Amenabil­
ity = legal answerability; liability to being
c h a s e r = (1) a lawyer who ap­
a m b u la n c e brought to judgment <amenability to the jurisdic­
proaches victims of street accidents in hopes o f tion o f the foreign forum>.
persuading them to sue for damages; (2) a law­ Amenity = (1) agreeableness; (2) something
yer's agent who engages in this activity; (3) by that is comfortable or convenient; or (3) a conve­
extension, one who solicits personal-injury cases nient social convention. Here the word is almost
for a lawyer, usu. in return for a percentage o f certainly misused: “Fiat moved to dismiss the
the recovery (today an illegal activity in most action against it for lack of personal jurisdiction,
jurisdictions); or (4) by further extension, one who arguing that it was . . . not susceptible to the
seeks to profit from the misfortunes o f others amenities o f a Massachusetts forum [read not
cthat politician is nothing more than a foreign- amenable to the Massachusetts forum].”
policy ambulance-chaser>.
The first so-called ambulance chaser—and the a m en a b le takes the preposition to <amenable to
reputed coiner of the term—was Abraham process>.
Gatner, who in 1907 persuaded a New York law
firm to let him sign up accident victims on re­ a m en d ; e m en d . Both derive from the Latin verb
tainer agreements for the law firm. Actually, emendare ( = to free from fault). Amend = (1) to
amicus curiae 51

put right, change; or (2) to add to, supplement. v. Employers Liab. Assurance Corp., 348 U.S. 66,
This is the general word; the other is more special­ 75-76 (1954)./ “When we provided . . . that costs
ized. Emend = to correct (as a text). were to be awarded to defendants and interve-
Amend out has been used to mean “to excise.” nors, we did not intend to amerce the plaintiffs
E.g., “This provision, essentially the same as that with [read hold the plaintiffs liable for] all of
in the Senate bill, was amended out on the House the costs o f the litigation since its inception.”
floor.” Taken out, cut out, or excised would have Environmental Defense Fund, Inc. v. Froehlke,
been more felicitous. See p a r t ic l e s , u n n e c e s ­ 368 F. Supp. 231, 254 (W.D. Mo. 1973). See af-
sary & o u t (a ). fe e r.
The nominal forms o f amend and emend are
amendment and emendation. a m e rce m e n t; a m e rcia m e n t; m ercia m en t.
Amercement [fr. F. estre à merci “to be at [one’s]
a m en d a tory ; a m en d a b le. Amendatory = ef­ mercy”] = (1) the imposition o f a fine; or (2) the
fecting an amendment; amendable = capable of fine so imposed. Usually fining (sense 1) or fine
being amended. (sense 2) suffices in place o f this little-known
word. Sometimes, though, an appropriate edit is
a m en d ed p lea d in g . See su p p lem en ta l not at all apparent—e.g.: “It appears that an
p lea d in g . amercement proceeding may properly be initiated
by motion in the principal action.” Vitale v. Hotel
am en d m en t = (1) a legislative change in a stat­ California, Inc., 446 A.2d 880, 882 n .l (N.J. Su­
ute or constitution, usu. by adding provisions not per. Ct. 1982).
in the original; or (2) the correction o f an error Amerciament and merciament are archaic vari­
or the supplying o f an omission in process or ants. See a ffeer.
pleadings. This noun may take either to or of,
usually the former—e.g.: “The continuing epi­ B r i t i s h i s m s . Throughout
A m e r ic a n is m s a n d
sodes o f protest and dissent in the United States this book Americanisms are labeled “AmE” and
have their basis in the First Amendment to the Britishisms are labeled “BrE.” For guidance on
Constitution, a great safety valve that is lacking distinctions not covered here, see Norman W.
in most other nations o f the world.” William O. Schur, English English (1980); Norman Moss,
Douglas, Points o f Rebellion 3 (1970). British /American Language Dictionary (1984);
and Martin S. Allwood, American and British
a m en ity. See am en a b ility . (1964). For differences in editorial style, compare
The Chicago Manual o f Style (14th ed. 1993) with
a mensa et thoro (lit., “from board and bed”) is Judith Butcher, Copy-Editing: The Cambridge
a standard phrase in canon law denoting a decree Handbook (2d ed. 1981).
o f divorce— now generally outmoded because it
does not permit remarriage— that was the fore­ a m ica b le ; a m ia b le. The former we borrowed
runner of m odem judicial separation. (Such a from Latin, the latter from French; but the two
divorce is distinct from the later divorce a vinculo forms are at base the same word. Useful d if f e r ­
matrimonii, which does allow remarriage.) The e n t i a t i o n has emerged to set these words apart,

LATINISM seems little justified today. “This was however. Amiable applies to persons <an amiable
only a divorce a mensa et thoro, equivalent to judge>, amicable to relations between persons
the m odem judicial separation and infrequent at <an amicable settlem ents
that.” (Eng.)/ “In Barber v. Barber, the Supreme
Court held that a wife could sue in federal court a m ica b le a ctio n . See fr ie n d ly suit.
in Wisconsin on the basis o f diversity o f citizen­
ship to enforce a New York state court decree a m icu s b r ie f. One amicus brief, two amicus
granting her a divorce a mensa et thoro” The briefs—not amici briefs. E.g., “An aberration of
phrase divorce from board and bed is sometimes the norm occurred in Chadha: both petitioner
used instead. See d iv o r c e . Chadha and the respondent Justice Department
were allowed to reply to the amici briefs [read
a m e rce = (1) to fine; (2) to punish; or (3) to hold amicus briefs]” Barbara H. Craig, Chadha: The
liable. Today, it is little more than a pretentious Story o f an Epic Constitutional Struggle 104
l e g a l is m — e.g.: “To treat that clause as though it (1988). See a m icu s cu ria e .
were a redundant or an insubstantial part o f the
agreement is to flout familiar experience o f the a m icu s cu ria e ; fr ie n d o f th e co u rt. The Latin
readiness o f juries to amerce insurance companies phrase is well established, and is not likely to be
[read hold insurance companies liable].” Watson replaced in legal writing by its l o a n t r a n s l a -
52 amid(st)

TION, friend o f the court. At times lawyers have curiae, is primarily journalistic; it appears in
forgotten the role of the amicus curiae—“one who, many newspapers and journals with a general
not as [a party], but, just as any stranger might, appeal. E.g., “In a friend-of-the-court brief, the
for the assistance o f the court gives information home builders say that permitting lawsuits for
o f some matter o f law in regard to which the court damages would show that the Supreme Court
is doubtful or mistaken, rather than one who recognized 'limits on local regulatory powers that
gives a highly partisan account o f facts.” New destroy private property rights.’ ” Wall St. J., 9
England Patriots Football Club, Inc. v. University Jan. 1985, § 2, at 25. Even this translated phrase,
o f Colorado, 592 F.2d 1196, 1198 n.3 (1st Cir. however, must baffle the lay reader not familiar
1979) (ellipses omitted). with court practice. The translation is therefore
Amicus-curiae practice is less restricted in the o f limited value. See l o a n t r a n s l a t i o n s .
U.S. than in England, where “it is customary to The plural o f amicus curiae is amici curiae.
invite the Attorney General to attend, either in Frequently the singular is wrongly used for the
person or by counsel instructed on his behalf, to plural: “The practice is particularly used in the
represent the public interest, [although] counsel U.S. Supreme Court, where organizations deeply
have been permitted to act as amicus curiae [read interested in an area o f constitutional law . . .
amici curiae?] on behalf o f professional bodies will frequently petition for and be granted permis­
(e.g., the Law Society)” ( CDL). In the U.S., virtu­ sion to participate as amicus curiae [read amici
ally anyone with interests affected by the litiga­ curiae].” Arthur A. Lef!7 The Leff Dictionary o f
tion, or indeed with political interest in it, may, Law, 94 Yale L.J. 1855, 2012 (1985)./ “The utili­
when represented by counsel, be approved as an ties may seek to present their views as amicus
amicus curiae. curiae [read amici curiae], and leave to do so
Amicus is frequently used as an elliptical form is here granted.”/ “Counsel for respondents, as
o f amicus curiae. E.g., “This amicus believes in amicus curiae [read amici curiae], assert that
an absolute prohibition o f the practice.”/ “The conclusion as their principal argument before this
court also rejected the state’s contention that court.”
since the United States is only an amicus, it The singular is pronounced /d-mee-kds-kyoor-
cannot ask for affirmative relief.” Amicus also ee-ll and the plural /d-mee-kee-kyoor-ee-il or !d-
serves as an elliptical adjective: “Texas also failed mee-see/. Another acceptable pronunciation o f the
to seek intervention or file an amicus brief in a first word— a common pronunciation in AmE—is
Second Circuit case directly reviewing the con­ lam-3-kssl.
tract rates.”
Amicus is sometimes even used as an ellipsis a m id (st); in th e m id st o f; m id; ’m id . Amid and
for amicus brief: “In its amicus, El Salvador ex­ amidst are somewhat learned, to the degree that
plains its interest in securing the ultimate reloca­ they have been branded bookish or quaint. The
tion of the pilot station o f what it views as its charge may be unjust, for amid(st) has its uses
national carrier.” Airline Pilots Ass'n Infl, AFL - (see a m o n g (b )). AmE prefers amid, and BrE
CIO v. TACA Inti Airlines, S.A., 748 F.2d 965, amidst, in AmE, amidst is considered a literary
971 (5th Cir. 1984). This ellipsis is perhaps too word. In the midst o f is an informal and wordy
elliptical, because amicus does not readily suggest equivalent. The preposition mid is poetic in all but
itself as a shortened form o f amicus curiae brief traditional phrases (e.g., midnight, midstream) or
or amicus brief, either o f which should have ap­ scientific uses; if the word is appropriate, how­
peared in the quoted sentence. See a m icu s b rie f. ever, mid is better than ymid.
Although the modern trend is to place the
phrase before the noun it modifies, amicus curiae a m ok ; am u ck . Usage authorities once held
is often used as a p o s t p o s it iv e a d j e c t iv e — e.g.: firmly to the idea that amuck is preferable to
“The conclusion o f the Administrator, as ex­ amok— solely on the mistaken notion that amuck
pressed in the brief amicus curiae, is that the is older in English and amok (though a better
general tests point to the exclusion o f sleeping transliteration o f the Malaysian word) was a late-
and eating time o f these employees from the work­ coming “didacticism.” In fact, both forms date
week and the inclusion o f all other on-call time.”/ from the 17th century. And, in any event, amok
“When he represents no new questions, a third is by far the more common spelling today—e.g.:
party can contribute usually most effectively and “[T]here are important exceptions— exceptions
always most expeditiously by a brief amicus cu­ that ought sufficiently to demonstrate the possi­
riae and not by intervention.” See p o s t p o s it iv e bility that the linguistic sense of a profession
ADJECTIVES. can run amok.” Lon L. Fuller, Legal Fictions 22
Friend o f the court, as an equivalent o f amicus (1967)./ “RICO is a statute run amok and no one
anachronism 53

is beyond its reach.” Rick Boucher, Trying to Fix or (3) indicative o f love. Amative is a n e e d l e s s
a Statute Run Amok, N.Y. Times, 12 March 1989, Amatory = of, relating to, or expressing
v a r ia n t .

at 2F. sexual love ( W10).

among. A. And amongst. Forms in -st, such a m ortise. See a m ortize.


as whilst and amidst, are generally a r c h a i s m s .
Amongst is no exception: in AmE it is pretentious a m o rtiz a tio n ; a m ortizem en t. The first is the
at best. E.g., “Schools that have offered special regular and preferred form.
composition courses for pre-law students (Illinois,
Utah, Wayne State, Loyola o f Chicago, amongst a m o rtize ; a m ortise. The -ize form is preferred
[read among] several others) have generally found in both AmE and BrE.
them well received and oversubscribed.” George
D. Gopen, The State o f Legal Writing, 86 Mich. L. a m ortizem en t. See a m o rtiza tio n .
Rev. 333, 355 (1987).
Amongst seems more common and more tolera­ a m ou n t; n u m b er. The former is used o f mass
ble in BrE, where it carries no hint o f affectation: nouns, the latter o f count nouns. Thus we say
“The first count o f the declaration stated that “an increase in the amount o f litigation” but “an
plaintiff had contracted to perform in the theatre increase in the number o f lawsuits.” See COUNT
for a certain time, with a condition, amongst oth­ NOUNS AND MASS NOUNS.
ers, that she would not sing or use her talents
elsewhere during the term without plaintifFs con­ a m ou n t o f, an. See s y n e s is .
sent in writing.” (Eng.)
Elmer A. Driedger wrote: “To divide amongst a m p h ib io u s, adj., is frequently used in reference
seems to be a little clearer than to divide among; to mariners who work both ashore and on ship.
in all other cases among is probably to be pre­ E.g., “Our past decisions have enunciated several
ferred.” The Composition o f Legislation 78 (1957). factors to be evaluated in determining whether
His first statement is unfounded: divide amongst an amphibious employee becomes the ‘borrowed’
provides no gain in clarity, and no difference in employee o f other than his payroll employer.”/
connotation or denotation. “The cases all involve the delicate question
B. With Mass Nouns. Among is used with count whether the federal interest in an amphibious
nouns and amid with mass nouns. Thus one is worker’s personal injury claims is sufficiently
among people but amid a furor. (See COUNT strong to justify federal courts’ supplanting state
n o u n s a n d m a s s n o u n s & amid(st).) In the fol­ law with federal common law of admiralty.” This
lowing sentences, among is misused for other extended sense o f amphibious probably had its
prepositions: origin in the phrase o f World War II vintage,
• “The DEA agents discovered large quantities o f amphibious forces.
marijuana among the shipment [read amid the
shipment].1* a m p h ib o lo g y ; a m p h ib o ly . The form amphibol­
• “Incompetence in writing English is widespread ogy ( = quibble; ambiguous wording) predomi­
among [read in] the legal profession.” Robert nates. E.g., “The term ‘and/or’ as ordinarily used
W. Benson, The End ofLegalese, 13 N.Y.U. Rev. is a deliberate amphibology.1* The other form is a
L. & Soc. Change 519, 570 (1984-1985). NEEDLESS VARIANT.
• “Among [read With] the president’s contingent The corresponding adjective is amphibological.
are Mr Robert Mosbacher, commerce secretary,
and around 20 top US executives.” Stefan Wags- a m u ck . See am ok ,
tyl, Japan Promises to Boost US Imports, Fin.
Times, 8 Jan. 1992, at 1. am use. See b em u se,
• uAmong the evidence [read A part o f the evi­
dence] cited in support o f the theory is Brawn- an. See a.
er’s denial o f any concrete knowledge o f plain­
tifFs intentions.” a n a ch ro n ism ; p a ra ch ro n ism ; p r o c h r o n ism ;
arch a ism . All these words indicate that, in some
C. And between . See between (a ).
respect, the time is out o f joint. An anachronism
amoral. See immoral. is any error in chronology, or something that
is chronologically out o f place. “We rejected the
amorous; amatory; amative. Amorous = (1) longstanding but anachronistic rule o f Lincoln.7
strongly moved by love and sex; (2) enamored; “Professor Wigmore termed the privilege against
54 anachronistic

adverse spousal testimony ‘the merest anachro­ a n a ly s t; a n a ly z e r ; a n a ly z is t. The last two are
nism in legal theory and an indefensible obstruc­ NEEDLESS VARIANTS.
tion to truth in practice/ ” Parachronism is a
NEEDLESS VARIANT of anachronism. a n a l y t i c ( a l ) . No d if f e r e n t ia t io n has surfaced
A prochronism is a reference to an event at an between the two forms. The shorter generally
earlier date than the true date. An archaism is serves better, although occasionally the longer
something archaic, outmoded, or old-fashioned. form may be more euphonious, as where another
E.g., “Death statutes have their roots in dissatis­ -al adjective is proximate: “In most cases, the
faction with the archaisms o f the law that have court treats the validity o f a particular allegedly
been traced to their origin in the course o f this charitable trust as a legal issue to be decided
opinion.” See a r c h a i s m s . largely by analytical and historical methods.”/
“But the use o f civilian treatises by English and
a n a ch ro n istic; a n a ch ro n o u s; a n a ch ro n ic. American analytical and historical jurists had led
The last two are n e e d l e s s v a r ia n t s . to attempts to force common-law institutions and
doctrines into civilian molds which retarded their
a n a co n d a cla u se. See M o th e r H u b b a rd effective development” (Roscoe Pound).
clau se.
a n a ly tic a l ju r is p r u d e n c e = a method o f legal
an alects; an alecta. In both AmE and BrE, the study that examines lãw purely in its existing
English plural (analects) is preferred to the Greek structure (without resort to its history), classifies
(analecta). its terms and concepts, and denies the law any
validity unless it derives from or is sanctioned by
a determinate sovereign. E.g., “Austin, the father
an alog. See an alogy,
o f English analytical jurisprudence, viewed all
law as essentially a command o f the sovereign
a n alogism . See an alogy.
power.” H.G. Hanbury, English Courts o f Law 15
(2d ed. 1953).
a n a log ou s; a n a log ica l. These words mean dif­ An adherent to this view o f the law is typically
ferent things. Analogous Id-nal-d-gdsl = similar referred to as an analytical jurist— e.g.: “Early
in certain respects. The word should be avoided in this century English and American analytical
where similar suffices; the two are not perfectly jurists produced a good deal o f scholarship that
synonymous. resembles the work o f legal science in a number
Analogical /an-d-loj-i-kdl/ = of, by, or express­ o f ways, and a revival o f analytical jurisprudence
ing an analogy. E.g., “In Anglo-American law we is now going on in the common law world.” John
do not think of analogical development o f the H. Merryman, The Civil Law Tradition 85 (1969).
traditional materials o f the legal system as inter­ See j u r i s t . Cf. s o c i o l o g i c a l j u r i s p r u d e n c e .
pretation.” Roscoe Pound, An Introduction to the
Philosophy o f Law 51 (1922; repr. 1975). a n a l y z a t i o n , a pseudo-learned variant o f analy­
sis, has no place in the language— e.g.: “Defense
a n a logy ; a n a log (u e); an alogism . An analogy is counsel was then provided with ample opportu­
a corresponding similarity or likeness; in logic, nity to cross-examine to expose any weaknesses
analogy means “an inference that, if two or more in Wagenhofer’s credentials or process o f analyza­
things are similar in some respects, they must be tion [read analysis]” U.S. v. Bartley, 855 F.2d
alike in others.” 547, 552 (8th Cir. 1988).
An analogue is a thing that is analogous to
something else. E.g., “The Esso decision suggests The former is AmE, the latter
a n a ly z e ; a n a ly s e .
that analogues to such traditional equity doc­ BrE. Analyse does not merit a bracketed sic when
trines as laches, election of remedies, and estoppel quoted in an American publication, as here: “The
may justify a finding o f peculiar circumstances.” dust jacket tells us: ‘In this book, the author
(The spelling analog should be confined to techni­ brings to bear empirical evidence and legal theory
cal contexts involving physics or computers.) in a critical comparison o f English and American
Analogism is a term meaning “reasoning by discovery, and analyses [sic] and evaluates the
analogy.” differences between the two systems.” Book Re­
view, 61 Tex. L. Rev. 929, 929 (1983). See sic (Á).
analyse. See an alyze.
a n a ly z e r ; a n a ly z is t. See a n a l y s t .
an alysis. See an aly zation & in th e final a n a l­
ysis. ananym . See a n o n y m .
and 55

anarchy, -ic(al), -ial; anarchism, -ist(ic). An­ possibility o f such emergencies, ought ever to
archism is a political theory antithetical to any have the option o f making use o f them.” The
form o f government; anarchy is a state or quality Federalist No. 36, at 223 (Alexander Hamilton)
o f society. Only anarchy ( = lawlessness, disorder) (Clinton Rossiter ed., 1961).
has pejorative connotations. Here anarchism is • “This period gave rise to what came to be called
misused for anarchy: “Unless we find a better the law merchant, and saw the hesitant but
way o f working together, sheer anarchism [read unmistakable beginnings o f the law o f intellec­
anarchy] will result.” The preferred adjectival tual and industrial property. And it is to these
forms are anarchic and anarchist times that we may trace in recognizable form
the patterns o f m odem shipping and its associ­
a n cesto r. Only in legal writing does the term ated law.” Grant Gilmore & Charles L. Black,
ancestors include parents as well as grandparents Jr., The Law o f Admiralty 5 (2d ed. 1975).
and others more remote. Nonlawyers do not gen­ • “Acts o f Parliament after all are very real laws,
erally think o f their fathers and mothers as ances­ as lawyers would unhesitatingly agree. And
tors. See a s c e n d a n t ( b ). Acts o f Parliament have a very tangible ‘exis­
te n c e /” P.S. Atiyah, Law and Modern Society
a n c i l l a r i t y = the quality o f being ancillary or o f 1-2 (1983).
maintaining ancillary jurisdiction (in the U.S., • “Despite errors and failings, Blackstone did
jurisdiction assumed by the federal courts for manage to put in brief order the rank weeds of
purposes o f convenience to the parties, although English law. But even his picture was partial
the reach o f the jurisdiction exercised extends and defective, like a dictionary that omitted all
beyond the constitutional or congressional grant). slang, all dialect, all colloquial and technical
Ancillarity is not recorded in any dictionary, but words. And even this imperfect guide was not
is gaining ground as a legal term— e.g.: available to colonials before the 1750s.” Law­
rence M. Friedman, A History o f American Law
• “Hence it seems quite clear that as concerns
21 (2d ed. 1985).
venue there are what may be termed ‘degrees
• “The judges allowed shifting uses; that is, where
of ancillarity.’ ” Lesnik v. Public Indus. Corp.,
a fee was to pass from one person to another
144 F.2d 968, 976 (2d Cir. 1944).
upon a contingency. And they allowed springing
• “Many early decisions seem to go beyond this
uses . . . .” J.H. Baker, An Introduction to En­
limited concept o f ancillarity.” Chicago & North
glish Legal History 326 (3d ed. 1990).
W. Transp. Co. v. Atchison, Topeka & Santa Fe
Ry., 367 F. Supp. 801, 805 n .l (N.D. 111. 1973).
See SU PERSTITIO NS (D).
• “[T]here may be three possible bases for the
B. F or or. Oddly, and is frequently misused for
exercise o f federal subject-matter jurisdiction
or where a singular noun, or one o f two nouns, is
over these third-party claims: admiralty, diver­
called for. E.g., “Prisoners’ cases are usually heard
sity, or ancillarity.” Joiner v. Diamond M Drill­
before federal magistrates and district judges.”
ing Co., 677 F.2d 1035, 1038 (5th Cir. 1982).
This construction wrongly implies that magis­
• “The concept o f ancillarity may explain deci­
trates and district judges go together—that is,
sions which hold that actions to enforce an ali­
that they hear such cases at the same time. The
mony or custody decree are outside the diversity
true sense of the sentence is “magistrates or dis­
jurisdiction if the decree remains subject to
trict judges.”
modification by the court that entered it.” Lloyd
Sloppy drafting sometimes leads courts to rec­
v. Loeffler, 694 F.2d 489, 492 (7th Cir. 1982).
ognize that and in a given context means or, much
to the chagrin o f some judges— e.g.: “We give
and. A. Beginning Sentences. It is rank su­
our language, and our language-dependent legal
perstition that this coordinating conjunction can­
system, a body blow when we hold that it is
not properly begin a sentence. And for that mat­
reasonable to read ‘or’ for 'and.9” MacDonald v.
ter, the same superstition has plagued but, q.v.
Pan Am. World Airways, Inc., 859 F.2d 742, 746
But this transitional artifice, though quite accept­
(9th Cir. 1988) (Kozinski, J., dissenting).
able, should be sparingly used; otherwise the
For the opposite mistake—or for and— see the
prose acquires an undesirable staccato effect.
third bulleted quotation under a n c i l l a r i t y . For a
The very best legal writers find occasion to
fuller discussion o f the ambiguities caused by
begin sentences with and— e.g.:
these words, see o r (a ).
• “There are certain emergencies o f nations in C. In Enumerations. Legal writers have a ten­
which expedients that in the ordinary state of dency, especially in long enumerations, to omit
things ought to be forborne become essential to and before the final element. To do so in legal
the public weal. And the government, from the writing is often infelicitous: the reader is jarred
56 and etc.

by the abrupt period ending the sentence and device to conceal rather than express meaning.”
may even wonder whether a part o f the enumera­ Employers3 Mut. Liab. Ins. Co. v. Tollefsen, 263
tion has been inadvertently omitted. One may N.W. 376, 377 (Wis. 1935) (per Fowler, J.). An­
occasionally omit and before the final element in other court has stated: “ [T]o our way o f thinking
an enumeration with a particular nuance in mind: the abominable invention and/or is as devoid o f
without and the implication is that the series meaning as it is incapable o f classification by the
is incomplete— rhetoricians call this construction rules o f grammar and syntax.” American Gen.
“asyndeton”; with and the implication is that the Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex.
series is complete. This shade in meaning is in­ Civ. App.— Beaumont 1938) (per Combs, J.).
creasingly subtle in modem prose. For examples These views, in retrospect, are more amusing
drawn from the writings o f Benjamin N. Cardozo, than insightful. And/or, though undeniably
Karl Llewellyn, and Gerald Gunther, see Bryan clumsy, does have a specific meaning (* and/or
A. Gamer, The Elements o f Legal Style 159-60 y = x or y or both). But, though the phrase saves
(1991). a few words, it “lends itself . . . as much to
Finally, on the question o f punctuating enumer­ ambiguity as to brevity . . . it cannot intelligibly
ations, the best practice is to place a comma before be used to fix the occurrence o f past events.” Ex
the and introducing the final element. See PUNC­ parte Bell, 122 P.2d 22, 29 (Cal. 1942). And/or
TUATION ( 0 ( 2 ) . “commonly mean[s] ‘the one or the other or b o th /”
Amalgamated Transit TJnion v. Massachusetts,
a n d etc. See etc. 666 F.2d 618, 627 (1st Cir. 1981). (See the quota­
tion under a m p h i b o l o g y .) This definition sug­
a n d h is ch ild re n ; a n d h e r c h ild re n . This gests the handiest rewording: a good way to avoid
phrase ought to be avoided in wills because it the term is to write unlawful arrest or malicious
gives rise to an interpretative dilemma: is the prosecution, or both, instead o f unlawful arrest
phrase one o f limitation, i.e., does it indicate the and/or malicious prosecution.
size of the estate given? Or is it one o f purchase, Sometimes and/or is inappropriate substan­
i.e., does it indicate a gift also to the afterborn tively as well as stylistically. Many types o f legal
children themselves? See w o r d s o f p u rch a se . documents have been spoiled by the indeci­
siveness o f and/or:
a n d h is h eirs; an d h e r h e irs. These phrases are
• a finding o f fact (“associate and/or employ”);
quintessential pre-20th-century t e r m s o f a r t —
• a pleading (“office and/or agent”);
pieces o f magical language— formerly necessary
• an affidavit (“fraud and/or other wrongful act”);
to create a fee-simple interest. They are no longer
• a will (“to Ann and/or John”);
necessary, as it is now possible to say, “I convey
• an indictment (“cards, dice, and/or dominoes”);
to you Blackacre in fee simple,” and the words
• a judgment (in an action that described the
will have that very effect.
plaintiff by the formula Jones and/or Jones,
Inc.).
an d /or. A. General Recom m endation. A legal
and business expression dating from the mid-19th Courts have not been kind to the word—e.g.: [T]he
century, and/or has been vilified for most o f its highly objectionable phrase and/or . . . has no
life— and rightly so. The upshot is that “the only place in pleadings, findings o f fact, conclusions o f
safe rule to follow is not to use the expression in law, judgments or decrees, and least o f all in
any legal writing, document or proceeding, under instructions to a jury. Instructions are intended
any circumstances.” Dwight G. McCarty, That to assist jurors in applying the law to the facts,
Hybrid “and/or ” 39 Mich. State B.J. 9 ,1 7 (1960). and trial judges should put them in as simple
Many lawyers would be surprised at how easy language as possible, and not confuse them with
and workable this solution is. See e ith e r (d ). this linguistic abomination.” State v. Smith, 184
B. A Little History. Lawyers have been amongP.2d 301, 303 (N.M. 1947).
and/or's most ardent haters, though many con­ Moreover, the term gives a false sense o f preci­
tinue to use it. The term has been referred to sion when used in enumerations: “In an enumera­
as “that befuddling, nameless thing, that Janus­ tion o f duties or powers, either conjunction is
faced verbal monstrosity, neither word nor generally adequate. If or is used, no one would
phrase, the child o f a brain o f someone too lazy seriously urge that if one enumerated duty or
or too dull to express his precise meaning, or too power is performed or exercised, the remainder
dull to know what he did mean, now commonly vanish; and if and is used, no one would say that
used by lawyers in drafting legal documents, an enumerated duty or power cannot be exercised
through carelessness or ignorance or as a cunning or performed except simultaneously with all the
A nfractuosity 57

others.” Elmer A. Driedger, The Composition o f “In probing discriminatory intent, the trial court
Legislation 79 (1957). may examine the history o f the employer’s prac­
C. Editing the H ieroglyph. Sometimes and/or tices, anecdotal evidence o f class members, and
ought to be replaced by and itself—e.g.: “There is the degree o f opportunity to treat employees un­
usually a blackboard, on which issues and/or fairly in the appraisal process.”
[read and] votes may be recorded.” Robin T. La-
koff, Talking Power: The Politics o f Language in an en t. Bernstein writes, “Except in legal usage,
Our Lives 122 (1990). (No one would seriously anent [= about] is archaic and semiprecious.”
suggest that both issues and votes must be re­ Theodore M. Bernstein, More Language That
corded on such a blackboard in a jury room.)/ “Mr Needs Watching 24 (1962). He could have omitted
Pearce and/or [read and] his publisher are to be except in legal usage and semi-.
congratulated for working so fast.” Joe Rogaly, Another usage critic (following Fowler) has
Behind the Man from Nowhere, Fin. Times (Week­ given somewhat narrower guidelines, for the term
end), 27-28 April 1991, at xviii. (If the book has is still sometimes used in Scotland: “[A]part from
come out promptly, then both the author and the its use in Scotch law courts, [anent] is archaic.”
publisher must have worked fast.) Margaret Nicholson, A Dictionary o f American-
At other times, and/or ought to be replaced by English Usage 25 (1957). Perhaps the best state­
or—e.g.: “The legal disadvantages o f illegitimacy ment is that anent “is a pompous word and nearly
can mostly be avoided by making a will and/ always entirely useless.” Percy Marks, The Craft
or [read or] adopting the child . . . .” Glanville o f Writing 47 (1932).
Williams, The Sanctity o f Life and the Criminal The term was not uncommon through the first
Law 121 (1957). (No one would seriously suggest half o f the 20th century. E.g., “Anent [read With
that one could be put to an election between regard to] the dismissal, the bank’s attorney testi­
making a will and adopting a child—i.e., that one fied that . . . the memorial company had adver­
could not do both.) For dealing with the construc­ tised the property for sale on December 7.” Gandy
tion either . . . and/or, see e i t h e r (E ). v. Cameron State Bank, 2 S.W.2d 971, 973 (Tex.
D. Or/and. This reversal o f the words is a rare Civ. App.—Austin 1927). Today it occurs only
variant o f and /or with none o f the latter’s virtues, infrequently in legal writing, but examples o f it
and all its vices. Rather than hopelessly confuse can still be found: “The district court denied Fiat’s
readers by resorting to its pretended nuance, one motion to dismiss . . . and ordered the parties to
should abstain from it completely. resolve any dispute anent [read about or over]
service on that basis.” Boreri v. Fiat S.P.A., 763
a n d o th e r g o o d a n d v a lu a b le co n s id e r a tio n . F.2d 17, 19 (1st Cir. 1985).
This phrase, used in consideration clauses o f con­
tracts, is sometimes false, as when all the legal a n esth etic, n.; a n esth esia . An anesthetic (e.g.,
consideration for the contract given is mentioned ether) causes anesthesia (= loss o f sensation).
explicitly. The phrase should be avoided unless it AmE prefers these spellings, BrE anaesthetic, an­
serves a real function; that is, unless the rest of aesthesia.
the items o f consideration are too numerous and
individually trifling to merit specific inclusion, or a n esth etist; a n e sth e sio lo g ist. Generally, anes­
unless the parties to the contract do not wish thetist will serve for “one who administers an
to recite the true price in a publicly recorded anesthetic.” The term dates from the late 19th
document. The drafter o f a contract should have century. Anesthesiologist, o f World War II vin­
some purpose in mind in using this phrase. For tage, refers specifically to a physician specializing
the distinction between good consideration and in anesthesia and anesthetics.
valuable consideration, see c o n s i d e r a t i o n ( d ).
or syntactic twisting and turn­
A n f r a c t u o s it y ,
a n d w h ich . See w h ich (c ). ing and winding, has been one o f the historical
banes o f legal prose. It was more common in the
a n ecd ota l; a n e cd o tic(a l). The first is standard; late 19th and early 20th centuries than it is today.
the other forms are n e e d l e s s v a r i a n t s . In refer­ Let us trace our gradual liberation from anfractu­
ence to evidence, anecdotal refers not to anec­ osity, while noting some modern throwbacks. The
dotes, but to personal experiences o f the witness following is a classic 19th-century example:
testifying. Leff trenchantly calls anecdotal evi­
Unless the code, by abolishing the distinction between
dence “a term o f abuse in assessing a social sci­ actions at law and suits in equity, and the forms of such
ence argument.” Arthur A. Leff, The Leff Diction­ actions and suits, and of pleadings theretofore existing,
ary o f Law, 94 Yale L.J. 1855, 2023 (1985). E.g., intended to initiate, and has initiated new principles of
58 angry

law, by which a class of rights and of wrongs, not before accept, and assign weight to evidence concededly
the proper subjects of judicial investigation and remedy, relevant, which, as the exclusive arbiters o f fact,
can now be judicially investigated and remedied, the facts
was the jury's sole function.” In that sentence,
stated in the plaintiffs complaint in this action, do not
constitute a cause of action, and the demurrer of the which has no clear antecedent, and therefore was
defendant to that complaint is well taken. has no clear subject; they refers (loosely) to the
Cropsey v. Sweeney, 27 Barb. 310 (N.Y. App. Div. 1858). jury.
When the syntax becomes so convoluted that it
Here, from 1919, is perhaps the quintessential
is unwieldy, or when the subject has become so
example o f what not to do syntactically:
far removed from the verb that readers no longer
Upon the petition of Armour & Co. of New Jersey, remember the subject when they reach the verb,
Armour & Co. of Texas, a foreign and domestic corpora­ it is time to break the sentence up into two or
tion, respectively, and F.M. Etheridge and J.M. McCor­ more tractable sentences. As Cardozo once wrote,
mick, of Dallas, Tex., having for its purpose the cancella­
“the sentence may be so overloaded with all its
tion of a contract between the city of Dallas, the Texas &
Pacific Railway Company, and the Wholesale District
possible qualifications that it will tumble down o f
Trackage Company, on the ground that it was void, be­ its own weight.” Benjamin N. Cardozo, Law and
cause illegal, and for temporary injunction restraining Literature, 52 Harv. L. Rev. 472, 474 (1939).
all parties thereto from performing said contract or any Chief Justice Rehnquist offers a solution that
portion thereof pendente lite, and alleging that the peti­ will still allow the occasional long sentence: “If a
tioners were taxpayers of the city of Dallas, and sued for
sentence takes up more than six lines o f type on
themselves and all other taxpayers in said city of Dallas,
Hon. Horton B. Porter, judge of the Sixty-Sixth district
an ordinary page, it is probably too long. This
court in Hill county, upon the sworn allegation that the rule is truly stark in its simplicity, but every draft
proceeding was a class suit, by fiat indorsed upon the I review is subjected to it.” William H. Rehnquist,
petition in Hillsboro, directed the clerk of the district The Supreme Court: How It Was, How It Is 299
court of Dallas county to file the petition and docket the (1987). See s e n t e n c e l e n g t h .
cause in the Fourteenth district court in Dallas county,
and upon the petitioners entering into a bond in the sum
of $10,000, conditioned as required by law, to forthwith
a n g ry takes the preposition at or with. The
issue the temporary injunction. phrase angry at is used in reference to things <she
City o f Dallas v. Armour & Co., 216 S.W. 222, 223 was angry at the judge's denial o f the injunction^
(Tex. Civ. App.—Dallas 1919). and angry with in reference to persons <he was
angry with the opposing counsel>. See m ad.
Perish the thought o f one idea to a sentence!
This phenomenon frequently occurs when one
a n g u ish m en t is a n e e d l e s s v a r ia n t o f an-
tries to sum up the entire case— the facts and
guish— e.g.: “The trial court award represented
the law—in one sentence. From 1984: “Here, the
special damages for medical, surgical, and hospi­
hazard—the scaffolding which was unsafe to work
tal and nursing expenses ($1,825.30), property
on until its guardrail was installed as planned—
damage ($425.00), . . . and general damages
was a temporary structure, not a part o f the ship
. . . for mental anguishment [read anguish], hu­
itself, its gear, or equipment, which was created
miliation, and embarrassment.” Pierrotti v. Loui­
and used entirely by the independent contractor,
siana Dep*t o f Highways, 146 So. 2d 455, 460 (La.
who both owned and controlled it.” And here, from
Ct. App. 1962).
1985:

Also of importance, without Ms. Stanlin’s testimony a n im a d v e rsio n was once a legal term meaning
that lawn mowers were actually missing from the Four “the act o f taking judicial cognizance [q.v.] or
Seasons store, it is doubtful that the evidence would have notice of.” Today it means “harsh criticism,” as
proved beyond a reasonable doubt that the delivery by
here: “In an Alabama case o f 1948, a mother who
the driver (even if he was Marshall) of two boxes, of
unknown content, showed that two lawn mowers, or any, was convicted o f murdering her newly bom child
were dropped off at Frederick Street, even though one of received a sentence o f twenty years' imprison­
the (perhaps previously discarded) boxes indicated that, ment; happily, the conviction was reversed on
at least at one time, a lawn mower had been contained appeal for lack o f evidence, but there was no
within it. animadversion upon the terrible sentence that
U.S. v. Marshall, 762 F.2d 419, 422-23
the trial court had thought fit to impose.” Glaii-
(5th Cir. 1985).
ville Williams, The Sanctity o f Life and the Crimi­
Frequently, anfractuosity leads to grammatical nal Law 31 (1957).
and syntactic blunders. E.g., “We further hold it
was reversible error to deprive the jury o f the an im a te (= to move to action) has been used as
opportunity to consider the opinions o f those who a substitute for actuate— e.g.: “While the evidence
best knew the person whose fate they were to may have shown that the action was animated by
determine, and with it, the opportunity to reject, malice, in the ordinary acceptation o f the term,
annexable 59

the proof fails to show any legal malice.” Like the acts specified; and (2) the intent to revoke—
motivate, animate is a serviceable replacement the animo revocandi [read animus revocandi].”
for actuate, the ready l e g a l i s m . See a c t u a t e . Just the opposite mistake appears here, the nomi­
native being used where the ablative belongs:
anim o . See a n i m u s ( b ). “There can be no conflict between these ambula­
tory instruments—these wills— until death, and
an im u s. A. Generally. Animus is a double- as the latter were destroyed animus revocandi
edged term. At times it is neutral, meaning “in­ [read animo revocandi], they thus never consti­
tention; disposition”— particularly the mental tuted wills under § 64-59, and never revoked the
element in some conduct. This is the generally 1938 and 1939 wills.”
accepted legal meaning in legal contexts in G.B. The same sorts o f errors occur with other
and occasionally in the U.S. E.g., “This doctrine phrases, such as animus testandi ( = testamen­
was overruled by statute in England, and the jury tary intent) and animo testandi (= with testa­
is now permitted to judge the whole case, and to mentary intent). “The admissibility o f such evi­
decide not merely upon the responsibility o f the dence for the purpose o f establishing the animo
publication, but upon the animus with which it testandi [read animus testandi] when offered for
was made.” ~~ the purpose o f supporting the writing as a testa­
More often in AmE animus denotes ill will, as if mentary disposition, is, in our opinion, the most
it were synonymous with animosity: “Appellant’s serious question involved in this case.” We can
lower salary was based on impermissible gender avoid these embarrassments by sticking to what
animus.7 “None o f these houses were hooked up we all know: English.
to city water and sewage lines until 1981; Camp­ O f course, the British seem to know their Latin
bell claims that this was due to racial animus better, and only rarely misuse animo for animus,
on the part o f city officials.”/ “Thomas won [the or vice versa. But they are apt to go off the deep
Senate’s] approval by 52-48 and said it was ‘a end in their proclivity for Latinisms: “The animus
time for healing, not a time for anger or for ani­ vicino nocendi may enter into or affect the concep­
mus or animosity.’ ” Aaron Epstein, Bush Nominee tion o f a personal wrong.” (Eng.)
Carries Closest Vote Since 1888, Philadelphia In­
quirer, 16 Oct. 1991, at 1-A. ann ex, n.; a n n e x a t i o n ; a n n e x m e n t ; a n n e x i o n .
B. Latinisms. The malevolent sense just men­ Annex = something annexed or attached, as an
tioned stems perhaps from the several Latin appendix or a wing o f a building. Annexation =
phrases denoting malicious intentions: “In my the act o f annexing or the state o f having been
opinion all the circumstances prove that the annexed. In the parlance o f property law, annex­
words were spoken without animus injuriandi ation refers to the point at which a fixture be­
[ = intent to injure]— even if they had the defama­ comes a part o f the realty to which it is attached.
tory meaning ascribed to them.” (S. Afr.) Similar Annexment and annexion are NEEDLESS v a r i a n t s
phrases are animus furandi ( = the intention to o f annexation.
steal), animo felonico (= with felonious intent),
and animus defamandi (= the intent to defame). annex (= to attach) appears more frequently in
These phrases are, happily, obsolescent if not BrE than in AmE, and in both far more frequently
obsolete. in legal than in nonlegal writing. “The facts are
Several neutral animus phrases have persisted, stated in the case, to which are annexed four
especially in the law o f wills, yet these l a t i n i s m s representative contracts.” (Eng.)
generally add nothing to analysis and muddy the Annex is more physical in connotation than at­
waters. We know something is amiss when law­ tach, and probably should not be used figura­
yers begin grammatically misusing Latin terms. tively: “The courts do, nevertheless, at times deny
For example, animo revocandi = with the intent validity to a condition annexed [read attached] to
to revoke (a will). In Latin, it is in the ablative a testamentary gift where the condition is calcu­
case (equivalent to adverbial uses in English), lated to influence the future conduct o f the bene­
here properly used: “It was generally held in com­ ficiary in a manner contrary to the established
mon-law courts that by the destruction, animo policy of the state.”
revocandi, o f a will containing a revocatory clause, Attach or annex is an unnecessary d o u b l e t :
a former preserved uncanceled will was thereby “The officer’s certificate, under official seal, must
revived.” In the following sentence, however, he attached or annexed [read must be attached]
animo revocandi is wrongly used as a noun to the will in form and content substantially as
phrase: “To effect revocation o f a duly executed follows.”
will, by any o f the methods prescribed by statute,
two things are necessary: (1) the doing o f one o f a n n e x a b le . So spelled.
60 annexation

a n n ex a tion ; a n n exm en t; a n n e x io n . See by a third party, such as the government or an


an n ex. employer. Pensioner sometimes suggests one who
lives off a very limited fixed income.
an n ih ila te is rather too strong a term for nullify
in legal contexts. ‘W here no execution issues a n n u l ; n u l l i f y . These words have much the same
within the prescribed time, the judgment is anni­ meaning (“to counteract the force, effectiveness,
hilated [read nullified].” See a n nu l. or existence of”). Annul more strongly suggests
abolishing or making nonexistent by legal action
a n n ota tion ; n ote; la w n o te ; ca se n o te . An anno­ <to annul a marriage>. E.g., “If at any time the
tation is a note that explains or criticizes (usu. seisin happens to be without a home it immedi­
a case), esp. to give, in condensed form, some ately returns to the transferor (or to his heirs
indication o f the law as deduced from cases and if he is dead), and all subsequent interests are
statutes, as well as to point out where similar annulled and destroyed.” Annul frequently ap­
cases can be found. In law, annotations appear in pears in the verbose phrase annul and set aside;
the Lawyers* Edition o f the United States Reports the last three words o f that phrase are unneces­
and in American Law Reports (ALR). Annotations sary. See DOUBLETS, TRIPLETS, AND SYNONYM-
usually follow the text o f a reported case. STRINGS.
A note or lawnote is a scholarly legal essay Nullify has the broader meaning, and generally
shorter than an article and restricted in scope, carries no necessary implication o f legal action.
usually written by a student for publication in a “The Eighth Circuit nullified a breach-of-contract
law review. In this sense note and lawnote are judgment obtained against the corporation in an
synonymous, the latter being slightly more spe­ Iranian court.”/ “The senator’s vote was not nulli­
cific. A casenote is so restricted in scope that it fied, but rather cast in the absence o f certain
deals only with a single case; lawnotes, in con­ information.” See s e t a s i d e (a ).
trast, tend to treat many cases in a general area
o f the law. So spelled— not annullment (a com­
a n n u lm e n t .
mon misspelling). See d i v o r c e (A ).
a n n ou n ce; an n u n cia te ; e n o u n c e ; en u n cia te.
Announce, the best known o f these terms, may a n n u n c ia te . See a n n o u n c e .
mean (1) “to proclaim”; (2) “to give notice o f”; or
(3) “to serve as announcer of.” Annunciate is a a n o i n t is sometimes misspelled annoint, as in
n e e d l e s s v a r i a n t , except in religious contexts. Gulf States Tel. Co. v. Local 1692, AFL-CIO, 416
Enunciate = (1 ) to formulate systematically; (2) F.2d 198, 201 (5th Cir. 1969).
to announce, proclaim; or (3) to articulate clearly.
Enounce is a n e e d l e s s v a r i a n t in sense (1) o f a n o m a l o u s ; a n o m a l i s t i c . Anomalous is the gen­
enunciate. eral adjective corresponding to the noun anomaly.
In reference to judicial opinions, announce Anomalistic should refer only to astronomical
means “to write for the majority.” E.g., “Mr. Jus­ anomalies. But legal writers occasionally misuse
tice Douglas announced the judgment o f the Court anomalistic for anamalous— e.g.: “This kind o f
and delivered the following opinion, in which the reasoning would inject into waiver proceedings
Chief Justice, Mr. Justice Black and Mr. Justice the anomalistic [read anomalous] proposition that
Reed concur.” Screws v. U.S., 325 U.S. 91, 92 waiver should be granted because the child is
(1945). ‘too good’ for placement in the youth correctional
facility.” In re Doe, 604 P.2d 276,279 (Haw. 1979).
an n oy. See aggravate.
a n o m i e ; a n o m y . The former spelling is pre­
an nu itan t; p en sion er. Annuitant — a benefi­ ferred; the adjective is anomic.
ciary of an annuity. E.g., “[A] contract to buy an
annuity was void where, at the time o f the con­ a n o n y m ( e ) ; a n a n y m . An anonym (preferably
tract, the annuitant had died, so that the annuity spelled without the final -e) is an anonymous
no longer existed.” G.H. Treitel, The Law of Con­ person. (See p s e u d o n y m .) An ananym is a
tract 249 (8th ed. 1991). pseudonym arrived at by spelling the author’s
Pensioner = a person receiving a pension. For name backward (as, hypothetically, Renrag for
some purposes the terms are interchangeable. Garner).
Yet annuitant has less disparaging connotations,
perhaps because the person it denotes has usually an sw er.To nonlawyers, this word denotes a reply
established the annuity, whereas a pensioner is to a question or a solution to a problem. In U.S.
generally the beneficiary o f a pension provided law, it usually refers to the first pleading o f a
antecedents 61

defendant addressing the merits o f the case. In th eir u se as sig n a ls, th ese te rm s are often vague
G.B., however, answer = (1) a reply to an inter­ w ith o u t som e specification o f the reference; th ey
rogatory; or (2) a response to a divorce petition. are gen era lly b e st avoided in CITATION OF c a s e s .

a n t e -, a n t i -. The prefix ante- means “before,” v.t., has become nothing more than an
a n tec ed e ,
and anti- “against.” Thus antecedent ( = some­ inflated and n e e d l e s s v a r i a n t o f precede, though
thing that goes before) and antipathy (= feelings the adjectives antecedent and precedent have dis­
against, dislike). In but one word, anticipate ( = tinct uses. In exalted prose, such as the passage
to consider or use before the due or natural time), following, it may be justified. “Language survives
ante- has been changed to anti-. In compound everything—corruption, misuse, ignorance, inep­
words, the prefix anti- may cause ambiguities. titude. Linking man to man in the dark, it brought
See a n t i m a r i t a l -f a c t s p r i v i l e g e & a n t i n u c l e a r man out o f the dark. It is the human glory which
p ro te ste r.
antecedes all others. It merits not only our homage
but our constant and intelligent study.” (Anthony
ANTE-, PRE-. See PRE-.
Burgess)

ante; supra; ubi supra; infra; post. Literally


ante means “before,” and supra “above.” Some Used as adjectives— e.g., to
a n t e c e d e n t; p r io r .

literalists therefore use supra for something qualify the term debt—these words are generally
higher up on the same page and ante for some­ inferior to earlier or preexisting. Like previous,
thing further afield, with corresponding conven­ prior may occasionally be justified; antecedent
tions for infra and post. That practice now has may on rare occasions be forgivable, but not here:
few adherents, at least in the U.S. “Until the bonds mature, a purchaser for value,
Both ante and supra are today used to refer to without notice o f their invalidity as between ante­
a preceding part o f the text—however far afield— cedent parties [read previous parties or predeces­
as in Usupra at 11.” Ubi supra was formerly used sors in interest], would take them discharged from
where supra now appears. It means “where all infirmities.”/ “An allegation o f special damages
above,” and really has no place in modem legal as a matter o f aggravation is a substantive allega­
writing. tion o f fact, and not an inference o f law resulting
Because supra is the more usual term, and from facts antecedently [read previously] stated.”
because it is desirable that we achieve uniformity The phrase antecedent to (= before) is a ludi­
on this point, the recommendation here is to use crous pomposity. “If the defendant has the right,
supra for general purposes, not ante. An addi­ when did it accrue to him? If at all, it must have
tional advantage o f supra is that it translates been antecedent to [read before] the finding by
directly into English. “See note 5 above” is En­ the plaintiff, for that finding could not give the
glish; “See note 5 before” is not. defendant any right.”/ “An alien in America, ante­
The U.S. Supreme Court is one o f few courts cedent to [read before] the revolution, was entitled
that distinguish between the signals supra and to all the rights and privileges o f an alien in
ante in usage; it also makes a distinction between England, and many more.” Cf. a n t e r i o r t o , p r e ­
v io u s to & p r io r to .
infra and post. The term ante is used to cite a
previous opinion published in the same volume o f But if the phrase is to be used, it should not
the U.S. Reports, whether or not that opinion is lose the particle to, as here: “Antecedent [insert to]
in the same case as that in which the citation this assigned Justice[’s—see f u s e d p a r t ic ip l e s ]
appears. For example, ante is used in a dissent to joining the Court, facets o f this controversy were
cite a page in the majority opinion. Supra is used here in In re Powers's Estate.” In re Estate o f
to refer either to earlier pages within the same Powers, 134 N.W.2d 148, 150 (Mich. 1965).
opinion or to a previously cited authority. The
Supreme Court uses post correlatively with ante, a n t e c e d e n t s (= background; record) is broader
and infra with supra. in AmE than in BrE, where it means “an accused
The phrases ut infra ( = as below) and ut supra or convicted person’s background, esp. any previ­
( = as above) are not current in legal writing, ous criminal record or evidence o f bad character.”
although they were common up to the mid-20th In legal writing in the U.S., this term may be
century. See ex ante & infra . used in reference to a witness as well as to an
All these Latin words— supra, ante, infra, accused: “Where the litigation is important the
post— should be used only as signals; they should character, reputation and antecedents o f the main
not replace ordinary English terms in prose. E.g., witnesses o f the adverse party should be investi­
“We discuss this argument infra [read below] and gated thoroughly.” Asher L. Cornelius, The Cross-
remand for the appropriate findings.” Even in Examination o f Witnesses 11 (1929). In such con­
62 Antecedents, A greement of Nouns with

texts, however, background would be a better case is not a suitable antecedent for a pronoun,
term. because the possessive makes the noun function­
A 19th-century usage critic stung this word ally an adjective. The parts o f speech o f an ante­
with a venom that has not lost its power: “This cedent and its referent must match. “Indeed, the
use of the word . . . is not defensible . . . [f]or in Court’s reading of the plain language o f the
meaning it is an awkward perversion, and in Fourth Amendment is incapable o f explaining
convenience it has no advantage. . . . [I]t is a even its own holding in this case.” What is the
needless absurdity. For if, instead of, What do subject o f is, the antecedent o f its? The intended
you know o f his antecedents? it is asked, What antecedent is court, but the possessive court's is
do you know o f his previous life? or, better, What merely an adjective modifying reading, and is
do you know o f his past? there is sense instead of incapable o f acting as the antecedent o f it, or as
nonsense, and the purpose o f the questions is the subject o f is. [Read Indeed, the Court in its
fully conveyed.” Richard G. White, Words and reading . . . . ] / “There may have been inimical
Their Uses, Past and Present 91-92 (2d ed. 1872). voices raised among the jury, such as the fore­
man's, who [read such as that o f the foreman,
A n teced en ts, A greem ent of N o u n s w it h . who] had just had an unpleasant brush with the
See concord (B). bailiff.” See a p p o s it iv e s (A), d e ic t ic t e r m s , p o s ­
s e s s iv e s (H) & it .
A nteced en ts, False. An antecedent is a noun D. R em ote Antecedêkits. See MISCUES (c) &
or noun phrase that is referred to by a pronoun. REMOTE RELATIVES.
When used correctly and effectively, antecedents
are explicitly mentioned, are prominent, and are a n te ce d e n t to. See a n te ce d e n t.
not far removed from the pronouns that substi­
tute for them. A variety o f problems can occur,
a n ted a te; p re d a te . Both words are so commonly
however, and some o f them are here discussed.
used that it would be presumptuous to label either
A. Ghostly A ntecedents. The problem o f nonex­ a n e e d l e s s v a r ia n t . One sees a tendency to use
istent antecedents occurs frequently when a word antedate in reference to documentary materials,
such as this or it (see d e ic t ic t e r m s ) is intended and predate in reference to physical things and
to refer, not as it should to a preceding noun, but
historical facts. E.g., “The origin o f the rule pre­
to the action accomplished in the verb phrase.
dates our dual federal-state court system.” The
E.g., “They are also told that X., a doctor employed d if f e r e n t ia t io n is worth enhancing.
by defendant, will vaccinate anyone who wishes
to have this done.” (What is the noun that acts as
a n tem ortem ; a n tem orta l; p re m o rta l; p re-
antecedent o f this? We may supply the antecedent
m ortem ; p re m o rtu a ry . Antemortem corres­
vaccination, but the sentence itself should supply
ponds to postmortem, q.v. Premortal = (1) oc­
the antecedent.)/ “To some degree, though not
curring before the time when human mortality
quantified, defendant’s sales have declined; but
was assumed (i.e., quite ancient); (2) occurring
quantification is not required because plaintiff is
immediately before death. Premortem is a n e e d ­
not seeking damages therefor [for what?].” (The
l e s s v a r ia n t o f antemortem and premortal. Pre­
writer intended—but failed—to say that plaintiff
mortuary = occurring before the funeral. The
is not seeking damages for the decline in sales.)/
distinction between antemortal and premortal (in
“The foregoing sufficiently answers, if any be nec­
sense (2)) is that antemortal refers to any time
essary [read if any answer be (or is) necessary],
before death, whereas premortal refers to the time
the suggestion that the statute is unconstitu­
immediately preceding death.
tional.” See a n t ic ip a t o r y r e f e r e n c e (C).
B. False Attraction. In the context o f problems
with antecedents, false attraction occurs when, a n ten u p tia l; p ren u p tia l. The latter is far more
instead o f referring to the subject, a pronoun such common in AmE today; antenuptial is the usual
as this or it refers to a noun appearing between term in BrE, however. It is bootless, then, to label
the subject and the pronoun. E.g., “Harrelson either a n e e d l e s s v a r ia n t . Oddly, antenuptial
nonetheless contends now that the admission o f does not appear in most English-language diction­
this testimony was reversible error because it aries. But it appears regularly in British legal
had been hypnotically induced.” What had been writing—e.g.: “[T]he husband was liable for her
hypnotically induced? The writer intended to con­ antenuptial debts.” O. Hood Phillips, A First Book
vey that the testimony, not its admission, had o f English Law 270 (3d ed. 1955). See p o stn u p ­
been induced by hypnosis. See s u b j e c t -v e r b tial.
agreement.
C. With Possessives. A noun in the possessive an tep en u ltim a te. See p en u ltim a te.
Anticipatory Reference 63

a n te rio r to for before is, like its various bombas­ bert & Cooke Contractors, [1951] 2 K.B. 937,
tic competitors, almost risible. It would be, alas, 942.
if some lawyers did not use it with a straight face. The poor usage is now seemingly ubiquitous—
E.g., “The authorities petitioner cites to the effect e.g.: “Generally the measure o f damages for a tort
that an express contract made anterior to [read is the amount that will compensate for all the
before] his entering upon his duties is essential to detriment proximately caused thereby, whether
a claim by an officer o f a corporation for compen­ it could have been anticipated [read foreseen] or
sation, are against rather than for him.” Cf. a n te ­ not.”/ “It is clear that the parties and the court
ce d e n t to, p r io r to & p r e v io u s to. still anticipated [read expected] that further reme­
dial proceedings would take place before the court
the attribution of human
A n t h r o p o m o r p h is m , approved any proposal.”/ “It is not clear that the
qualities or characteristics to things, is not un­ defendant might reasonably have anticipated
common in the language o f the law. One common [read foreseen] being haled into court in Loui­
manifestation of this phenomenon occurs in siana.”
phrases referring to what a statute does or does The use of anticipated in the sense “eagerly
not contemplate— e.g.: “The statutory provision awaited” constitutes still further corruption of the
contemplates a result contrary to the statute as a word. E.g., “The Supreme Court decided nearly
whole.” Or this, a form o f HYPALLAGE: “A con­ twenty cases during its 1983-84 term relating to
cerned jurisdiction is one that in view either of the Fourth Amendment; among these, the ‘good-
its thinking about the particular substantive issue faith exception’ cases were perhaps the most an­
raised or of its more general legal policies, can be ticipated and controversial.”
taken to have expressed some interest in regulat­ The following sentences illustrate the correct
ing an aspect o f the multistate transaction in use o f the word: “The trailer court was not built,
question.” nor was the sewage plant, at the time the action
Occasionally, anthropomorphism reflects poor was started, and thus the injunction was sought
style, as when a writer refers to the mindfulness against an anticipated nuisance.” (Here antici­
o f pellucidity: “Notwithstanding the fact that it is pated = considered before the appropriate time.)/
centered chiefly in construction, pellucidity in le­ “A spendthrift clause restrains the power o f a
gal writing is not unmindful of discriminating beneficiary to anticipate his right to income or
diction and choice figures o f speech.” There are perhaps to principal.” (Here anticipate = to pre­
no choice figures of speech in that sentence. clude by prior action.)

a n ticip a to ry ; a n ticip a tiv e . The former is stan­


a n tia ircra ft. See vow el clu sters.
dard in phrases such as anticipatory breach.

a n ticip a ta b le ( = that can be expected or antici­ is the vice of refer­


A n t ic ip a t o r y R e f e r e n c e
pated) is listed in the OED, with one citation from ring to something that is yet to be mentioned.
1872, but appears in neither W2 nor W3. “Stone’s Thus a sentence will be leading up to the all-
statement . . . was elicited to dispel the antici­ important predicate, but before reaching it will
patable suggestion that the government might be refer to what is contained in the predicate. The
using threats o f prosecution to induce Schbley to reader is temporarily mystified. E.g., “Conflict of
testify favorably.” U.S. v. Fusco, 748 F.2d 996, laws is the study o f whether or not, and if so, in
998 (5th Cir. 1984). The quoted sentence illus­ what way, the answer to a legal problem will be
trates the loose usage of anticipate, q.v.; foresee­ affected because the elements o f the problem have
able would have been the better word. See contacts with more than one jurisdiction.” This
-ATABLE. sentence would better read: “Conflict o f laws is
the study o f whether the answer to a legal problem
a n ticip a te = (1) to take care o f beforehand; to will be affected because the elements o f the prob­
preclude by prior action; forestall; or (2) to expect. lem have contacts with more than one jurisdic­
Sense (2) has long been considered a s l ip s h o d tion; and, if so, how the answer will be affected.”
e x t e n s i o n ; it should be avoided in formal legal Only rarely can anticipatory reference be used
writing. Lord Evershed, M.R., once addressed this in a way that does not disturb the reader— e.g.:
question, saying: “[T]he liking [that] many per­ “We think it is clear— and no party disputes this
sons appear to have for the use o f words having point—that the statutory commitment o f review
twice as many syllables as the more natural and o f FCC action to the Court o f Appeals affords
proper word to use has, in fairly recent times, this court jurisdiction over claims o f unreasonable
undoubtedly led to the use o f the word anticipate delay.” For innocuous examples with personal
when the correct word is expect.” Jarman v. Lam­ pronouns, see the second paragraph in (c) below.
64 Anticipatory Subjects

The vexatious examples, which are far more com­ dently o f the scope o f his response to the auditor’s
mon, occur in a variety o f forms. request for information, the lawyer may have as
A. As do . “Texas, as do most jurisdictions, recog­ part o f his professional responsibility an obliga­
nizes three general theories o f recovery under tion to advise the client concerning the need for
which a manufacturer o f a defective product may public disclosure.”
be held liable under strict liability principles.”
(One must either put as do most jurisdictions A n t ic ip a t o r y S u b j e c t s . See e x p l e t iv e s .
after the verb, or change the as do to like.)/ “Law
professors, as do [read like] state court judges, a n t i c l i m a c t i c is the correct form; anticlimatic is
produce a body o f writing that can be analyzed to a solecism. See c l i m a c t i c .
discern their political philosophies.” See l i k e (a ).
A related error occurs with have: “The court, as like noncompete, is a n e e d l e s s
a n tic o m p e te ,
have [read like] the parties, construes this motion v a r ia n to f noncompetition— e.g.: “Defendants
as one for judgment notwithstanding the verdict.” Kentile . . . by adopting . . . the anticompete
B. Noun R eferences. “Kramer made, among [read noncompetition] provision . . . have partici­
others, the following untrue and misleading state­ pated . . . in a contract . . . in violation o f 15
ments o f material fact.” [Read Kramer made the U.S.C. § 1.” Golden v. Kentile Floors, Inc., 475
following untrue and misleading statements o f F.2d 288, 290 (5th Cir. 1973)./ “Berkeley argues
fact, among others.]/ “In an action, inter alia, to that it would be a disservice to the shopping
recover [read In an action to recover, inter alia,] center to allow Drug Fair to obtain the benefit
moneys allegedly due, plaintiff appeals.”/ “Mr o f the anticompete [read noncompetition] clause.”
Hytner is a director who knows how to keep the Berkeley Dev. Co. v. Great Atlantic & Pac. Tea
pot on the boil; whether you agree with them Co., 518 A.2d 790, 796 (N.J. Super. Ct. 1986).
or not, he makes his points with boldness and
panache.” John Gross, A Badly Brought-Up a n tila p s e s ta tu te . See l a p s e s t a t u t e .
Bunch o f Girls, Sunday Telegraph, 15 July 1990,
at ix. (Reverse the positions o f them and his a n t i m a r i t a l -f a c t s p r i v i l e g e . This is an obtuse
points.) name for the evidentiary privilege allowing a
C. Pronouns. “The defense o f itself is without a spouse not to testify about “marital facts,” i.e.,
doubt one o f the foremost concerns o f any nation.” intimate facts relating to the marriage. The
[Read A nation’s self-defense is without doubt one phrase antimarital facts = facts whose disclosure
o f its foremost concerns.]/ “The formidable diffi­ tends to harm the marriage. The prefix anti-
culty involved in its definition and measurement causes the problem, for the privilege is not “anti­
is partially responsible for the lack o f attention marital.” Yet the disclosure o f the facts is thought
to quality.” ( Its has no clearly identifiable anteced­ to be “antimarital.” The ambiguity caused by the
ent in the sentence just quoted; only at the end prefix disappears when an alternative name for
o f the sentence do we realize that quality is the the privilege is used (e.g., privilege against ad­
referent.)/ “Even if he construed the evidence most verse spousal testimony, spousal privilege, or mar­
favorably to the state, a reasonable juror should ital privilege). The first o f these alternative ver­
have doubted that the left side o f the safe was sions is used by the Supreme Court in Trammel
within the building.” (Reverse the positions o f he v. U.S., 445 U.S. 40 (1980).
and a reasonable juror; and consider making the
reference nonsexist. See s e x is m (A).)/ (Opening a n t i n o m y ; a n t i m o n y . These words are not to be
sentence o f an opinion:) “After a hearing at which confused. Antinomy = a contradiction in law or
he and his office manager testified, appellant logic; a conflict o f authority. This is the word used
Reehlman, an orthopedic surgeon, was adjudged in legal contexts— e.g.: “The law was taken to be
in contempt for disobeying a subpoena.” (Recast complete and self-sufficient, without antinomies
the sentence so that he and his follow Reehlman.)/ and without gaps, wanting only arrangement, log­
“Assuming it applies to claims based on injunctive ical development o f the implications o f its several
relief, the doctrine o f res judicata would not bar a rules and conceptions, and systematic exposition
suit based on acts o f the defendant that have o f its several parts.” Roscoe Pound, An Introduc­
occurred subsequent to the final judgment as­ tion to the Philosophy o f Law 19 (1922; repr.
serted as a bar.” (Reverse it and the italicized 1975)./ “ [H]e has even more difficulty in absorbing
noun phrase.) See a n t e c e d e n t s , f a l s e (A). the notion that antinomies among the principles
Occasionally an anticipatory reference by pro­ o f legal morality may be encountered in the design
noun is acceptable, but only where the “anteced­ o f legal institutions.” Lon L. Fuller, The Morality
ent” follows the reference closely: “Making himself o f Law 240 (rev. ed. 1969).
understood is the writer’s first task.”/ “Indepen­ Antimony is rather arcane, meaning “a brittle
anyone 65

silvery-white metallic element, used esp. in rections as to the validity o f the decree absolute
alloys” (COD). and is anxious [read eager] to know what her
present status is.” (Eng.)/ “Defense counsel in
a n tin u cle a r p ro te s te r is technically ambiguous, death cases are anxious [read eager] to retain the
though everyone should know what is intended. scrupled jurors that prosecutors seek to exclude.”
For the literally minded, however, it might refer
to “a protester denouncing the antinuclear cause,” any. A. Singular o r Plural. Any may be either
instead o f “a protester espousing the antinuclear singular or plural. Here is an example o f the
position.” Thus it might be preferable to write (rarer) singular use: “Consider whether any o f the
nuclear-energy (or -weapon) protester or antinu­ presidential statements is inconsistent with the
clear advocate. See p rotest. modern Court's claims.” In such contexts any is
elliptical for anyone, q.v.
a n tip a th y takes against, to, toward, or for. The B. In Legislation. Any is greatly overworked in
writer o f the following sentence haplessly inserted statutes < if any person shall commit any action
one o f the few unidiomatic prepositions: “J.W. has upon any other person>. Usually, replacing any
focused on the ‘terrible plight o f the American with the indefinite article a or an results in
Indian' as a stratagem to publicize his antipathy heightened readability with no change in
©/‘ [read antipathy toward] government in general meaning.
and, ludicrously, socialism in particular.” C. A nd all . See a l l (C).

an tisu it ( = o f or relating to a court order prohib­ The word all precisely captures the
a n y a n d a ll.
iting the filing o f another lawsuit against the sense 99 out o f 100 times. The one other time, it
same party or making the same claim) is a mid- merely captures the sense. See d o u b l e t s , t r ip ­
20th-century legal NEOLOGISM that remains unre­ lets, AND SYNONYM-STRINGS.
corded in most English-language dictionaries.
E.g., “Where the two courts involved are a state a n y h o w ( = in any way; in any manner) is, in
and a federal court, special attention should be AmE, considered colloquial— almost dialectal—
given to such an antisuit injunction.” Blanchard for anyway or nevertheless. E.g., “He understood
v. Commonwealth Oil Co., 294 F.2d 834, 839 (5th the right to remain silent, but decided to talk
Cir. 1961)./ “Ordinarily antisuit injunctions are anyhow [read anyway].”
not properly invoked to preempt parallel proceed­ In BrE, however, the word does not seem to
ings on the same in personam claim in foreign strike readers as such a casualism— e.g.: “[I]n
tribunals.” Laker Airways Ltd. v. Sabena, Belgian many cases it is not for one moment expected
World Airlines, 731 F.2d 909,915 (D.C. Cir. 1984). that a contracting party will actually perform
in person, and when the contracting party is a
a n tith etic(a l). The longer form has become es­ corporation this would anyhow be a physical im­
tablished in the phrase antithetical to and in possibility.” P.S. Atiyah, An Introduction to the
most other contexts. The shorter form should be Law o f Contract 283 (3d ed. 1981).
avoided as a n e e d l e s s v a r i a n t . Antithetical =
exhibiting direct opposition. E.g., “We believe that a n y m ore. Unless it appears in a negative state­
requiring domestic litigants to resort to the Hague ment <the courts have no such requirement any­
Convention to compel discovery against their for­ m ore^ this word is dialectal in the sense “nowa­
eign adversaries encourages the concealment o f days”— e.g.: uAnymore, [read Nowadays or These
information— a result directly antithetical to the days] the price o f housing is outrageous.”
express goals o f the Federal Rules and o f the
Hague Convention.” (Directly antithetical verges a n y on e. A. And any one . In reference to per­
on r e d u n d a n c y .) The phrase should not be used sons, anyone should be spelled as one word. For­
as a mere synonym o f opposed, a slightly broader merly it was written as two words; now, however,
word. the unification o f the phrase is complete.
Yet sometimes the phrase is wrongly made one
an titru st. So written—without a hyphen. word when, not meaning “anybody,” it should be
two: “A question might arise as to anyone [read
A n ton P ille r o rd e r. See case r eferen ces (C). any one] or all o f these legitimate ‘conceivables.' ”
Any one = any single person or thing (of a
a n x iou s. This word most properly means “un­ number).
easy; disquieted; worried.” To use the word as B. A nyone . . . they. See c o n c o r d (B) & s e x i s m
a synonym for eager is to give in to s l i p s h o d (A).
e x t e n s i o n — e.g.: “The wife seeks the court's di­ C. Anyone else9s. See e l s e ’s & p o s s e s s iv e s (G).
66 anyplace

a n y p la ce (= anywhere) is not in good use. The a p (p )a n a g e . Though in today’s French this term
word is vastly inferior to anywhere. is spelled apanage, in the French o f the 16th
Any place ( = any location) should always be century it was spelled with two -p-s. We borrowed
two words <at any place>. the word from the French early in the 17th cen­
tury, and the OED notes that the spellings have
a n y th in g ; a n y th in g. The distinction is some­ been “equally common” in English. The OED fa­
times important in legislative d r a f t i n g . Any vors apanage, whereas W3 favors appanage. The
thing implies an opposition to any person. Any­ latter certainly appears more English, and on that
thing is the far more general word meaning basis alone might be deemed preferable.
“whatever thing.” In its literal and historical sense, appanage
!ap-d-nij/ means “a grant (as o f lands or money)
a n y th in g to th e c o n tr a r y c o n ta in e d h e r e in made by a sovereign or a legislative body for
n o tw ith sta n d in g . See n o tw ith s ta n d in g a n y ­ the support o f dependent members o f the royal
th in g to th e c o n tra ry c o n ta in e d h e re in . family” (W3). Because Americans are not saddled
with such burdens, the term is purely figurative
an ytim e, adv., = at any time; whenever. E.g., in AmE, meaning “a customary or rightful endow­
‘Anytime a seller rents back from a buyer, an ment” (W3).
interim occupancy agreement should be com­
pleted.” Dian Hymer, Seller Rent-Back Can Bene­ a p p a ra tu s has the plural forms apparatus and
fit Both Sides, San Francisco Examiner, 25 Oct. apparatuses. The former is a Latin plural and the
1992, at F -l. Some writers consider this term a latter an English plural. When referring to more
casualism, but it is highly convenient and has— than one apparatus in Latin, write apparatus.
for whatever reason—gained more widespread ac­ When using English, however, use apparatuses.
ceptance than anymore (in positive contexts) and See PLURALS (A).
anyplace. Cf. a n y m ore & a n y p la ce . Apparati is an example o f HYPERCORRECTION—
e.g.: “Her testimony indicates that she had defi­
ap an age. See a p (p )a n a g e. nite ideas as to where and how these apparati
[read apparatuses] were to be used . . . .” Clarke
ap a rt from . See a sid e from . v. O’Connor, 435 F.2d 104, 107 (D.C. Cir. 1970)./
“The court attempted to establish a procedure for
a p ex forms the plurals apexes and apices. The determining whether a doctor could disconnect
English plural— apexes—is preferred. life-sustaining apparati [read apparatuses] from
other patients.” Linda F. Gould, Right to Die Leg­
a p o lo g y ; a p o lo g (u e ); a p o lo g ia . Apology, in its islation, 39 Mercer L. Rev. 517, 523 (1988).
general sense, applies to an expression o f regret
for a mistake, usually with the implication of
a p p a re n t is frequently misused in the press, and
guilt. It may also refer to a defense o f one’s posi­
sometimes in legal writing, in reference to fatal
tion, a sense shared with apologia. The latter
maladies. “Cardinal Cody died this morning o f an
should preempt this meaning for purposes o f DIF­
apparent heart attack.” One does not die o f an
FERENTIATION. An apologue is an allegory that
“apparent” heart attack. [Read Cardinal Cody
conveys a moral. ( Apolog is not recorded in the
died this morning, apparently o f a heart attack.]
dictionaries and should be avoided. For analogous
For the sense o f apparent in heir apparent, see
forms, see a n a log y (for analog) & ca ta lo g (u e ).)
h e ir (b ).
ap ostasy; a p osta cy . The latter spelling is mis­
taken, the original Gk. word being apostasia. E.g., a p p a re n t a u th o rity ; o ste n sib le a u th ority .
“Would he then have embraced and defended the Both refer to the authority that an agent appears
Donovan apostacy [read apostasy] with the same to have by virtue o f the principal’s conduct—and
generosity with which he yielded to the Camara that third parties might reasonably assume that
majority in Barlow?” Maurice Kelman, The the agent actually has. The usual phrase today,
Forked Path o f Dissent, 1985 Sup. Ct. Rev. 227, in BrE and AmE alike, is apparent authority.
245.
a p p ea l, n. A. Idiom s. In AmE, cases are said to
a p o ste rio ri. See a p rio ri. go on appeal; in BrE, the idiom under appeal is
common. E.g., “Their Lordships are o f opinion
A p o s t r o p h e s . See p u n c t u a t io n (a ). that the decision under appeal is not in accor­
dance with that principle.” (Eng.) The British
a p p al(l). The standard spelling is appall. phrase appeal allowed is equivalent to the Ameri-
appellant 67

can reversed. See a p p e a l a l l o w e d , a l l o w & o n a p p e a l s , adj. In jurisdictions that have a court o f


a p p e a l. appeals— as opposed to a court o f appeal—the
Where American writers would refer to an ap­ alternative wording is appeals court, not appeal
peal from a judgment, British writers typically court. E.g., “ [A] federal appeals court in Philadel­
refer to an appeal against a judgment—e.g.: phia ruled last August that the OMB officials
“Again, in the case o f Harris in 1952, the speeches didn’t have the authority to do so.” Stephen Wer-
were postponed until after the House had inti­ miel, Supreme Court Will Review OMB’s Powers,
mated that his appeal against conviction for lar­ Wall St. J., 16 May 1989, at B7. Even so, the term
ceny would be allowed.” H.G. Hanbury, English appellate is usually more natural-sounding in
Courts o f Law 78-79 (2d ed. 1953). AmE.
B. A nd certiorari; review . In referring to con­ O f course, where, as in England, the name o f
sideration by the U.S. Supreme Court o f lower- the intermediate appellate court is the Court o f
court and state-court judgments, many American Appeal, the phrase appeal court is entirely
lawyers make the mistake o f calling the genus by proper—e.g.: “Within a week, the High Court de­
the name o f one species; that is, they refer to cided that Lord Young, the trade secretary, should
appeal when they mean to include certiorari as publish and refer to the Monopolies and Mergers
well. In fact, though, appeal is rare in the U.S. Commission an inspectors’ report on the takeover;
Supreme Court. See Charles A. Wright, The Law then a unanimous three-judge appeal court de­
o f Federal Courts 775-76 (5th ed. 1994). The more cided he need do no such thing.” Curbed in the
accurate term for the genus—the word that in­ Courts, Economist, 28 Jan.-3 Feb. 1989, at 56.
cludes certiorari as well as appeal—is review. See
r e v i e w (a ). a p p e a r . The phrase it would appear is invariably
inferior to it appears or it seems. There is no need
a p p e a l, adj. See a p p e l l a t e & a p p e a l s , adj. for the modal verb would in this construction,
unless a hypothetical subjunctive is intended. “As
vb. Depending on the context, appeal
a p p e a l, o f the middle o f this century, it would appear
may be either intransitive or transitive in AmE. [read it appears, or, depending on the sense, ap­
Usually one appeals from a judgment—e.g.: “De­ peared] that the extent o f present development
fendant appeals from a verdict and judgment along these lines has [or had] been somewhat
against him in an action for libel.”/ “We find no overstated.” See w o u l d & s u b j u n c t i v e s .
error in the decree appealed from.7 “Plaintiff ap­ On the difference between appear and make an
pealed from an order sustaining separate demur­ appearance, see a p p e a r a n c e , m a k e a n .
rers o f the defendants on the ground that the
complaint does not state a cause o f action.” ap p earan ce, m ake an; ap p ear, v.i. The phrase
Nearly as often, however, appeal is used transi­ make an appearance contains a BURIED VERB (ap­
tively in AmE—e.g.: “Appellant appeals his con­ pear), but uncovering the verb may shift the con­
viction o f possessing a firearm after having been notation slightly. Many American lawyers believe
convicted of a felony.”/ “The United States appeals that a party makes an appearance by filing a
the suppression o f evidence obtained during a paper in court or by having a lawyer present, but
warranted search.”/ “Nolen appeals the award o f that to appear means to show up personally in
an injunction against him.” court. Some have used this rationale to avoid
In BrE— in which the transitive use has been changing make an appearance to appear in court
obsolete since the late 16th century—one appeals rules.
against a lower court's decree. E.g., “The architect Even so, actual usage supports the idea that
appealed against the master’s order to Chapman appear is equivalent to make an appearance—
J., who allowed his appeal and set aside the mas­ e.g.: “In most cases, the husband and wife both
ter’s order.” (Eng.)/ “An erroneous judgment may desire divorce. If the husband gets his divorce in
stand, and acquire an undeserved authority, Nevada and the wife appears there—which means
merely because the losing party does not appeal that an arrangement is made to have a lawyer in
against it . . . .” Carleton K. Allen, Law in the Nevada represent her—there will be no trouble.”
Making 313 (7th ed. 1964). Max Radin, The Law and You 68 (1948).

a p p e a l a l l o w e d ; a p p e a l d i s m i s s e d . These Brit­ a p p e l l a n t ; a p p e a l e r ; a p p e l l o r . Perhaps few


ish phrases are equivalent to the American readers have seen or heard any term other than
phrases judgment reversed and judgment af­ the first. Appealer has not gained currency and
firmed. See JUDGMENTS, APPELLATE-COURT. should not be introduced as a fancy variant o f
appellant, properly pronounced ld-pel-dntl.
a p p e a le r . See a p p e l l a n t . Appellor is an archaic term from English law
68 appellate

meaning "one who accuses o f crime, demands In the following sentence, however, it appears
proof o f innocence by wager o f battle, or informs to have been used merely as a fancy variant of
against an accomplice [by approvement, q.v.]” the more usual pertain: “There is a compelling
( OED). E.g., “Appeals o f felony continued in use reason why district courts should not be divested
as a means o f recovering stolen goods, or of o f jurisdiction over matters ‘incident to or apper­
achieving the execution o f an aggressor; but the taining [read pertaining] to an estate’ regarding
appellor ran the risk o f having to fight a battle, pending probate proceedings.”
or of being severely punished if the appeal failed.”
J.H. Baker, An Introduction to English Legal His­ a p p e tite ; a p p e te n ce ; a p p e te n cy . In all but sci­
tory 71 (3d ed. 1990). entific contexts, appetence and appetency are
NEEDLESS VARIANTS o f appetite.
a p p ella te; a p p ellan t, adj.; a p p ea l, adj.; a p p e l­
lative. W3 records appellant as having been used a p p lica b le . A. A nd appliable; applyable.
adjectivally in phrases such as appellant jurisdic­ These two variants are incorrect forms. Applica­
tion, perhaps mainly by nonlawyers. In legal writ­ ble, the correct form, is properly accented on the
ing, however, the adjective corresponding to the first, not on the second, syllable.
noun appeal is invariably appellate. B. A nd applicative; applicatory. The last two
Appellate is defined by Johnson (1755) as “the forms are NEEDLESS v a r ia n t s o f applicable. Ap­
person appealed against,” the meaning now given plicative is also a n e e d l e s s v a r ia n t o f applied,
appellee. But today the word is used only as an as in the phrase applicative psychology.
adjective. C. Is applicable to . This construction is almost
In BrE especially, appeal itself functions as an always inferior to the simple verb applies—e.g.:
adjective in contexts in which Americans would “The doctrine is not applicable [read does not
write appellate— e.g.: “The judges (at least in En­ apply] here.”
gland) are not elected by the people, nor are they
accountable to anybody (other than appeal courts) a p p lica n t; a p p lic a to r ; a p p lier. An applicant is
for their decisions.” P.S. Atiyah, Law and Modern “one who applies for something (as a position in
Society 14 (1983). See c o u r t o f a p p ea l(s). a firm).” Applicator = (1) a device for applying a
Appellative, adj., is a specialized grammatical substance, or (2) one who applies a substance.
term. Appellative interrogation is a variant (and Applier is a n e e d l e s s v a r ia n t o f applicator.
fairly pompous) name for rhetorical question, q.v. When applicant is used merely for movant (as
As a noun, appellative = term, name. E.g., “It is a in American federal courts), the latter term is
matter o f common knowledge that the appellative preferable. (See a p p lica tio n .) In G.B., one who
‘revenue laws* is never applied to the statutes seeks a writ o f habeas corpus or judicial review
involved in these classes o f cases.” by means o f mandamus, prohibition, or certiorari
is termed an applicant.
ap p ellee is pronounced /ap-a-lee/, not Id-pel-eel.
a p p lica tio n . In some jurisdictions, this term is
a p p ellor. See ap p ellan t. merely a variant name for motion. Where that is
so, motion is the better term.
a p p en d ix es; a p p en d ice s. Both are correct plu­
ral forms for appendix, but appendixes is prefera­ ap p ly . See fo llo w .
ble in nontechnical contexts.
a p p ly a b le. See a p p lica b le (a ).
ap p erta in ; p erta in . Some d if f e r e n t ia t io n is
possible. Both take the preposition to, but apper­ a p p o in to r , despite its odd appearance, is the
tain usually means “to belong to rightfully” <the accepted spelling o f the legal correlative o f ap­
privileges appertaining to this degree>, whereas pointee.
pertain usually means “to relate to; concern” <the
appeal pertains to defendant’s Fifth Amendment a p p o site . See apt.
rights>.
Here appertain is correctly used: “The general point out the same persons or
A p p o s it iv e s
principle seems to be that jurisdiction over an things by different names, usually in the form o f
inchoate crime appertains to the state that would explanatory phrases that narrow in on the precise
have had jurisdiction had the crime been consum­ meaning o f a prior more general phrase. Thus, in
mated.” (Eng.)/ “The ancient remedy o f a bill o f the sentence “My brother Brad is a musician,”
peace originated in and appertained to the juris­ Brad is the appositive o f brother. Usually, in
diction o f the court o f chancery.” phrases less succinct than my brother Brad (in
appraise 69

which Brad is restrictive), the appositive is set off mas— e.g.: “He himself [no commas before or after]
by commas or parentheses: “Plaintiff’s decedent, testified that the hiring requirement o f a college
John Doe, was killed in a plane accident,” or, “The degree was unrelated to performance on the job.”
appellee in this case (XYZ, Inc.) has counter­
claimed against the appellant.” In these hypothet­ a p p ra isa l; a p p ra isem en t. W3 treats these as
ical sentences, John Doe is an appositive o f dece­ variants; the OED definitions suggest some diver­
dent, and XYZ, Inc. is an appositive o f appellee. gence in meaning. Both may mean “the act o f
Two problems crop up with appositives. appraising, the setting o f a price, valuation.” But
A. With Possessives. An appositive should appraisement, when connoting the acts o f an offi­
match its antecedent syntactically. Here is the cial appraiser, is the term usually used in refer­
correct use o f an appositive with a possessive ence to valuation o f estates; it appears far more
antecedent: “A cannot confer on C his, A ’s, right frequently in legal than in nonlegal texts.
to possess and deal with the chattel for a partner­ The more broadly applicable term appraisal is
ship purpose.” (The appositive is unnecessary, also frequent in legal texts, in figurative as well
however; see MYTH OF PRECISION.) as literal senses. E.g., “The order, in my view, is
Having either an antecedent or an appositive too strong, too broad, and not fine-tuned enough
that is possessive (and therefore adjectival) in its appraisal o f the statutory language, the
matched up with a nominal mate creates awk­ legislative history, and the congressional
wardness, as in the following sentences: “In this purposes.”/ “The court’s appraisal o f appellant’s
case, appellant challenges the district court’s claim o f prosecutorial vindictiveness must adhere
grant of T.J. Stevenson & Co.’s (Stevenson) motion to the principles established by the Supreme
[read (Stevenson's) motion] for summary Court in Blackledge v. Perry."
judgment.”/ “In his petition, Wagner misrepre­ Appraisal commonly appears in the writing o f
sented to the court that federal jurisdiction be­ lawyers but is more a part o f the everyday lan­
came apparent during plaintiff's, Davis, [read guage. Ironically, however, Fowler classified it
plaintiff Davis's] closing argument.”/ “We hold among those words “that have failed to become
that the Appeals Council had the power to reopen really familiar and remained in the stage in which
the Administrative Law Judge’s (ALJ) [read the average man cannot say with confidence off­
(ALJ's)] decision . . . .” Cieutat v. Bowen, 824 hand that they exist” (MEU1 14). Since he wrote
F.2d 348, 350 (5th Cir. 1987). that, however, appraisal has become the standard
Here are two other examples o f appositives that term in BrE as well as in AmE, largely because
are needlessly awkward: “Appellee-plaintiffs Don­ o f the American influence. Appraisal is now pre­
ald and Doris Taylor’s property was damaged by ferred in all ordinary contexts, unless the conno-
floods in the summer o f 1975.” [Read The property tative distinction frequently given to ap­
o f the appellee-plaintiffs, Donald and Doris Tay­ praisement is desired.
lor, was damaged . . . . ] / “The scope o f your brief As with many other pairs o f variant word terms,
should not be affected by the scope of your oppo­ here the vice o f in e l e g a n t v a r ia t io n may tempt
nent, the appellant's brief [read by the scope o f the writer. E.g., “The inventory and appraisement
that o f your opponent, the appellant].” See POSSES­ will then be filed by the attorney in the executor’s
SIVES (G). name with the clerk o f court, who will record
B. P unctuation. This problem has been touched them. The purpose o f the inventory and appraisal
on earlier in this entry. Generally, commas (or, [read appraisement] is to serve as the basis upon
less frequently, parentheses) must frame apposi­ which the executor makes his accounts and fur­
tives except when the appositive is restrictive. nishes information concerning the estate to inter­
Thus a person might write my brother Blair to ested persons; however, the appraisal [read ap­
distinguish Blair from another brother (say, praisement] is conclusive upon no one.”
Brad). But if one had only one brother, the refer­
ence would be to my brother, Blair. a p p ra isa l v a lu a tion , though fairly common in
One telltale signal that the appositive is restric­ corporate-law contexts in AmE, is illogical and
tive is the definite article the preceding the noun redundant.
(e.g., the maxim nulla poena sine lege is one gener­
ally respected by civilized nations). a p p ra ise; a p p rise. The first means “to valuate,”
When commas are omitted in nonpossessive the second “to inform.” In these sentences ap­
phrases, the effect is that o f a r u n -o n s e n t e n c e : praise is used for apprise: “Doctors have an obliga­
“Plaintiffs offered the testimony o f Jesus Leon an tion to keep their patients appraised [read ap­
airport mechanic.” (A comma should appear after prised ] o f their condition [conditions makes better
the name Jesus Leon.) sense, because not all patients’ conditions will be
An emphatic appositive is never set off by com­ the same].”/ “The objection nowhere appraised
70 appraisement

[read apprised] the trial court that Ford Motor fied LATINISM that Leff aptly calls “insufferably
was complaining that the inquiry be limited.”/ fancy.” Arthur A. Leff, The Leff Dictionary o f Law,
“Cementation were fully appraised [read ap­ 94 Yale L.J. 1855, 2046 (1985). The simpler words
prised] o f the requirements and responsibilities used in the definition are preferable.
o f the main contract.” Greater Nottingham Co­
operative Society Ltd v. Cementation Piling & a p p r o b a tio n ; a p p ro v a l; a p p ro v e m e n t. There
Foundations Ltdy [1989] 1 Q.B. 71, 95, [1988] 2 is no generally accepted distinction between the
All Eng. Rep. 971, 981. first two words, apart from the observation that
A rarer mistake is for apprise to be misused for the first is more unusual and dignified. Follett
appraise: “The discussion thus far should indicate suggests that we restrict approbation to a favor­
the limited value o f superficial observation in able response on a particular occasion and use
apprising [read appraising] the effects o f appel­ approval for a general favorable attitude. Wilson
lant’s mental illness.” Here apprise is correctly Follett, Modern American Usage 72 (1966). E.g.,
used: “It does not follow that because an officer “Again expressing our approbation o f this doc­
may lawfully arrest a person only when he is trine, we conclude that the proof tendered should
apprised o f facts sufficient to warrant a belief that have been admitted.” Follett’s distinction would
the person has committed or is committing a suggest that approval be used here: “This extreme
crime, the officer is equally unjustified, absent view has never met the approbation [read ap­
that kind o f evidence, in making any intrusions proval] o f the bar,-eith er in England or in
short o f an arrest.” America, and is repudiated by the great majority
o f reputable practitioners.” See d isa p p ro b a tio n .
a p p ra isem en t. See a p p ra isa l. Rarely does approbate justifiably supersede ap­
prove— e.g.: “It must follow that all arranged or
a p p re cia te = (1) to fully understand; (2) to in­ Sikh marriages are a priori void, unless the par­
crease in value; or (3) to be grateful for. The last ties knew each other beforehand or approbated
meaning began as a s l ip s h o d e x t e n s io n but is [read approved] the marriage afterwards.” (Eng.)
now established. For a legal nuance o f the verb approbate, see
a p p ro b a te a n d re p ro b a te .
a p p reh en d ; co m p re h e n d . Apprehend = (1) to Approvement is an old term with two quite
seize in the name o f the law; to arrest <to appre­ distinct meanings at common law: (1) “the prac­
hend a criminal>; or (2) to lay hold o f with the tice o f criminal prosecution by which a person
intellect ( OED). It should not be used as a sup­ accused o f treason or felony was permitted to
posed FORMAL WORD for believe, as here: “We ap­ exonerate himself by accusing others and escap­
prehend [read believe] that it is unnecessary at ing prosecution himself” (Black's); and (2) “the
this time to cite authority in support o f the right conversion to his own profit, by the lord o f the
in equity to maintain class suits.” Comprehend = manor, o f waste or common land by enclosure and
(1) to understand, grasp with the mind, or (2) to appropriation” ( OED).
include, comprise, contain.
a p p r o b a to r y ; a p p ro b a tiv e . Approbatory is the
a p p re h e n sio n does not always mean “fear,” its standard form.
common lay meaning. It frequently takes on nom­
inal senses corresponding to the verb appre­ a p p r o p r ia b le is the adjective corresponding to
hend—e.g.: “In the law o f torts, one o f the neces­ appropriate, v.t.— not appropriatable. E.g., “[T]he
sary ingredients of an assault is apprehension Preissers have argued lack o f standing on the
by the plaintiff o f the imminent contact.” Here part o f the objectors and have contended that
apprehension refers merely to perception, not to they are entitled to decrees, irrespective o f the
fear or anxiety. See a p p reh en d . question o f availability o f appropriatable [read
appropriable] water.” In re Application for Water
a p p rise; a p p rize. See a p p ra ise. Rights ofPreisser, 545 P.2d 711, 712 (Colo. 1976)
(en banc). See -a t a b l e .
a p p ro is an abbreviated form o f approval, in
phrases such as goods on appro. It is appropriate a p p ro p ria te , v.t.; e x p ro p ria te . The verb appro­
for telegrams but not for legal prose. priate may mean (1) “to give to a particular person
or organization for a specific purpose” g o v e r n ­
a p p ro b a te a n d re p ro b a te (= to accept and ment-appropriated moneys>; or (2) “to take from
reject), used in the context that one may not a particular person or organization for a specific
accept the benefits of a legal document while purpose.” The first sense is the more usual in
challenging some of its conditions, is an unjusti­ AmE (and better known to the nonlawyer), per­
apropos (of) 71

haps because it is better to give than to receive. support actively and explicitly. The word connotes
Following are examples o f sense (2), the lawyer’s action as well as attitude.
sense: “Under this authorization she withdrew
from the bank various sums o f money, a consider­ a p p ro v e m e n t. See a p p ro b a tio n .
able amount o f which she evidently appropriated
to her own use without any accounting to him.”/ a p p r o v in g ly c ite d is awkward for cited with
“The only matter that has been urged before us approval. “Judge Rubin found that neither o f two
is whether defendant may lawfully be restrained kinds o f contracts met the Howey test for an
from appropriating news taken from bulletins is­ investment contract, a finding approvingly cited
sued by complainant, for the purpose o f selling it [read cited with approval] in Moody v. Bache &
to defendant’s client.” Co.” Other awkward variations have appeared:
Expropriate means (1) “to exercise eminent do­ “This suggestion, as illustrated by the Rogers de­
main over; to take, by legal action, private land cision, was approvingly used [omit approvingly] in
for public use”; or (2) “to transfer title to another’s the Commerce Clearing House Rewrite Bulletin o f
property to oneself.” See m is a p p ro p ria te . June 8, 1983.” The implication here is that, by
In sense (2), appropriate is distinguished from using a suggested legal theory, the user implicitly
expropriate because a private or semipublic entity approves that theory.
does the former, whereas a public governmental
entity does the latter. The difference between the a p p ro x im a te ; a p p ro x im a l; p ro x im a te . Ap­
terms is carefully observed by the courts. E.g., proximate = (1) closely resembling; (2) nearly
“[I]t makes no difference in determining the accurate; or (3) close together. Approximal = con­
amount to be awarded that the property was tiguous. Proximate = (1) very near; or (2) directly
appropriated and not formally expropriated related. See p ro x im a te .
Gray v. State Through Dep’t o f Highways, 202 So.
a p p ro x im a te ly is almost never as good as
2d 24, 30 (La. 1967).
about— e.g.: “These prior costs will be approxi­
mately [read about] $9,600.” See a b ou t.
a p p ro p ria tio n = (1) the exercise o f control over
property; (2) the bringing about o f a transfer of a p p ro x im a te ly a b o u t is a redundancy . See
title or o f a nonpossessory interest in the property; a b ou t.
(3) a public body’s act o f voting a sum o f money
for any o f various public purposes; or (4) the sum à p re n d re . See p rofits à p re n d re .
of money so voted.
In the following passage, a court has overstated a p r io r i; a p o s te r io r i. These terms are best left
the traditional significance o f the term (sense 1): to philosophical contexts. Very simply, a priori,
“Implicit in the meaning o f the word appropria­ the more common term, means “deductively; rea­
tion, when it comes to competing and equal pos­ soning from the general to the particular,” and a
sessory interests in property, is that the accused posteriori means “inductively; reasoning from the
person must have exercised ‘unauthorized’ control particular to the general, or from known effects
over the property.” Freeman v. State, 707 S.W.2d to their inferred causes.” Here a priori is used
597, 605 (Tex. Crim. App. 1986). See m is a p p r o ­ correctly, although the writer might better have
p riate. written deductive: “Witherspoon’s teaching is not
limited to that particular inference; it counsels
against any a priori judicial assumptions about
a p p rov a l. See a p p ro b a tio n .
the views o f veniremen.”
A priori becomes vague and confusing when it
a p p ro v e . A. Approve (of). Approve may be ei­ is used to mean “presumably” or “without detailed
ther transitive or intransitive, but in legal usage consideration,” as here: “But we cannot say, a
is usually the former (i.e., it usually takes no of). priori, without evidence, that there is not a suffi­
“In our system evidentiary rulings provide the cient rational distinction between such restau­
context in which the judicial process o f inclusion rants and other commercial establishments to
and exclusion approves some conduct as comport­ warrant a study.” This usage is a s l i p s h o d e x t e n ­
ing with constitutional guarantees and disap­ s io n .
proves other actions by state agents.” Nonlawyers frequently misuse a priori for
B. A nd endorse . The two should be distin­ prima facie.
guished. To approve, apart from the legal sense
of giving official sanction, is to consider right or a p ro p o s (o f). The two variations o f this phrase
to have a favorable attitude toward. The verb are generally inappropriate in legal writing in the
conveys an attitude or thought. To endorse is to place o f some English equivalent; they may prove
72 apt

serviceable in informal letters. Apropos of (sug­ a r b i t r a b l e ( = subject to or appropriate for arbi­


gested by the French phrase, à propos de) is well tration) is the correct form, not arbitratable.
established in English and is correct. Yet apropos Hence the corresponding noun is arbitrability—
may be used as a preposition to mean “concerning, e.g.: “The appeals-court panel said, ‘Since RICO
apropos of.” Hence there is generally no reason to claims are arbitratable [read arbitrable], we see
include of. The preposition to is always incorrect no reason here for limiting arbitratability [read
with apropos. arbitrability]. . . /" W a ll St. J., 31 Jan. 1991, at
B4. See -ATABLE.
apt; a p p osite. Both words mean “fit; suitable”;
a r b i t r a g e ; a r b i t r a t i o n . For the sense o f arbitra­
apposite, common in legal writing, is a formal
WORD.
tion, see the entry under that word. Arbitrage =
Apt for likely is a loose usage. As Fowler ex­ the simultaneous buying and selling o f currencies
plains, however, “in British usage apt always im­ or securities at different values in order to profit
plies a general tendency; for a probability arising by price discrepancies.
from particular circumstances, likely is the word”
a r b i t r a g e ( u ) r . Though English-language dic­
{MEU2 34).
The same distinction applies in the best Ameri­ tionaries generally put their entries under the
can usage. In the following sentences, apt is cor­ Frenchified arbitrageur, most journalists and
rectly used of general or habitual tendencies, courts now seem to prefer the naturalized form,
rather than a likelihood in a particular instance— arbitrager— e.g.: “The profit to the arbitragers was
e.g.: “The restaurant is extremely popular and the difference between the price paid by them for
generally apt to be crowded.”/ “Psychiatrists are the preferred [stock] and the amount received
more apt to see people face to face, sitting up by them upon the sale o f the common [stock].”
and once a week rather than the traditional five Austrian v. Williams, 103 F. Supp. 64, 92-93
times.” (Note the m is p l a c e d m o d i f i e r and the (S.D.N.Y. 1952)./ “The arbitragers who were in­
lack o f p a r a l l e l is m in the final clause. A less dicted yesterday were D. Ronald Yogada . . . .”
awkward structure, and one easier to take in at Kurt Eichenwald, Two Firms Are Charged as In­
a first reading, would be: “Psychiatrists are more siders, N.Y. Times, 3 Nov. 1988, at 29./ “Robert
apt to see people face to face, to see them sitting Freeman, 46, o f Goldman, Sachs & Co., was one
up, and to see them once rather than five times a o f the country’s most powerful takeover-stock
week.”) speculators, or arbitragers . . . .” Steve Swartz &
For a similarly problematic word, see lia b le. James B. Stewart, Kidder*s Mr. Wigton, Charged
as “Insider,* Ends His Long Ordeal, Wall St. J.,
21 Aug. 1989, at 1.
a q u o; a qua. A quo = from which. A court a
quo is a court from which a case has been removed a r b itr a l. A. And arbitrary. Arbitral = relating
or appealed. E.g., “If the court a quo has no to arbiters or arbitration; arbitrary usually may
jurisdiction, then a court ad quern gains none by be equated with “capricious, randomly chosen.”
appeal. . . .” Eugene A. Jones, Manual of Equity (See a r b i t r a r y .) It also has a more and more
Pleading and Practice 12 n.24 (1916). disused legal meaning: determinable by the deci­
A qua was originally a solecism for a quo. It sion o f a judge or tribunal rather than defined by
has gained some degree o f currency in legal prose, statute. This, take note, was the original meaning
although a quo remains the preferred term. Be­ o f arbitrary. Could it be that its other, more mod­
cause a quo, the correct form, has persisted along­ em meanings have grown out o f this first one?
side the bastardized version, it is not overreaching Arbitral may correspond to either arbitrator or
to say that we should stick with what is correct. arbiter. In legal language, it is almost invariably
It is the only form given, for example, by L eif in the adjectival form o f arbitrator, q.v. <arbitral
his Dictionary o f Law, 94 Yale L.J. 1855, 2050 discretions It also sometimes corresponds to the
(1985). “On March 30, 1984 the district court a noun arbitration, as in the phrase arbitral tribu­
qua [read a quo] stayed the scheduled execution, nal. See Graphic Communications Union v. Chi­
dismissed with prejudice the foregoing enumer­ cago Tribune Co., 779 F.2d 13, 15 (7th Cir. 1985).
ated claims 2, 4, and 5 and docketed an eviden­ B. A n d arbitrational; arbitrative . Both arbi-
tiary hearing on claims 1 and 3 .7 “The sole ques­ trational and arbitrative are n e e d l e s s v a r i a n t s
tion posed on appeal is whether the federal court o f arbitral. E.g., “The witness privilege applies in
a qua [read a quo] had personal jurisdiction over any judicial, official, investigatory, legislative, or
the nonresident defendant.” Cf. term in u s a q u o . arbitrational [read arbitral] proceeding . . . .”
Phillip J. Kolczynski, The Criminal Liability o f
a rb iter. See a rb itra tor. Aviators, 51 J. Air L. & Com. 1,42 (1985)./ “[Every
arbitrator 73

Kansas corporation can sue and be sued] in all case may be tried (or arbitrated), but a so-called
courts and participate . . . in any judicial, admin­ litigation cannot be tried.
istrative, arbitrative [read arbitral] or other pro­ The standard idiom would be to say that an
ceeding, in its corporate name . . . .” Kan. Stat. arbitration is heard or conducted. But legal writ­
Ann. § 17-6102(2) (1992). ers increasingly get it wrong—e.g.: “[T]his would
be prejudicial to the Hideca-Nereus arbitration
a rb itra m en t; arb itrem en t. The first spelling is which, it was claimed by Hideca, should logically
standard for this word, meaning (1) “the power to be tried [read heard] first.” Compania Espanola
decide for others,” or (2) “a decision or sentence.” de Petroleos, S.A. v. Nereus Shipping, S.A., 527
When first imported into English from French in F.2d 966, 971 (2d Cir. 1975)./ “[T]he court vacated
the late 16th century, the word was spelled with the arbitration award since the arbitration had
-e- in the penultimate syllable. Thereafter the been tried [read conducted] on a totally different
spelling was Latinized to arbitrament, which the theory than the one on which arbitration had
OED notes has been the accepted spelling since been ordered.” Metropolitan Property & Liab. Ins.
about 1830. Following is an illustration o f sense Co. v. Streets, 856 F.2d 526, 529 (3d Cir. 1988).
(1): “The court may not leave both the questions
o f law and o f fact to the arbitrament o f the jury.” a rb itra to r; a rb iter. An arbitrator is a person
In sense (2), the word was once common in chosen to settle differences between two parties
arbitration contexts; it referred to the arbitrators’ embroiled in a controversy. Arbiter, by contrast,
decision or award. This particular use is labeled is more general, meaning “anyone with power to
obsolete in Katharine Seide, A Dictionary o f Arbi­ decide disputes, as a judge.” E.g., “As long as the
tration 24 (1970). pleas o f both employer and employee are lawful,
the courts have not been constituted arbiters o f
the fairness, justice, or wisdom o f the terms de­
a rb itra ry ; u n rea son a b le . These words are ex­
manded by either the employer or the employee.”
tremely complex in law, their senses not readily
The terms do, however, overlap considerably,
encapsulated; but their most elemental senses are
and they cause confusion on both sides o f the
worth noting. Arbitrary = with no purpose or
Atlantic. Yet when referring to legal arbitration,
objective. (See a rb itra l (a ).) Unreasonable =
one should term the resolver o f disputes the arbi­
with a purpose that is excessively imposed.
trator. “To order arbitration is not to approve in
advance o f all or everything that the arbiter [read
a rb itra te = (1) (of one or more parties) to settle arbitrator] does.” (Scots law presents an excep­
by, or submit to, arbitration; or (2) (of an arbitral tion: one appoints an arbiter to hold an arbitra­
tribunal) to decide a dispute being arbitrated. tion.)
Though surprisingly common, references to courts Leff rightly rejects a distinction o f a different
“arbitrating” disputes reflect poor usage— e.g.: nature: “Sometimes a distinction is sought to be
“The plaintifFs lawyers would simply tell the made between an arbiter, who decides according
plaintiff what he would net if he instructed them to rules, and an arbitrator, who is free to settle
to accept the offer; if the plaintiff thought the matters in his own sound discretion. But the dis­
lawyers were taking too much, he could ask the tinction doesn’t hold; arbiters often have huge
court to arbitrate [read decide] the dispute . . . .” moments o f discretionary power, and more im­
Chesny v. Marek, 720 F.2d 474, 478 (7th Cir. portant, most arbitrators today proceed according
1983). to elaborate rules, both procedural and substan­
tive.” Arthur A. Leff, The Leff Dictionary o f Law,
a rb itra tion . A. A nd mediation . Both terms re­ 94 Yale L.J. 1855, 2050 (1985). That distinction,
fer to methods o f dispute resolution involving a in fact, goes back to Roman law, but it has no
neutral third party. The results o f arbitration are validity today.
binding—that is, the parties to the arbitrator’s The phrase is always final or ultimate arbiter,
decision are bound by it. In mediation, to the not arbitrator. E.g., “The judicial system is re­
contrary, the mediator merely tries to help two garded as the ultimate arbitrator [read ultimate
disputing parties reach a mutually agreeable so­ arbiter] of disputes.”/ “In an earlier and ruder age
lution; the parties are not, however, bound by a the appeal was to arms, and force was the final
mediator’s decisions. See m e d ia tio n . arbiter.”
B. “T rying” an A rbitration. To say that an Arbitor is a misspelling—e.g.: “As the chief arbi-
arbitration is tried is to betray an ignorance of tor [read arbiter] in disputes between producers
idiom, as well as the process involved, by treating and the screenwriters’ and directors’ guilds, it is
it as if it were litigation in a public tribunal. And, Dern’s role to settle disputes ranging from pay­
in any event, arbitration refers to a process: a ment schedules and credits to working condi-
74 arbitrement

tions.” Black, Dixon Q. Dern, Esq.: Hollywood would commend it, its obscurity to nonlawyers is
Law, M Mag., May 1989, at 48, 53. See a rb itra l. a distinct liability. E.g., “Assuming arguendo that
her answers establish that she actually attempted
arb itrem en t. See a rbitra m en t. to warn appellant, the court o f appeals erred in
inferring that her having done so established that
a rch a ism . See a n a ch ro n ism . she was acting as a state agent.” Arguendo is one
o f those LAT IN ISM S that neophyte lawyers often
A r c h a i s m s , outmoded words or expressions that adopt as pet words to advertise their lawyerliness.
are not yet obsolete, abound in the language o f In BrE, the word means something else en­
the law. This work attempts to treat them individ­ tirely: “during the course of argument.” E.g.,
ually under specific entries. A great many are “ T h is air is too pure for a slave to breathe in /
collected under the entries f o r b id d e n w o r d s , was already ancient when Seijeant Davy uttered
LAW YER ISM S & LATINISM S. it arguendo in 1772 . . . .” R.E. Megarry, A Sec-
Among the archaisms especially to be avoided ond Miscellany-at-Law 198 (1973).
are the following:
alack haply to wit a rg u fy = to dispute, wrangle. Krapp calls this
anent howbeit verily term “illiterate or, in cultivated speech, a humor­
anon maugre whilom ous and contemptuous form o f argue.9*G.P. Krapp,
belike methinks withal A Comprehensive Guide to Good English 50
divers perchance wot (1927). Lawyers could use a good sarcastic term
fain shew (for show) wroth for argue, and argufy fills the bill. Cf. sp e e ch ify .
One writer aptly says of a similar list: “These are
a rg u m e n t(a tio n ). Argumentation refers to the
easily avoided by anyone o f the least literary
act or process of arguing, or the art o f persuading.
sensibility . . . .” Herbert Read, English Prose
Argument should be reserved for all other con­
Style 9 (1952). See nay.
texts.
a rch e ty p e ; p ro to ty p e . These words are close in
meaning, but their d if f e r e n t ia t io n should be a rg u m en t(a t)iv e. The longer form is preferred
encouraged. As commonly used, archetype means as an adjectival form of argumentation.
“a standard or typical example,” whereas proto -
A rgum ent, M odes o f . The Romans categorized
type means “the original type that has served as
a model for successors.” In the sentence following, and gave names to several different modes o f
prototype is misused for archetype: “The prototype argument, all o f which (both names and modes)
[read archetype] of a personal benefit requiring are still used today. Although it might be some­
heightened judicial scrutiny is cash flowing di­ what precious to use some o f the more recondite
rectly to the union officer from the union trea­ Latin phrases in ordinary contexts (e.g., argu-
sury.” mentum ad crumenam\ they are at least as useful
as most things that appear in legal footnotes.
a rch e ty p ic; a rch e ty p ica l; p r o to ty p ic ; p r o t o ­ Following are some o f these phrases, each of
typ ica l. Inconsistently enough, the preferred ad­ which is preceded by argumentum:
jectival forms are archetypal and prototypical. ah auctoritate = from authority (of a stat­
ute or case)
a rch itectu ra l; a rch ite c to n ic . Architectural is
usually the literal, and architectonic the figura­ ab impossibili = from impossibility
tive, term. Whereas architectural relates to the ab inconvenienti = from inconvenience
design o f physical structures, architectonic relates a contrario = for contrary treatment
to rational organization or to the abstract struc­
ad baculum = dependent on physical
ture of a thing or idea. Although architectonic is
force to back it up
sometimes used like architectural, it should be
confined to figurative or abstract senses to make ad captandum = appealing to the emo­
the d if f e r e n t ia t io n complete. tions o f a crowd
ad crumenam = appealing to the purse
A rd en , E n och . See E n o ch A rd e n law . or self-interest
ad hominem = based on disparagement
A r g o t . See ja r g o n .
or praise of another in a
a rg u en d o. In AmE, arguendo is unnecessary in way that obscures the
place of for the sake o f argument. Although brevity real issue
arrear(s) 75

ad ignorantiam based on an adversary's substance o f the charge and calling on him to


ignorance plead thereto.” Fed. R. Crim. P. 10. See in d ic t­
ad invidium appealing to hatred or m en t.
prejudice
a rra n t; e rra n t. The original word was errant,
ad misericordiam appealing to pity
which means “traveling, wandering” <knight er­
ad populum appealing to the crowd rante. By extension it has come to mean “straying
ad rent on the point at issue out o f bounds” and “erring, fallible.” (See erran t.)
(what every good judge Arrant began as an alteration o f errant, and origi­
likes to hear) nally had the same sense (“wandering”), but now
usually appears as a term o f contempt in the
ad verecundiam appealing to one's mod­
phrase arrant knave. It means “utter; extreme”
esty
or “egregious; outstandingly bad.”
a fortiori from the stronger case
a simili by analogy or similarity; a rra y ; a rra y a l; arra ym en t. The three terms
from a like case differ. Array is the most common, meaning (1)
ex silentio out o f silence (based on “order or arrangement”; (2) “venire; a panel o f
the absence o f solid evi­ potential jurors, or a list o f impaneled jurors”
dence) <after challenges for cause to the first array o f
jurors in the box>; (3) “clothing”; (4) “militia”; (5)
“a large number” <an array o f setbacks>; or (6)
arise. See a cc r u e (b ).
“a series o f statistics or a group o f elements.” The
specific meaning is usually apparent from the
arm ’s-len gth ; arm s-len gth . In phrases such as
context. (See c h a m e l e o n -h u e d w o r d s .) By the
arm’s-length transaction, the correct form is to
definition under sense (2), array may refer either
make arm possessive; the phrase is usually and
to a roster o f jurors or to the body o f jurors
best hyphenated when it appears before the noun
collectively.
it modifies— e.g.: “The stock was sold in an arm’s-
Arrayal = the act o f arraying or ordering.
length transaction.”/ “The renewal did not result
Arrayment shares this meaning, but more com­
from independent, arms-length [read arm’s-
monly means “clothing, attire.” Arrayment devel­
length] negotiations.” See p h r a s a l a d j e c t iv e s
oped into another form that is now more generally
(a ).
used in this archaic and learned sense, raiment.
An inferior method o f signaling the adjectival
Array as a verb has the special legal senses (1)
quality o f the phrase is to place quotation marks
“to impanel a jury for trial” <the jurors have been
around it (by referring, for example, to an “arm’s
arrayed on the panel>; or (2) “to call out the
length” position.) This method, to be avoided, ap­
names o f the jurors one by one” <the defense
pears repeatedly in Geoffrey Hazard, Triangular
lawyers scrutinized the jurors as they were ar-
Lawyer Relationships, 1 Geo. J. Legal Ethics 15,
rayed>.
33-34 (1987).
In the phrase at arm’s length ( = not having a
a rre a r(s); a rrea ra g e(s). The most common use
confidential relationship), the second two words
o f either o f the terms is the phrase in arrear(s)
are not hyphenated.
( = behind in the discharge o f a debt or other
obligation). Current AmE idiom calls predomi­
a ro u n d is informal for about or approximately, nantly for in arrears, whereas a common BrE and
and should be avoided in favor o f either o f those older AmE idiom is in arrear. In arrearages is
substitutes. obsolete.
Arrearage, a l e g a l i s m , legitimately remains
a rou n d ; ro u n d . In AmE around is preferred only in the sense “the condition o f being in ar­
where in BrE round is. rears.” In all other meanings arrears serves: (1)
“unfinished duties” <arrears o f work that have
arraign m en t; in d ictm e n t. The meanings of accumulated>; and (2) “unpaid or overdue debts”
these terms vary, depending on the jurisdiction. <the creditor has reached an agreement with the
An indictment is the usual instrument charging debtor on settling the arrears>. E.g., “Earned
a person with a felony. It also refers, loosely, to income credits constitute ‘refunds o f federal taxes
the act o f charging someone with a crime. An paid' and ‘overpayment to be refunded' subject to
arraignment, within the federal system o f the withholding to satisfy child-support arrears.”
U.S., is the “reading [of] the indictment or infor­ Yet legal writers frequently use arrearage (not
mation to the defendant or stating to him the even listed in the COD) where arrears would
76 arrestable

be preferable. E.g., “In Fanchier v. Gammill, a a rso n a b le ; a rso n o u s. Both terms are omitted
Nevada court had awarded a wife alimony that, from most English-language dictionaries, includ­
because of arrearages [read arrears], she was ing the OED, W2, W3, and AHD. But they are
forced to reduce to a judgment in Mississippi.” serviceable. Arsonable = (of property) o f such a
In the singular, arrearage is common enough in nature as to give rise to a charge of arson if
legal texts to be perhaps forgivable, arrear being maliciously burned. E.g., “It is sometimes said
an unnatural-sounding singular. E.g., “This order that the explanation o f this rule is that a chattel is
recites findings that appellant paid $1000 o f the (with certain exceptions) non-arsonable property,
$4000 arrearage found to exist by the 1982 order, while a building is arsonable, and it is therefore
leaving an arrearage of $3000 denominated in the not possible to transfer the malice between the
order as 'amended arrearage'” The OED records two legal species o f property.” Glanville Williams,
an incorrect American use o f arrears as a singu­ Criminal Law 130 (2d ed. 1961).
lar: “They constitute a large arrears [read arrear Arsonous = o f or relating to arson. E.g., “After
or arrearage], which should be dealt with they poured ten gallons of gasoline about the
speedily.” inside o f the home in preparation for their arson­
ous act, an unexpected explosion occurred which
a r r e s ta b le . So spelled. See -ABLE (A), trapped Frank Owen in the home and resulted in
his death.” Smith v. Moran, 209 N.E.2d 18, 19
a rre ste e . See -e e . (111. App. Ct. 1965)./ “[T]he relatively few firebugs
could not buy out the orphans for an amount
a r re ste r; a r re sto r. The former is the preferred remotely near the costs o f their arsonous con­
spelling. duct.” Mayer G. Freed & Daniel D. Polsby, Just
Cause for Termination Rules and Economic Effi­
a r r iv e e . See -e e . ciency, 38 Emory L.J. 1097,1112 (1989)./ “[S ta te­
ment . . . not hearsay when offered as false excul­
a rrog a te, a transitive verb, should not be used patory statement intended to conceal arsonous
reflexively, as here: “Should a justice court at­ purpose for being in alley.” Roger C. Park, “7
tempt to grant a divorce, its decision would be Didn't Tell Them Anything About You": Implied
invalid as if the reader were to arrogate himself Assertions as Hearsay Under the Federal Rules o f
to do so [read to arrogate to himself this power or Evidence, 74 Minn. L. Rev. 783, 816 n.180 (1990).
to appoint himself to do so].” The following sen­
tence illustrates the correct idiom: “John had al­ a rtefa ct. See a rtifa ct.
lowed sheriffs to arrogate to themselves once more
the power of hearing pleas o f the Crown . . . .” a rtfu l p le a d in g . See w e ll-p le a d e d co m p la in t.
H.G. Hanbury, English Courts o f Law 51 (2d ed.
1953). See a b rog a te. a rticle , v.t., means “to bind by articles,” and is
conjugated articled, articling. An articled clerk
arse; ass. Arse is the spelling (in the anatomical (who is said to “take articles”), for instance, was
sense, not in horse-sense) in formal English. formerly the term for an apprentice bound to
serve in a solicitor’s office in return for learning
a r s e n ( i ) o u s . The spelling with the -i- is standard, the trade. The verb is invariably used in reference
the other form being a n e e d l e s s v a r i a n t . Arseni- to apprenticeships. E.g., “[Among the necessary
ous /ahr-sen-ee-ds/( = o f or pertaining to arsenic) qualifications for becoming a solicitor is an ap­
should not be confused as being an adjectival form prenticeship] or service under articles o f clerkship
o f arson. See a r s o n a b l e . to a practising solicitor for a period varying from
two and a half to five years, according to the
a r s o n ; h o u s e b u r n i n g . Arson = (1 ) at common previous attainments o f the clerk. This service is
law, the malicious burning o f someone else’s exclusive; and, unlike the Bar student, the arti­
dwelling house; or (2) under any of various stat­ cled clerk cannot devote any part of his attention
utes, the malicious burning of someone else’s or to matters other than the study and practice of
one’s own dwelling house or of anyone’s commer­ the law.” Edward Jenks, The Book o f English Law
cial or industrial property. 70 (P.B. Fairest ed., 6th ed. 1967).
The word houseburning denotes the common-
law misdemeanor of intentionally burning one’s A . Om itted B efore Party D enom i­
A r t ic l e s .
own house that is within the city limits or that is nations. It is a convention in legal writing to omit
close enough to other houses that they might be both definite and indefinite articles before words
in danger o f catching fire. The term applies only such as plaintiff, defendant, petitioner, respon­
when no one else is actually damaged by the fire. dent, appellant, and appellee. It is almost as if
as 77

these designations in legal writing become names, can sue to set aside a fraudulent conveyance made
or proper nouns, that denote the person or per­ by decedent during lifetime [read his lifetime].”
sons referred to. The convention is a useful one For exceptions to the general rule, see (a ) above.
because cutting even such slight words can lead C. W rongly Inserted. Writers sometimes unidi-
to leaner, more readable sentences. Perhaps the omatically insert articles where they have no
most important aspect o f one’s preference, though, business; this phenomenon is inexplicable, except
is to be consistent within a piece o f writing. The insofar as we can identify the writer’s failure
convention o f omitting articles should not spread to distinguish between c o u n t n o u n s a n d m a s s
beyond these few standard party designations, for NOUNS. E.g., “The nature o f the agency relation­
beyond these standard party-names the conven­ ship is such that the principal would be subject
tion may seem unidiomatic. E.g., “If decedent to a vicarious liability [omit a] as a defendant to
[read the decedent] disposes o f his estate by will, another who may have been injured by the agent’s
he devises property and the takers are devisees, negligence.”/ “The Commission has taken the po­
even though the subject is personal property.”/ sition that it may by its order allow an overpro­
“Intervenors’ [read The intervenors’] opposition to duction [omit an] for a period o f time to meet the
plaintiff’s motion has two bases.” (See the exam­ market demand.”
ples under ( b ) o f this entry in which taxpayer D. Repeated. When two or more nouns are
appears without an article.) connected by a conjunction, it is usually best to
To some, the practice o f omitting these articles repeat the article before each noun. When the
may seem symptomatic o f LEGALESE. They are article is not repeated, the sense conveyed is that
entitled to their point o f view. The rest o f us can the nouns are identical or synonymous. “The com­
enjoy not having to write, “The plaintiff, now the mittee elected a secretary and treasurer” (one
appellant, sued the defendant, now the appellee.” person); “The committee elected a secretary and
(In fairness, though, “Plaintiff, now appellant, a treasurer” (two persons).
sued defendant, now appellee” is not much better The article should not be repeated in a second,
reading.) parallel adjectival phrase. “Appellant testified
B. W rongly Omitted. There is a contagious ten­and the United States admitted that P.A.L. was
dency in legal writing to omit articles before a validly formed and an existing corporation [omit
nouns, perhaps on the analogy o f the special legal an]”
convention for party-names (see A). E.g., “Distinc­ E. Indefinite. See a.
tion [read A distinction] must be recognized be­
tween the review proceeding here involved and a rticu la b le , not articulatable, is the correct
those which . . . are allowed only . . . through a form—e.g.: “The government argues that the stop
‘civil action commenced . . . in the district o f the car was either part o f an ‘extended border
court.’ ” White v. U.S., 342 F.2d 481, 484 (8th Cir. search’ or a ‘ Terry stop’ based on articulatable
1965). In our quest for concision through c u t t i n g [read articulable] suspicion.” U.S. v. Weston, 519
OUT t h e CHAFF, however, our writing should not F. Supp. 565, 569 (W.D.N.Y. 1981). See -a t a b l e .
become so abbreviated that we omit necessary
articles; articles are more than mere chaff: they a rtifa ct; a rte fa ct. The former spelling is stan­
are signposts for the reader, who may become dard in AmE, the latter in BrE.
temporarily lost without them. There is a ten­
dency, for example, in tax cases, to refer to tax­
a rtifice is sometimes misspelled artiface, as in “a
payer without an article, as if it were a proper
scheme and artiface [read artifice] to defraud.”
name. E.g., “Federal law also required that tax­
U.S. v. Edwards, 716 F.2d 822, 823 (11th Cir.
payer [read the taxpayer] make contributions un­
1983).
der the Federal Insurance Contributions Act.”/
“Taxpayers’ [read The taxpayers’] request for com­
a rtificia l p e rso n . See ju r is tic p e rso n .
pensatory and punitive damages is barred by the
doctrine o f sovereign immunity.” These usages
offend a sensitive ear, whether it is the mind’s artisa n ; a rtiza n . The former spelling is stan­
ear or one’s actual ear. dard.
Here are a few similar examples: “In ap­
proaching solution [read a solution] to this prob­ as. A. Causal w ords: as; because; since; for . In
lem, we must look beyond the immediate conse­ the causal sense as should generally be avoided,
quences o f the decision o f this case.”/ “The award because (not as!) it may be misunderstood as
as remitted by trial judge [read the trial judge] having its more usual meaning “while,” especially
was not so gross as to be contrary to right when it is placed anywhere but at the beginning
reason.”/ “If a sale is necessary, the representative o f the sentence. Fowler states: ‘T o causal or ex­
78 as against

planatory as-clauses, if they are placed before the it.” Oliver W. Holmes, The Common Law 176
main sentence . . . there is no objection.” E.g., (1881; repr. 1963).
“But as the case has been discussed here and But the phrase is sometimes misused for
below without much regard to the pleadings, we against: “Defendant was allowed, however, to tes­
proceed to consider the other grounds upon which tify as against [read against] the plaintiff [if the
it has been thought that a recovery could be defendant gave adverse testimony].”/ “In a trial
maintained.” Robins Dry Dock & Repair Co. v. for felony the prisoner can make no admissions
Flint, 275 U.S. 303, 308 (1927) (per Holmes, J.)/ so as to dispense with proof, though a confession
“As I read the court’s opinion to be entirely consis­ may be proved as against [read against] him.”
tent with the basic principles which I believe (Eng.)
control this case, I join in it.” The reverse order Because as against is an idiom with a fairly set
is infelicitous, however, unless the reader neces­ meaning in English, it should not be used in
sarily knows what is to be introduced by the as- unfamiliar ways, such as in an ellipsis o f as being
clause: “We do not explore the problem further, against: “The policy is void as against public pol­
as [read since] the issue o f damages was not icy [read as being against public policy] because
litigated below.” it opens a wide door by which a constant tempta­
The causal as becomes troublesome even at tion is created to commit for profit the most atro­
the beginning o f a sentence when a temporal as cious o f crimes.”
appears in the same sentence. “As Nelda returned
to her occupation as soon as appellant drove her as and when. This is a redundant expression;
from Newark to New York, and as he knew full either as or when will suffice. “The bill provides
well that she would do this, one might suppose that the balances shall be met by the Exchequer
that the violation o f the Mann Act was clearly as and when [read as] they mature for payment.”
established.” The first and last occurrences o f as (Eng.— ex. fr. V. H. Collins, Right Word, Wrong
in that sentence are causal, the second and third Word 19 (1956)).
temporal; the causal words should be changed to The variant when and as is equally bad: “A
since or because. court o f equity acts only when and as [read only
Because o f the syntactic restrictions on as, we when] conscience commands.”
are left with three general-purpose causal con­
junctions. Because is the strongest and most logi­ as . . . as. A. And s o . . . as. In positive state­
cally oriented o f these. Since is less demonstra­ ments, the as . . . as construction is preferred.
tively causal and frequently has temporal “If the guard had thrown [the packaged explosive]
connotations. But using since without reference down knowingly and willfully, he would not have
to time is not, despite the popular canard, incor­ threatened the plaintiff’s safety, so far as [read
rect. (See s u p e r s t it io n s (G).) For is the most sub­ as far as] appearances could warn him.” Palsgraf
jective o f the three, and the least used. If because v. Long Island R.K, 162 N.E. 99, 101 (N.Y. 1928)
points out a direct cause-effect relationship, for (per Cardozo, J .)7 “So long as [read As long as]
signals a less direct relationship, adding indepen­ the courts fail to come to grips with that fact, so
dent explanation or substantiation. Moreover, for long as [read as long as] they persist in assuming
is a coordinating conjunction, and not, like be­ that every juror has a precise and firmly held
cause and since, a subordinating conjunction; position, the process o f jury selection will be un­
hence it can properly begin sentences. predictable, arbitrary, and ultimately lawless.”
B. In A nticipatory R eference. When coupled Twenty years ago it was commonly believed
with do-words, as can cause mischief o f the kind that so . . . as is preferable to as . . . as in
outlined under a n t ic ip a t o r y r e f e r e n c e (a ). E.g., negative statements such as, “The limitations pe­
“Texas, as do [read like] most jurisdictions, recog­ riod was not so long as I had thought.” But a s . . .
nizes three general theories o f recovery in prod­ as generally serves equally well in such negative
ucts liability.” See l i k e (c). statements. Following is a construction in which
C. And like . See l i k e & h y p e r c o r r e c t io n (E). not so . . . as does not read as well as not a s . . .
as: “Back at Bennie’s Comers, affairs were not
a s a g a i n s t means “toward; with respect to; in going so happily as they were at McGill Univer­
regard to,” but with the implication o f adversity sity.” On first reading this sentence, the reader
or conflict—e.g.: “Every admission is deemed to may be temporarily misled into thinking that so
be a relevant fact as against the person by or on means “very,” in its colloquial sense, as it would
whose behalf it is made.” (Eng.)/ “ [I]f a stick o f if the sentence ended after happily. See as long
timber comes ashore on a man’s land, he thereby as; equally as (b ) & so as.
acquires a ‘right o f possession’ as against an ac­ B. Repetition of Verb After. Often, when the
tual finder who enters for the purpose o f removing second as in this construction is far removed from
aside from 79

the first as, the verb is repeated for clarity: “Per­ grees.” Max Radin, The Law and You 41 (1948).
haps no area o f corporate law is as beset with See d e sce n d a n t.
conflicting judicial opinions, variations among A collateral is a relative who traces relationship
statutes, and confusion and uncertainty concern­ to the intestate through an ancestor in common,
ing the likely outcome o f litigation as is the duty but who is not in the lineal line o f ascent or
o f loyalty.” descent.
C. In the ascendant. This phrase is sometimes
as at (= as of) is characteristic chiefly o f BrE misconstrued to mean “ascending”; actually, it
and o f financial contexts in AmE. E.g., “This book means “dominating, supreme.” The phrase has
reflects the law as at August 1986.” Stanley Ber- been handed down to us from medieval astrology.
win, The Economist Pocket Lawyer i (1986)7 “The
common law took the coldly logical view that a s c e n s i o n ; a s c e n t . Both mean “the act o f as­
bastardy was judged as at the date o f birth and cending.” Ascent, however, has these additional
was indelible . . . .” J.H. Baker, An Introduction senses: (1) “the act o f rising in station or rank, or
to English Legal History 558 (3d ed. 1990). in natural chronological succession” <the ascent
o f man>; (2) “a method o f ascending” <an unortho­
as a w h o le . See in w h o le . dox ascent>; and (3) “the degree o f slope or accliv­
ity” <a steep ascent>.
as b e tw e e n ( = in a comparison o f [usu. two
things]) is much more common in legal than in as con cern s. See a s r e g a r d s .
nonlegal writing. In fact, most general English-
language dictionaries neglect the phrase. E.g., ( = to attribute to a specified cause) is
a s c r ib e
“The controversy as to the type o f law, whether sometimes misused for subscribe in the sense “to
custom or common law or tradition, on the one think o f favorably”— e.g.: “We ascribe [read sub­
hand, or legislation, on the other, the controversy scribe] to the notion that judges should limit the
as to the relation o f law to morals, the discussion evidence in criminal trials to what is relevant.”
as between adjudication and administration, as
between law and equity, as between strict and free
as do. See a s (b ) & a n t i c i p a t o r y r e f e r e n c e <a >.
procedure, all run back to this problem o f stability
and change.” Roscoe Pound, The Formative Era
a s e q u a lly . See e q u a l l y a s ( d ).
o f American Law 18 (1938)./ “A judgment gives
rights and obligations to litigants as between
a s f a r a s . This phrase must be followed by is
themselves.” 1 E.W. Chance, Principles o f Mer­
cantile Law 10 (P.W. French ed., 13th ed. 1950)./ concerned or goes, or else idiom is severely vio­
“This does not mean that in the English courts o f lated— e.g.: “As far as damages [add are con­
the thirteenth century justice was no more than cernedI, the case does not seem to be promising.”
‘justice as between man and man.’ ” Carleton K. Idiom aside, however, this construction usually
Allen, Law in the Making 401 (7th ed. 1964). signals v e r b o s i t y . In the sentence just quoted,
for example, the writer might have said: “We
a scen d a n t. A. Spelling. Both as a noun and as expect the damages to be insignificant.”
an adjective, the spelling ascendant is preferred
over ascendent As follows is always the correct
a s fo llo w (s ).

B. And ancestor; collateral; descendant . In the form, even for a long enumeration.
language o f decedents’ estates, both ascendant
and ancestor mean “a person related to an intes­ as f r o m , a formal way o f dating the onset o f
tate or to one who claims an intestate share in something, is more common in BrE than in AmE.
the descending lineal line (e.g., parents and E.g., “Eventually it was decided that as from 1979
grandparents).” Ancestor is the more universally criminal causes in the House o f Lords should be
comprehensible word but has two severe disad­ reported under the same title as in the court
vantages: first, it is less likely to be understood below.” Glanville Williams, Learning the Law 1 7-
as referring to a parent; second, it lacks the 18 (11th ed. 1982)./ “Most building societies credit
-ant suffix, which makes ascendant parallel with accounts with monies [q.v.] paid-in by cheque as
descendant See a n cesto r. from the date o f deposit.” Council Had No Choice,
Descendant denotes one who is descended from Fin. Times, 27 Jan. 1990, at 5.
an ancestor—i.e., offspring in any degree, near or
remote. E.g., “No one will deny that a marriage a s i d e f r o m was once considered inferior to apart
between an ascendant and descendant in the from. It has become standard, though it is con­
same line is properly within the forbidden de­ fined primarily to AmE.
80 as, if, and when

This phrase, which commonly


a s , if , a n d w h e n . Conesford wrote that “an illiteracy is introduced
appears in real estate contracts, could almost when the words as o f precede not a date, but the
always be made when with no loss in meaning. adverb now. As o f now is a barbarism which only
See a s a n d w h e n , i f a n d w h e n & d o u b l e t s , a love o f illiteracy for its own sake can explain.
TRIPLETS, AND SYNONYM-STRINGS. What is generally meant is at present.” Lord
Conesford, “You Americans Are Murdering the
a s i f ; a s t h o u g h . Attempts to distinguish be­ Language,” in Advanced Composition 374, 383
tween these idioms have proved futile. Euphony ( J.E. Warriner et al. eds., 1968).
should govern the choice of phrase. But as o f now does not mean “at present”;
rather, it means “up to the present time.” Follett
a s i s ; a s w a s . “He bought the company ‘as is.*9*
also disapproved of the phrase, recommending
Although a martinet of logic might insist on as
instead up to now or for the present, but as o f now
was in the preceding sentence, that phrase is
is today unobjectionable in AmE.
jarringly unidiomatic. As is, in the context of that
Still, like its shorter sibling, it sometimes ap­
sentence, is really an elliptical form o f on an
pears needlessly— e.g.: “Norman Mailer is a prac­
“as is” basis, and is infinitely better than that ticed writer. I am among those who are not con­
paraphrase. The purpose o f the phrase as is, o f
vinced that he knows what to write, but it is clear
course, is for a seller to disclaim warranties and
he knows how to write. His most recent novel, as
representations. o f just now, [delete as o f just now and surrounding
commas] contains the following sentence . . . .”
a s lo n g a s; so lo n g a s. These phrases are not
Stephen White, The Written Word 81 (1984).
purely temporal constructions; more often than
not, they express a condition rather than a time
a s o f c o u r s e . The phrase as o f course, as opposed
limit <as long as the transferees abide by these to as a matter o f course, strikes nonlawyer readers
restrictions, they may enjoy possession o f the
as unidiomatic. But in law the idiom is common—
land>. See a s . . . a s (a ).
e.g.: “It does hold that if such transfers are al­
lowed as o f course, the same right o f transfer
a s m u c h a s o r m o r e . When than follows these
must be extended to every other child regardless
words, the second as must appear <as much as or
o f the dissimilarities o f his circumstances.” Dil­
more than>. A common error is to write as much
lard v. School Bd. o f Charlottesville, 308 F.2d 920,
or more than.
929 (4th Cir. 1962) (Haynsworth, J., dissenting)./
In the following sentences, however, as much
“A motion is not a ‘responsive pleading,’ within
or more (not followed by than) is correct: “A lega­
the meaning o f rule 15(a), and thus the right to
tee or devisee can witness a will if he takes as
amend as o f course is not defeated because the
much or more as heir if the testator dies
other party has filed a motion attacking the plead­
intestate.7 “Was she not as much or more a victim
ing.” Charles A. Wright, The Law o f Federal
of the system as the astonishingly bright and
Courts 428 (4th ed. 1983)./ “[CJosts shall be al­
collected Gregory?” Neil MacCormick, With Due
lowed as o f course to the prevailing party . . . .”
Respect, TLS, 22 Jan. 1993, at 3. Cf. a s w e l l a s
Fed. R. Civ. P. 54(d). See o f c o u r s e .
o r b e t t e r t h a n . See il l o g ic (a ).

as o f now . See a s o f (c).


as of. A. Generally. As o f should be used with
caution. Originally an Americanism, the phrase a s o f r i g h t is acceptable legal shorthand for as a
frequently signifies the effective legal date o f a matter o f right, the phrase means “by virtue of a
document, as when the document is backdated or legal entitlement”—e.g.: “Writs o f error to the
when the parties sign at different times. When state courts have never been allowed as o f right.**!
such a nuance is not intended, as o f is the wrong “The action for damages is always available, as o f
phrase. E.g., it is often inferior to on: “The plain­ right, when a contract has been broken.” G.H.
tiff’s employment with the defendant ended as o f Treitel, The Law o f Contract 824 (8th ed. 1991).
[read on] September 30.” Cf. as at.
B. U sed U n n ecessa rily . Sometimes the a s o f y e t. See a s y e t .
phrase needlessly displaces a more direct word—
e.g.: “It is also important to note that Arizona had a s p e r is commonly understood to mean “in accor­
itself not suffered any direct harm as o f the time dance with” or “in accordance with the terms of.”
that [read when] it moved for leave to file a com­ In re Impel Mfg. Co., 108 F. Supp. 469, 473 (E.D.
plaint . . . .” Maryland v. Louisiana, 451 U.S. Mich. 1952). It should, however, be commonly
725, 743 (1981). eschewed as an unrefined locution.
C. As o f now. This phrase, along with as o f Originating in commercialese, as per is almost
itself, has been criticized as a barbarism. Lord always redundant for per. Yet even per is a LAT-
assail 81

INISM in place o f which many everyday equiva­ sary element o f larceny. E.g., “The writ o f trespass
lents will suffice (e.g., according to or in accor­ on the case might be joined with trespass quare
dance with). E.g., “The memorandum noted that clausum fregit or trespass for the asportation o f
the release between Avondale and Bean as per chattels.” (Eng.)
[read in accordance with] clause 6 thereof indi­ This old word has been adapted in modem con­
cated an intent to allow third-party claims and texts to mean “the act o f driving (a vehicle) away”:
was not a full release.7 “The secretary distributed “Thereafter, by convoluted reasoning, it is held
the residual assets as per [read in accordance that under the facts o f this case the asportation
with] the judgment o f the Louisiana court.” [ = the driving away] o f the automobile is a contin­
uing process.” See la rce n y , b u r g la r y & stole,
a s p e r s i o n s , t o c a s t is a prolix c l ic h e for to to o k , a n d c a r r ie d aw ay.
asperse— b u t th e verb is little k n ow n .
a s p o r te r is the agent noun corresponding to as­
The former refers to
a s p h y x ia ; a sp h y x ia tio n . port, v.t. E.g., “The evidence did not identify any
the condition of having insufficient oxygen, re­ particular person as the actual asporter o f the
sulting in suffocation. The latter is the action o f property from the room in which it was stored.”
producing suffocation. State v. Hollis, 113 So. 159, 159 (La. 1927).

a s p o r t a b l e ( = capable o f being asported) is a as re g a rd s; as re sp e cts; as c o n c e r n s . As re­


lexicographic oversight, omitted from most En­ gards is a much maligned phrase; it is usually
glish-language dictionaries, including the OED, inferior to regarding or concerning, but it is not a
W2, and W3. E.g., “ [I]t was a reasonable inference solecism. E.g., “That service when finally effected
. . . that once inside the department store ware­ was technically improper as regards the newspa­
house the intruders would have access to a whole per and two o f the individual defendants.”/ “It is
range of valuable, readily asportable consumer true that Lady Duflferin’s interest was a protected
goods.” State v. S.G., 438 A.2d 256, 260 (Me. life interest, but she was left free as regards
1981). dealing with it in one particular way: surrender
in favor o f persons entitled in remainder.” (Eng.)
a s p o r t ( a t e ) , v.t. Asport (the better form) = to The phrase was a favorite o f the great legal
carry away or remove feloniously. E.g., “ [T]he scholar Wesley N. Hohfeld, who used it frequently
crime o f larceny entails not only the act o f taking in his Fundamental Legal Conceptions (1919).
property but also o f asporting it.” People v. Ham- Though as regards is no more objectionable
mon, 236 Cal. Rptr. 822, 829 (Ct. App. 1987). than with regard to, the whole lot o f such phrases
Though usually appearing in the context o f lar­ is suspect: “Train your suspicions to bristle up
ceny—hence o f personal property—the verb can whenever you come upon as regards, with regard
refer to the illegal carrying away o f persons. E.g., to, in respect of, in connection with, according as
“Between that act and the completion o f the kid­ to whether, and the like. They are all dodges o f
napping is the drive into the District to the club JARGON, circumlocution for evading this or that
where Ms. Allwine allegedly worked, finding her simple statement.” Arthur Quiller-Couch, On the
there, luring her outside to the car, and effectively Art o f Writing 114 (1916; repr. 1961). Cf. r e g a rd
restraining and asporting her.” Frye v. State, 489 (A).
A.2d 71, 75 (Md. 1985). As respects and as concerns are equivalent
Asportate is a poorly formed BACK-FORMATION phrases not commonly found outside legal writ­
and a n e e d l e s s v a r i a n t — e.g.: “On this venue ing. E.g., “This obligation may be limited by the
issue, the trial court interpreted the stipulation certificates so that the insurance applies only to
between the parties as sufficient to show the truck an injury as respects [better: to] ASI’s opera­
was asportated [read asported] from Day County, tions.”/ “Presentments as a method o f instituting
South Dakota.” State v. Graycek, 335 N.W.2d 572, prosecutions are obsolete, at least as concerns
574 (S.D. 1983)./ “ [T]he prosecutor . . . add[ed] [better: in] the federal courts.”
the value o f the pistol first removed from the
display case and secreted in the th ie f s waistband ass. See a rse & p o m p o u s ass.
to the value o f the second pistol asportated [read
asported] a few minutes later in the same man­ assail (= to attack) is usually used figuratively
ner.” Sendejo v. State, 676 S.W.2d 454, 455 (Tex. in both legal and nonlegal contexts. Both attack
App.— Fort Worth 1984). and assail are used o f findings and holdings o f
lower courts with which an appellant is dis­
a s p o r t a t i o n is a historical TERM OF ART meaning pleased: “Appellants assail particularly these
“the act of carrying off.” The word denotes a neces­ findings by the district court.”/ “The writ o f habeas
82 assassin

corpus involves a collateral attack, while in certio­ a s s a u ltiv e is the only adjective corresponding to
rari the judgment is directly assailed.7 “In my assault. E.g., “The prior conviction here was for
opinion, the county court judge's finding cannot rape— an assaultive crime.”
be assailed and the appeal must be dismissed
with costs.” (Eng.) a s s a u lt w ith in t e n t to c o m m it r a p e ; a s s a u lt
t o r a p e . Both forms occur in criminal cases, the
The latter is a n e e d l e s s
a s s a s s in ; a s s a s s in a to r . former being somewhat more common. See r a p e
v a r i a n t . “The first amendment is not a shelter (c).
for the character assassinator [read assassin].”
a s s a y ; e s s a y . These words, related etymologi­
a s s a u lt; These terms have distinct
b a tte ry . cally, have distinct meanings. Assay = to test, to
meanings in criminal and in tort law. Essentially, analyze. E.g., “The degree o f harm must be as­
an assault is the use or threat o f force upon sayed in light o f the entire charge, the state of
another that causes that person to have a well- the evidence, the arguments o f counsel, and any
founded fear of physical injury or offensive touch­ other relevant information revealed by the record
ing. A battery is the use of force or violence on o f the trial as a whole.”/ “Tenuous theories o f
another (in the criminal sense), or any repugnant liability are better assayed in the light o f facts
intentional contact with another (in the tortious than in a pleader's suppositions.”
sense). Cf. a c c o s t . Essay, though sometimes used synonymously
Shooting a gun just to the side of someone, if as a verb with assay, most frequently takes on
that person reasonably fears physical injury, or the meaning “to attempt; to try to accomplish.”
shooting a blank gun directly at someone would E.g., “The supreme court o f the state has decided,
be an assault Hitting someone with a bullet in a case definitely involving the point, that the
makes the act a battery, even if the person never legislature has not essayed to interfere with the
knew of the hit. In the tort sense, an uninvited constitutional liberty o f citizens to organize a
kiss by a stranger would be considered a battery. party and to determine the qualifications o f its
See b a t t e r y . members.”/ “Lawyers' language essays precision
L eif notes that the distinction is observed only by choice o f particular words and phrases, and by
by lawyers, and even by them not consistently: devices o f composition such as numbering, let­
“[I]n ordinary language, and even to some extent tering, indexing, and even symbolic logic.” Essay
in legal talk, the two are conflated, and one speaks thus used is quite formal and somewhat archaic;
o f an assault frequently in referring to the whole attempt or try serves better in ordinary contexts.
incident, from the threat through its consumma­ Cf. e n d e a v o r .
tion. Indeed, at least in ordinary understanding,
use of the word assault most likely requires the a s s e m b l a g e ; a s s e m b l y . An assemblage is a dis­
actual battery; most people would not use ‘He got organized group o f persons or things. An assembly
angry and assaulted her' to describe an incident is a group o f persons that is organized and united
in which no physical contact was made.” Arthur for some common purpose.
A. Leff, The Leff Dictionary o f Law, 94 Yale L.J.
1855, 2069 (1985). a s s e m b ly , u n la w fu l. See r i o t .

(= one who is assaulted) is a mid-


a s s a u lte e These words are very close in
a sse n t; co n sen t.
20th-century legal n e o l o g i s m omitted from most meaning, yet “there is some implication that as­
English-language dictionaries. E.g., ‘T h e appel­ sent is more active and enthusiastic than consent,
lant denied that he assaulted the assaultee for the meaning o f which sometimes slides over al­
any purpose other than getting her money . . . .” most to ‘acquiescence.'” Arthur A. Leff, The Leff
McKee v. State, 33 So. 2d 50, 53 (Fla. 1947) (en Dictionary o f Law, 94 Yale L.J. 1855, 2069 (1985).
banc) (Chapman, J., dissenting)./ “The intent to
kill may be established by a number o f circum­ a s s e n t e r ; a s s e n t o r . For “one who assents,” as-
stances, such as, the fact that the weapon is senter is standard. Assentor has the specialized
directed at some vital spot on the assaultee’s body legal meaning in England o f “one who, in addition
. . . .” Caraker v. State, 84 So. 2d 50, 51 (Fla. to the proposer and seconder o f a candidate's
1955)./ “Self-defense is relative. It is available as nomination in an election, signs the nomination
an exculpation, or an excuse for assault, to an paper o f that candidate.” It should not be used in
assaultee, not an assailant.” State v. Brent, 347 other senses.
So. 2d 1112, 1116 (La. 1977). See -e e .
a s s e r te d ly . See r e p o r t e d l y , a l l e g e d l y & c o n ­
a s s a u lte r . So spelled. f e s s e d ly .
associational 83

a ssertiv e; a ssertory . The former is the word for undertaking to prescribe a form o f permissible
ordinary purposes; the latter was at one time picketing is challenged.”
used by grammarians in reference to sentences or
constructions in the form o f affirmations. As­ a ssig n o r; a ssign er. In all legal senses, assignor
sertory is used in but one legal phrase, assertory is preferred; it is the correlative o f assignee. As­
oath, which denotes a statement o f facts under signer has appeared in nonlegal contexts, and
oath. there it should remain. See -ER (A).

assertor, not asserter, is the usual agent noun assise. See assize.
corresponding to the verb assert. See -ER (A).
assist, n., has come into the language through
assessm ent. See tax. basketball lingo <with an assist from counsel>. It
should be avoided as a newfangled variant of
asseverate. See av er. assistance.

assist, v.t., is usually inferior to help.


assign , v.t., is frequently merely an inflated syn­
onym o f give. E.g., “We dismiss for reasons ex­
a ssista n ce. The phrases to provide assistance
pressed above and those assigned by the district
and to be o f assistance— containing the b u r ie d
court.” The verb is a less inflated l e g a l i s m when
v e r b assistance— are generally much inferior to
used in the sense "to transfer,” as in “He assigned
his right in the property to his son.”
help.

assize, n., = (1) a session o f a court or council;


assign , n.; a ssign ee. Both words mean “one to
(2) a law enacted by such a body, usu. one setting
whom property rights or powers are transferred
the measure, weight, or price o f a thing; (3) the
by another.” Assignee is more understandable to
procedure provided for by such an enactment; (4)
nonlawyers, who know assign as a verb only.
the court that hears cases involving that proce­
The d o u b l e t heirs and assigns is unlikely to
dure; (5) a jury trial; or (6) the jury’s finding in
disappear, however; assign as a noun almost al­
such a trial. In short, this word is, historically
ways appears, as in the phrase just adduced, in
speaking, a c h a m e l e o n -h u e d w o r d .
the plural.
In the plural (assizes), the term refers to the
sessions or sittings o f a court, especially o f a
a ssign a b ility . See n e g o tia b ility , superior court in England or Wales, held twice a
year, at which cases were tried by a judge and
a ssign ee. See assign , n. jury. The assizes ceased to exist in Great Britain
after the Courts Act 1971. Assise is a variant
assign er. See a ssign or. spelling generally best avoided.

a ssign m en t; a ssign a tion . Assignment = (l)t h e a sso cia te to g e th e r is a r e d u n d a n c y ; associate


transfer o f property, or the property so trans­ together in groups is even worse: “The first
ferred; (2) the instrument o f transfer; or (3) a task amendment protects the right o f all persons to
or job. See n e g o tia b ility . associate together in groups to further [read to
Assignation - (1) assignment; (2) tryst; or (3) associate in furtherance of\ their lawful interests.”
assign (meaning “one to whom property rights or
powers are transferred”). Assignation is a NEED­ a s so cia tio n a l; a sso cia tiv e . The OED defines
LESS v a r i a n t in senses (1) and (3), and should be these words as virtual synonyms (“of, pertaining
confined to sense (2), in which it is truly useful. to, or characterized by association”). It suggests,
In sense (1), however, assignation is the usual however, that associational refers to particular
and proper term in Scots law. associations <his associational loyalties>,
whereas associative refers to association gener­
assign m en t o f e r r o r = a specification o f errors ally. But W3 suggests that associative is now
made at trial and contained in an application for largely confined to contexts involving psychology
writ o f error directed to an appellate court. On and mathematics.
appeal one assigns error to certain alleged preju­ Certainly the usual term in legal contexts is
dicial mistakes at trial. (See e r r o r (a ).) E.g., “By associational: “Further, it is extremely doubtful
proper assignments o f error and cross-errors, the that the rights to visitation asserted by the
correctness o f each o f the trial court’s conclusions Thornes are the sorts o f associational rights pro­
of law and that part o f the temporary injunction tected by the first amendment.”/ “Any thought
84 assoil

that due process puts beyond the reach o f the one o f the most troublesome.” Peter W. Davis,
criminal law all individual associational relation­ Comment, Restitution: Concept and Terms, 19
ships, unless accompanied by the commission o f Hastings L.J. 1167, 1182 (1968). The term origi­
specific acts o f criminality, is dispelled by familiar nally applied to an action for breach o f a simple
concepts o f the law o f conspiracy and complicity.” contract, then was extended (after Slade's Case
Scales v. U.S., 367 U.S. 203, 225 (1961). [1602]) to cases in which no independent
agreement to pay could be proved, and finally to
Assoil (= to par­
a s s o il; a s s o ilz ie ; a b s o lv ito r . implied contracts and quasi-contracts. This CHA-
don, release, acquit) is an obsolete ecclesiastical MELEON-HUED WORD is no longer widely used by
term for the reversal o f an excommunication. As­ common-law courts; in England the cause o f ac­
soilzie, a Scottish dialectal variant, is still used tion was abolished by the Judicature Acts of
in civil and criminal Scottish cases in the sense 1873-1875.
“to free o f liability by order of court.” The Scottish
decree is called absolvitor. a s s u m p t i o n , in lay writing, most commonly
means “a supposition”; in legal contexts it fre­
A sson an ce. See a l l it e r a t io n (a ). quently takes on the older sense “the action o f
taking for or upon oneself” (OED). E.g., “It is not
a s s o r t(a t)iv e . The longer form is preferred. clear whether ITT consented to an assumption o f
indebtedness.” See a s s u m e .
a s s u m e ; p r e s u m e . The connotative distinction
between these words is that presumptions are a s s u m p tio n o f th e r is k ; c o n tr ib u to r y n e g li­
more strongly inferential and more probably au­ gence. Originally these two were separate doc­
thoritative than mere assumptions, which are trines, but assumption o f the risk has been, in
usually more hypothetical. E.g., “Defendants rely most jurisdictions, subsumed by the doctrine o f
upon the ancient legal presumption that a woman contributory (or comparative) negligence. Assump­
is considered legally capable o f bearing children tion o f the risk = the principle that a party who
at any age.”/ “Where any document purporting to has taken on the risk o f loss, injury, or damage
be thirty years old is produced from any custody consequently cannot maintain an action against
that the judge considers proper, it is presumed the party having caused the loss. An example o f
that the signature and every other part o f such assumed risk is the man who volunteers his pro­
document is in that person’s handwriting.” (Eng.) file to a friend who wants to practice sword­
Presumptions lead to decisions, whereas as­ throwing.
sumptions do not: “We assume, without deciding, Perhaps because assumption o f the risk as ap­
that except for the provisions o f section 18 o f the plied by the courts came to bar otherwise merito­
Decedent Estate Law the trust would be valid.” rious claims, legal scholars began to point out
The phrase we assume, without deciding, is a that contributory negligence could be applied to
favorite o f common-law courts. any case involving assumption o f the risk. And
Where adverbs are concerned, one should al­ with the rise o f comparative negligence, q.v., the
ways use the common forms derived from pre­ doctrine o f assumption o f the risk became espe­
sume; that is, presumably (= I presume, it is cially unjust if applied to bar a claim. See volenti
to be presumed) or presumptively (= there is a non fit injuria.
presumption at law that). Here the writer seems
to have been trying to avoid the simple term in a s s u m p tiv e ; p r e s u m p tiv e . See a s s u m e .
favor o f an outlandish one: “However, the life
tenant is assumedly [read presumably] entitled to a s s u r a n c e ; in s u r a n c e . The nouns follow from
$5,760 per year.” the verbs; hence the reader might first consult
Assumptive is pretentious for either assumed the next entry. Since ensurance is no longer with
<assumptive beliefs> or assuming or presumptu­ us, insurance is the nominal form o f both insure
ous <an assumptive characters For the sense o f and ensure. Usually, insurance refers to indemni­
presumptive in heir presumptive, see h e i r (B ). fication against loss (from the verb insure); in
BrE, assurance is sometimes given this meaning,
a s s u m in g . See danglers (D). although Partridge notes its decline; its one sur­
viving use in this sense is in reference to life
a s s u m p s i t , a l a w l a t in term, means literally policies. Generally, however, assurance = that
“he undertook” or “he promised.” “O f the terms which gives confidence. See i n s u r a n c e ( b ).
used in connection with the subject o f restitution, In AmE, assurance chiefly means “pledge” or
assumpsit is one o f the oldest and also perhaps “guaranty.” E.g., “To give further assurance [bet­
as to 85

ter: To further ensure] that these rules will not be [read ensure] that the return o f the loser does not
breached, the states may wish to add 'safeguard’ become the guideline o f the judgment.”
provisions.” (See s p l i t i n f i n i t i v e s ( O .)/ “The re­ C. Noun Forms. See assurance.
viewing court may inquire whether there is
adequate assurance that the respondent will be a ssu rer; a ssu ro r. The -er spelling is preferred.
protected against the loss o f proprietary See -ER (a ) & u n d e rw rite r .
information.”/ “The heirs would have no assurance
that the question o f the personal fault o f the as th e ca se m a y b e . See ca se ( a ).
executor would be properly tried.”/ “Respondents
received assurance that the customers would be as th o u g h . See as if.
willing to give them their laundry work.”
Assurance also has the specialized, rather rare as to is a vague, all-purpose preposition that
legal meaning “the act o f transferring real prop­ should be avoided whenever a more specific prepo­
erty.” Assure formerly had the corresponding sition will fit the context. As to does not clearly
meaning “to convey by deed.” establish syntactic or conceptual relationships; it
hampers the comprehensibility o f texts in which
assu re; en su re; in su re. A. Assure fo r ensure . it appears. Were it not a phrase, it might justifi­
One person assures (makes promises to, con­ ably be classed among f o r b i d d e n w o r d s .
vinces) other persons, and ensures (makes certain) A. Indefensible Uses. To illustrate the slippery
that things occur or that events take place. Any variability o f as to, a list o f problematic usages
object beginning with that should be introduced follows; in each example, another preposition
by the verb ensure, if the verb is in the active would more directly and forcefully express the
voice. Here assure, which always takes a personal thought.
object, is properly used: “If Mr. Lucy’s promise to 1. For o f “Registration in the Patent and Trade­
pay for the Zehmer’s farm becomes enforceable mark Office creates presumptions as to [read of]
merely on the Zehmers’ making their promise ownership and the exclusive right to use.”/ “A
in return, how is Lucy assured [correct, because contract in a lease giving an option o f purchase
passive voice] that he will not have to pay the might be good, provided it did not infringe the
price unless he gets the farm?”/ “Although the law as to [read of] perpetuities.”/ “The jury was
court’s instruction did petitioner no harm, it was also instructed that i f it believed appellant was
thought that petitioner was assured a new trial guilty o f either murder or involuntary manslaugh­
if counsel had complained.” ter, but was unsure as to [read of] which, it was
In the following sentences, assure is misused to find him guilty o f the lesser offense.”
for ensure: “This course will be more likely to 2. For on. “The UCC is silent as to [read on or
assure [read ensure] that the police officer will not about] the reconciliation o f different terms.”/ “The
be exposed to personal liability.”/ “The State’s will violates the common-law rule as to [read on]
strong interests in assuring [read ensuring] the contingent remainders.”/ “But the question really
marketability o f property within its borders would must be regarded as an open one, as to [read
also support jurisdiction.”/ “Filing o f a solicitation on] which commentators disagree.”/ “We find no
letter assures [read ensures] the public’s ample authority for the contention that the rule as to
protection.” [read on] the destruction o f contingent remain­
Ensure is properly used in the following sen­ ders should be applied to a case in which the
tences: “Changes were made to ensure against estate is vested in quality but contingent in
overexpenditures in the program.”/ “The verdict quantity.”/ “Because the State produced no evi­
ensured that he would spend a long time in jail.”/ dence as to [read on] this essential element, it is
“The requirement o f minimum contacts ensures impossible to say that a rational trier o f fact could
that the states, through their courts, do not reach have found beyond a reasonable doubt the facts
beyond the limits imposed on them by the status necessary to support the life sentence.”
as coequal sovereigns in the federal system.” 3. For with. “In the business o f life insurance,
B. Insure and ensure . Insure should be re­ the value o f a man’s life is measured in dollars
stricted to financial contexts involving indemnifi­ and cents according to his life expectancy, the
cation; it should refer to what insurance compa­ soundness o f his body, and his ability to pay
nies do; ensure should be used in all other senses premiums; the same is true as to [read with, or
o f the word. Intransitively, insure is commonly perhaps of] health and accident insurance.”
followed by the preposition against <insure 4. For for. “The rule is the same as to [read for]
against loss>; it may also be used transitively specialists.”
cinsure one’s valuables>. Following is a common­ 5. For to. “Offeree must wait until he gets an
place peccadillo: “Care must be taken to insure answer as to [read answer to] his counter-offer.”/
86 as to whether

“Was the option provision too uncertain to be re-appointment, the ruling in McBee v. Jim Hogg
enforced, so that parol evidence should not have County requires rejection o f their section 1983
been admitted as to [read admitted to] clarify its claims.”/ “As to whether the object that this bill
meaning?”/ “He was entirely indifferent as to discloses was sought to be attained [see p a s s iv e
[read indifferent to] the results.” VOICE (F)] by the members o f the union was a
6. For by. “Counsel was continually surprised lawful one, the authorities o f this country are
at trial as to [read by] the evidence presented by clearly in conflict.” In beginning sentences in this
his opponent.” way, as to is equivalent to the more colloquial as
7. For in or into. “When the petition is correct for.
as to [read in] form, a notification shall be The phrase is defensible when used for about.
prepared.”/ “The court submitted issues to the Nevertheless, it is stylistically inferior to about
jury inquiring as to [read into] what was a reason­ in most contexts, as in the following sentences:
able attorney's fee.” “The buyer was silent as to [better: about] the
8. For applicable to. “That is a fundamental disclaimer.”/ “Any doubt as to [better: about] the
doctrine as to [read applicable to] fiduciaries o f existence o f a material fact is to be resolved
all sorts, that it is somewhat surprising to find it against the moving party.”/ “Complaints as to
questioned.” [better: about] procedural irregularities in a con­
9. Completely Superfluous. “The trial court demnation case must, be preserved at the trial
failed to specify as to what [read specify what] court level by motion, exception, objection, plea
predicate under the statute plaintiff relied upon.7 in abatement, or some other vehicle.”
“The Court does not say here as to how [read say The phrase is sometimes a passable shorthand
here how] carefully the survey was conducted.”/ form o f “with regard to” or “on the question of,” a
“The only real issue in the case is as to [read real meaning it properly carries when beginning a
issue . . . is] the question o f insanity.” / “The sentence. E.g., “California has done what we
question is as to [read question is] the validity o f think should here be done; it has made its solution
the twenty-eighth clause o f the will o f Mary C. as to life insurance proceeds consonant with its
Durbow, a childless widow.” See as to w hether & other community property laws.”/ “The trial court
question as to whether. entered judgment o f nonsuit as to all defendants,
10. Used Twice in One Sentence, with Differing from which plaintiff appeals.”/ “The document is
Meanings. “The defense moved for a judgment o f silent as to beneficial title.” (Eng.)/ “The district
acquittal as to [read on] all counts, arguing, as to court erred in denying the new trial sought as to
[read with respect to] the tax evasion count, that the dismissal.” In each o f these sentences the as
an affirmative act of concealment had to be found to phrase can be used to start the sentence and
to convict the defendant.”/ “The question as to link it more firmly with a topic mentioned pre­
[superfluous] whether information as to [read viously.
about] particular processes or other matters was
‘confidential’ or ‘secret' is outside the scope o f this as to w h e th e r. The Fowlers describe it as “sel­
annotation.”/ “Petitioner's right to a salary before dom necessary” in The King's English 344 (3d
it was voted to him was so indefinite as to [read ed. 1930). That judgment has withstood the test
in] both amount and obligation as to be [read that o f time. See as to (a )(9) & q u e stio n as to
it was] unenforceable.”/ “It is the contention o f w h eth er.
the contestant that the residuary legatees under
the will so unduly and improperly influenced the as w as. See as is.
testator to make the will in their favor as to [read
with regard to] the residue o f this estate as to as w ell. When used at the beginning o f a sen­
render [read that they rendered] the will o f no tence, this phrase is a casualism at best—e.g.: “As
legal effect.” In each o f the last two sentences well, [read Also,] people are questioning how well
quoted, the final as to is a part o f the phrase so the legal system really does protect people's
. . . as to, q.v. The suggested changes o f those rights.” Alan Reid, Seeing Law Differently 4
phrases to clauses beginning with that are for the (1992).
purpose merely o f enhancing clarity; apart from
the confusion caused by using as to twice in differ­ as w e ll as. See to g e th e r w ith & s u b j e c t -v e r b

ent senses, the phrase so . . . as to is used in AGREEMENT (G).


those sentences in a technically proper way.
B. D efensible Uses. The phrase is most justifi­ as w ell as o r b e tte r than. Some writers illogi-
able when introducing the discussion o f a matter cally leave out as after well— e.g.: “Women would
previously mentioned only cursorily in the text: write in detail why they were working as well [as]
“As to these nine plaintiffs who failed to apply for or better than their male counterparts.” Simon
at arm’s length 87

Hoggart, All Present and Incorrect, Observer Sun­ -ATABLE does not generally appear other than in
day, 15 Dec. 1991, at 37, 38. Cf. a s m u c h a s o r -able adjectives derived from two-syllable verbs
m o r e . See il l o g ic (A). (e.g., create, vacate), because in those short words
the adjective would become unrecognizable.
a s y e t is invariably inferior to yet alone, thus far, Fowler notes some long exceptions to the general
or some other equivalent phrase. “The judge has rule (inculcatable, inculpatable, incubatable) and
not decided as yet.” [Read The judge has not states his standard: 'T he practice should be to
yet decided.]/ “One must question whether the use -atable where the shorter form is felt to be
stipulation automatically extended to the not-as- out o f the question.” ( MEU2 41) Other examples
yet-filed claim [read yet-unfiled or yet-to-be-filed with which the shorter form is impracticable are
claim]” (See p h r a s a l a d j e c t i v e s .)/ “N o court has anticipatable, translatable, and infiltratable (so
as yet [read has yet] held that such an injunction that infiltrable not be thought to be derived from
is entitled to full faith and credit in the sense infilter [= to sift or filter in] rather than from
that the action toward which the injunction is infiltrate).
directed must be abated.7 “Plaintiff has as yet The following words, which occur with some
[read thus far] had no opportunity to testify about frequency in legal prose, are better formed with
this matter.” As o f yet is illiterate. Cf. a s o f n o w . -able:

a bbreviate confiscable m an ipu late


a late-20th-century legal n e o l o g i s m , is
a s y le e , a b d ica te cultivable m itig a te
becoming a standard word in the language o f the a b roga te delegable navigable
law for “a refugee applying for asylum.” It has accommodable d elin ea te o b lig a te
not yet made its way into most English-language a ccu m u late demonstrable o b v ia te
dictionaries. Like many personal nouns ending a ctiv a te deton a te operable
in -ee, it is illogically formed. But illogical mor­ adm inistrate differentiable orig in a te
phology has not presented an obstacle to many adu lterate educable participate
other forms ending in -ee. “This portion o f the affiliable exp ropriate penetrable
complaint as amended alleges . . . that plaintiffs a ggregate g en era te perpetrate
as a class are ‘asylees.’ ” Fernandez-Roque v. agitable in d ica te perpetu ate
Smith, 539 F. Supp. 925, 932 (N.D. Ga. 1982). / alienable in eb ria te predicable
“[T]he severity o f harm to the erroneously ex­ allocable inextirpable propa ga te
cluded asylee outweighs the administrative bur­ an n ih ila te inextricable regulable
den o f providing an asylum hearing.” Chun v. appreciable infatuable replicable
Sava, 708 F.2d 869, 877 (2d Cir. 1983). See -EE. appropriable in fu ria te repudiable
The popular press tends to use the phrase asy­ arbitrable in tegra te segrega te
lum-seeker (a phrase best hyphenated)— e.g.: articulable in va lida te su b ju ga te
“More than 10,440 Haitians are in custody at calculable investigable v in d ica te
Guantanamo, and more asylum-seekers are on communicable is o la te v io la te
cutters offshore.” Barbara Crossette, U.S. Starts compensable litig a te v itia te
Return o f Haiti Refugees After Justices Act, N.Y.
Times, 2 Feb. 1992, at 1./ “Asylum seekers poured These phrases are
a t a ll e v e n ts ; in a n y e v e n t.
into Germany last month at the rate o f more than perfectly synonymous. The former is more com­
one a minute . . . .” Christopher Parkes, Asylum mon in BrE, the latter in AmE. Yet at all events
Seekers Flood Germany, Fin. Times, 5 Aug. 1992, does appear infrequently in American texts as
at 1. well: “At all events, from an early date, if not in
Glanville’s time, the necessity o f a formal delivery
at is incorrect when used with any locative such o f devised land to the executor was got rid o f
as where— e.g.: “Where is it at?” A curious exam­ in England as Beseler says that it was on the
ple appears in the writing o f Llewellyn: “[I]ts continent.” (Holmes)/ “When the option to pur­
central notice-filing provisions make it cheap and chase is given to Clarkson, it prima facie at all
easy for the prospective seller to find out just events means to include Clarkson’s assigns.”
where he is at.” Karl N. Llewellyn, Why We Need In legal writing these phrases are preferable to
the Uniform Commercial Code, 10 U. Fla. L. Rev. in any case when used in the same sense, because
367, 379 (1957). U.S. District Judge William Ter­ in any case contains the confusingly ambiguous
rell o f Florida reports that, as an editor o f the word case, q.v., which usually refers to a lawsuit
law review in 1957, he tried unsuccessfully to in legal contexts.
persuade Llewellyn to omit the at. See p r e p o s i ­
t io n s (A). a t a r m ’s l e n g t h . See a r m ’s -l e n g t h .
88 at bar

at b a r. See at (th e) b a r. worked c l i c h é . The variant phrase on first blush


is not idiomatic. See p rim a fa cie .
at b e n ch . See ca se at b e n c h .
at h a n d ; in h a n d . In the U.S., the former has
at c ir c u it. See c ircu it, to rid e . ousted the latter in figurative senses, because in
hand is most frequently used literally, as in “I
at co m m o n law , a LOAN TRANSLATION o f the l a w have the contract in hand” One still occasionally
FRENCH al common ley, is the legal idiom used sees the figurative in hand, but this is not the
to introduce statements o f common-law doctrine. current idiom: “When justice in the cause in hand
E.g., “At common law, the death o f the injured [read at hand] has been attained as near as may
person or o f the tortfeasor, at any time before be and has been attained on grounds and in a
verdict, abated the action.”/ UiAt common law,’ manner prescribed by law, the duty o f the judge
says Sir W. Erie, ‘every person has individually, under the civil law has been performed.”/ “In their
and the public also have collectively, a right to briefs in connection with Smith's motion, counsel
require that the course o f trade be kept free from on both sides state that they have been unable to
unreasonable obstruction/ ” (Eng.) The preposi­ find any case dealing with the specific problem in
tion at is not used, however, in references to either hand [read at hand].”
equity or civil law. In G.B., however, in hand is frequently used in
As in the two examples quoted, some writers the metaphorical sensef “The court might have
use the past tense when introducing a statement reached the same decision on the simple ground
with the phrase at common law. Others use the that the rule in Clayton’s case was irrelevant to
present tense. Neither method can be recom­ the issue in hand” (Eng.)
mended for all cases, but it is possible to formulate
a rule: when referring to a rule that is long since at issu e. See issu e (a ).
defunct, use the past tense; but when referring to
a rule that has some continuing validity, use the at law . See u n d e r law .
present tense.
at p resen t. See at th e p re se n t tim e.
at fau lt; in fau lt. An American critic once wrote
that “hunting dogs [that] lose the scent are said a tta ch . See a n n ex.
to be at fault. Hence the phrase means perplexed,
puzzled.” He added that in fault means “in error, a tta ch e d h e re to , a r e d u n d a n c y for attached, is
mistaken,” with this example: “No certified public a l e g a l i s m to be avoided.
accountant should be in fau lt” Clarence Stratton,
Handbook of English 24, 158 (1940). Today, how­ a tta ch m en t = (1) the taking into custody o f a
ever, in fault is seldom used in that way. person to hold that person as security for the
The phrase at fault is now standard in the sense payment o f a judgment; or (2) the taking into
“responsible for a wrong committed; blamewor­ custody o f a person’s property to secure a judg­
thy.” E.g., “Apportionment o f the percentages o f ment or to be sold in satisfaction o f a judgment.
fault among the parties found to be at fault cannot Sense (1): “[Courts o f equity] may order a writ of
be accepted.” The phrase is virtually never used attachment for the arrest and detention o f the
synonymously with perplexed or puzzled. body o f the contumacious party until obedience to
the decree has been secured.” Eugene A. Jones,
at first blu sh . This phrase, common in legal Manual o f Equity Pleading and Practice 139
writing, occurs in BrE as well as in AmE. At first (1916). / Sense (2): “The disputed residence was
blush is a home-grown equivalent o f the LATINISM important because a writ o f attachment—briefly,
prima facie, q.v., but the two have distinct uses. an order freezing cash or other assets— cannot be
Rather than serving as a simple adjective or ad­ obtained against a person unless the person has
verb like prima facie, the phrase at first blush a foreign address.” Joseph Goulden, The Million
conveys the sense “upon an initial consideration Dollar Lawyers 52-53 (1978). See seq u estra tion .
or cursory examination.” Blush here carries an
otherwise obsolete sense: “a glance, glimpse, attain, v.t.; o b ta in . The two are sometimes con­
blink, or look.” E.g., “At first blush, a reading o f fused. Attain = to achieve, accomplish. E.g., “An­
the rule would countenance joinder o f the United other’s business may be attacked only to attain
States as a defendant along with another defen­ some purpose in the eye o f the law.” Obtain = to
dant in a situation such as is present here.”/ “At get, acquire cobtain a license>. It is a FORMAL
first blush this punishment does not seem very WORD.
severe.” At first blush is becoming a grossly over­ Attain, in another sense, is also a FORMAL WORD
at (the) bar 89

for “to reach (an age)”. E.g., “In Saunders v. Vau- whether the abortion itself is effected or not.”
tier, the English Chancery Court granted a peti­ Glanville Williams, The Sanctity o f Life and the
tion by the sole beneficiary to terminate a trust Criminal Law 180 (1957).
upon his attaining the age o f majority.” B. A nd endeavor; assay . See e n d e a v o r &
assay.
atta in d er; attain t, n. Both nouns derive from
the (originally French) verb attaint ( = to accuse, a ttestan t. See a ttester.
convict). As legal terms they are primarily o f
historical interest. Attainder usually appears in a tte sta tio n cla u se; te stim o n iu m cla u se. Both
the phrase bill o f attainder or act o f attainder, appear at the end o f a will. The testimonium
and means “the act o f extinguishing someone’s clause is signed by the testator, the attestation
civil rights by sentencing the person to death or clause by the witnesses to the will. A typical
declaring the person to be an outlaw, usu. in testimonium clause reads: “This will was signed
punishment for treason or a felony.” by me on the 14th day o f October, 1985, at Wil­
Attaint was formerly used to mean “the convic­ mington, Virginia.” Testimonium clauses have
tion o f a jury for giving a false verdict” (OED). traditionally begun with the phrase in witness
E.g., “An action called ‘attaint9 could be brought whereof, q.v. See te stim o n iu m cla u se.
against jurors for giving a false verdict, and if it The attestation clause recites the formalities
was successful the verdict would be quashed.” required by the jurisdiction in which the will
J.H. Baker, An Introduction to English Legal His­ might be admitted to probate. It raises a presump­
tory 156 (3d ed. 1990). tion that the formalities recited have been per­
formed and thus aids the proponent o f the will at
attain t; taint. These terms were originally unre­ probate. A typical attestation clause reads: “The
lated, but the senses o f the former came to be foregoing instrument, consisting o f four typewrit­
heavily tainted by erroneous association with the ten pages, was signed and declared by the testator
latter. Attaint = (1) to subject to attainder, to to be her last will in the presence o f us, who, at
condemn; (2) to touch or affect; or (3) [obs.] to her request, and in her presence and the presence
accuse. Attaint is justified today only in sense (1); o f one another, have subscribed our names as
taint is otherwise the better word. E.g., “In trials witnesses.”
for high treason, or misprision o f treason, no one In Scots law, the attestation clause is called a
can be indicted, tried, or attainted (unless he testing-clause.
pleads guilty) except upon the oath of two lawful
witnesses.” (Eng.) a ttest(a t)iv e; a ttesta tion a l. Attestative is the
Taint = (1) to imbue with a noxious quality or b e st adjective corresponding to attestation; it
principle; (2) to contaminate or corrupt; or (3) to m e a n s “o f or re latin g to atte sta tio n .” Attestational
tinge or become tinged. Taint is by far the more is a NEEDLESS VARIANT. Attestive is a NEEDLESS
common word in modem writing: “The Court v a r ia n t of attesting.
found that the initial illegal entry did not taint
the discovery o f the evidence subsequently seized a ttester; a ttestor; a ttesta tor; a ttestan t. At­
under the valid warrant.”/ “It is urged that if tester is standard in legal contexts. The others
evidence is inadmissible against one defendant or are n e e d l e s s v a r ia n t s .

conspirator, because tainted by electronic surveil­


lance illegal as to him, it is also inadmissible at (the) b a r (= now before the court) derives
against his codefendant or co-conspirator.” from the LAW FRENCH phrase al barre. At the bar,
Taint is just as frequently used as a noun: “The which appears in early decisions such as Marbury
practice is not shown to be such as to fix upon v. Madison and McCulloch v. Maryland, has grad­
complainant the taint o f unclean hands.” ually been displaced in the U.S. by at bar in
phrases such as in the case at bar. E.g., “In the
attem p t. A. Criminal attempt. In criminal law, case at bar there was no necessity o f proving spite
attempt refers to the crime o f intending to commit or ill will toward the plaintiff.”/ “We think that
a crime, along with taking a step to carry out the no more was covered than situations substantially
crime. E.g., “Mallory thereupon pleaded guilty to similar to those then at bar.”
the crime o f attempt to commit burglary o f the The British still use at the bar, “Until the pres­
second degree and was given a short county jail ent argument at the bar it may be doubted
term.” People u. Eastman, 154 P.2d 37, 37 (Cal. whether shipowners or merchants were ever
Ct. App. 1944)./ “In England, indeed, the abortion deemed to be bound by law to conform to some
legislation is worded only in terms o f attempt, it imaginary ‘normal’ standard o f freights or prices.”
being immaterial for the purpose o f the offence (Eng.)
90 at the present day

One writer states that at bar is used, esp. in argue. Attorney, it seems, soon developed an un­
law school, to refer to a case already decided and pleasant smell about it: one commentator writes
at the time under discussion by professor and that the 18th-century efforts “to deodorize the
students. Arthur A. Leff, The Leff Dictionary of word attorney [were] later abandoned, and in the
Law, 94 Yale L.J. 1855, 2088 (1985). This usage nineteenth century it was supplanted in England
is probably peculiar to certain law schools; to by solicitor. There solicitor lacks the offensive
those unfamiliar with it, it smacks o f the judge- American connotation, as in ‘No peddlers or solici­
manqué. Cf. at (the) tria l. See sub ju d ice. tors.’ In England, attorney, for a lawyer, survives
only as the attorney (the attorney general), while
at th e p re se n t d a y is inferior to today— e.g.: in America the chief respectable lawyer-solicitor
“Criminal proceedings at the present day [read is the solicitor-general.” David Mellinkoff, The
today] do not result only in death, imprisonment Language o f the Law 198 (1963).
or fine . . . .” O. Hood Phillips, A First Book o f The two most common terms in AmE, lawyer
English Law 192 (3d ed. 1955). and attorney, are not generally distinguished even
by members o f the profession. In the U.S., attor­
at th e p re se n t tim e; at th is tim e; at p resen t. ney, attorney-at-law, and lawyer are generally
These are inferior to now, nowadays, or today. viewed as synonyms. Today there seems to be a
notion afoot, however, that attorney is a more
formal (and less disparaging) term than lawyer.
at th e tim e that; at th e tim e w h en . These
Technically, lawyer is the more general term,
phrases are invariably verbose for when.
referring to one who practices law. Attorney liter­
ally means “one who is designated to transact
at (the) trial. The shorter form is the more usual
business for another.” An attorney, technically
and the more idiomatic in AmE. “At the trial [read
and archaically (except in the phrase attorney in
at tried], a nonsuit was denied.” In the U.S. at the
fact [see ( b ) below]), may or may not be a lawyer.
trial is outmoded except as an adverbial o f place
Thus Samuel Johnson’s statement that attorney
<he was seen at the trial>. Cf. at (the) b a r.
“was anciently used for those who did any busi­
In BrE, however, judges still write at the trial:
ness for another; now only in law.” A Dictionary
“The practice has been, wherever possible, to ad­
o f the English Language (1755) (s.v. attorney).
duce at the trial, before pronouncement o f decree
From the fact that an attorney is really an
nisi, evidence o f the proposed arrangements for
agent, Bernstein deduces that “a lawyer is an
the children.” (Eng.)
attorney only when he has a client. It may be that
Still another vanishing idiom is on (or upon)
the desire o f lawyers to appear to be making a go
the trial: “On the trial plaintiff was nonsuited.”/
o f their profession has accounted for their leaning
“No such evidence was produced upon the trial.”
toward the designation attorney.” Theodore M.
Today both phrases would be at trial in American
Bernstein, The Careful Writer 60 (1965). Yet this
legal writing. See trial, at.
distinction between lawyer and attorney is rarely,
if ever, observed in practice.
at th is tim e. See at th e p re se n t tim e. In the U.S., those licensed to practice law are
admitted to practice as “attorneys and counsel­
attorn , vb., is pronounced ld-tarnl. See a tto rn ­ ors.” (The -Z- spelling o f counselor is preferred in
m ent. AmE, the 41- spelling in BrE. See DOUBLING OF
FINAL CONSONANTS.) This combination o f names
attorn ey . A. And Its Near Synonyms. Law­ is unknown in English law, in which attorney =
yers, like those in other walks of life, have long solicitor, and counsellor = barrister. Yet “in the
sought to improve their descriptive titles. Boswell United States, the term attorney has come to have
relates: “The Society o f Procurators, or Attornies, a generic significance that embraces all branches
had obtained a royal charter, in which they had o f legal practice.” G.W. Warvelle, Essays in Legal
taken care to have their ancient designation Proc­ Ethics 53 (1902).
urators changed into that o f Solicitors, from a In G.B., a solicitor or attorney does all sorts o f
notion, as they supposed, that it was more gen­ legal work for clients but generally appears only
teel.” 4 Life of Johnson 128 (1791). in inferior courts; a barrister is a trial lawyer or
The connotations of attorney and its near syn­ litigator.
onyms have historically been quite different in In AmE, counsel and counselor are both, in
BrE and AmE. Originally, attorney denoted a one sense, general terms meaning “one who gives
practitioner in common-law courts, solicitor one (legal) advice,” the latter being the more formal
in equity courts, and proctor one in ecclesiastical term. Counsel may refer to but one lawyer coppos-
courts; all instructed barristers to appear and ing counsel contends> or, as a plural, to more
aught 91

than one lawyer <opposing counsel con ten ds See ing to land. It may mean either (1) “an act by a
c o u n s e l ( b ) & p ostm an . bailee in possession o f goods on behalf o f one
B. Kinds o f A ttorneys {attorney in fact ; attor­ person acknowledging that he will hold the goods
ney at law ). The former means “one with power on behalf o f someone else” (CDL); or (2) “a person’s
o f attorney to act for another; legal agent.” E.g., agreement to hold land as the tenant o f someone
“It is held in Tynan v. Paschal that a letter o f a else.” Both senses are used in BrE and AmE.
decedent to his attorney in fact directing him to An English court has stated that the attornment
destroy his will does not operate ipso facto as a clause in mortgages “is entirely obsolete and at
revocation o f it.” The latter means “a licensed the present time performs no useful purpose.”
làwyer.” The plural forms are attorneys in fact Steyning & Littlehampton Bldg. Society v. Wilson,
and attorneys at law. See (d ). [1951] Ch. 1018, 1020.
C. As a Verb. Attorney, like lawyer, has come
to be used as a verb. E.g., “Among a number o f a t t r a c t i v e n u i s a n c e (= a dangerous condition
mock trials that lawyers have liked to write is a that may attract children onto a property owner’s
Trial of Sir John Falstaff, wherein the Fat Knight land, thereby causing a risk to their safety) is
is permitted to answer for himself concerning the a seeming OXYMORON. Statements such as the
charges against him, and to attorney his own following illustrate the irony o f the phrase: “We
case.” (Eng.) See la w y erin g . have no hesitation in affirming the jury’s conclu­
D. Plural. Attornies is an obsolete plural o f the sion that the filthy, polluted, weed-choked, gar­
word (see the quotation from Boswell under (A) bage plagued drainage canal located near a school
o f this article); attorneys is now the universally . . . constituted an attractive nuisance.” Orange
accepted plural. Cf. m on ie s, which is inferior to County v. Gipson, 539 So. 2d 526, 529 (Fla. Dist.
moneys. Ct. App. 1989). See n u i s a n c e .

a t to r n e y -c lie n t p r iv ile g e should be hyphen­ a t tr ia l. See a t ( t h e ) t r i a l .


ated.
a t t r i b u t e , n.; a t t r i b u t i o n . Although these terms
a tto m ey d o m . See l a w y e r d o m . overlap to a great extent, a distinction might
advantageously be observed: attribution = the
a t t o r n e y g e n e r a l , made plural, forms attorneys act or an instance o f ascribing a characteristic or
general in AmE, attorney-generals in BrE. See quality; attribute = a characteristic or quality so
PLURALS (E). ascribed.

a tto m e y in g . See a t t o r n e y (c ) & l a w y e r , v.i. a ttr ib u tiv e ; a ttr ib u to r y . The former is the stan­
dard term.
a tto r n e y ’s fe e s ; a t to r n e y s ’ fe e s ; a t to r n e y fe e s ;
c o u n s e l f e e s . The first o f these now appears to a t v a r ia n c e . See v a r i a n c e .
be prevalent. See Attorney's Fee Act, 42 U.S.C. §
1988 (1988). The plural possessive attorneys* fees a t w h ic h tim e is invariably prolix for when.
is just as good, and some may even prefer that
term in contexts in which there is clearly more a t w i l l . Employee at will is an ellipsis for em­
than one attorney referred to. Attorney fees is ployee at [the employer’s] will. At will is slowly
inelegant but increasingly common. It might be changing from its position after the noun into a
considered a means to avoid having to get the position before the noun it modifies <an at-will
apostrophe right. (But cf. the phrase expert- employee>. See p o s t p o s it iv e a d j e c t i v e s . Cf.
witness fees.) Counsel fees is another, less-than- t e n a n t a t w i ll .
common variant.
The only form to avoid at all costs is attorneys a t y p ic a l; u n ty p ic a l. The preferred term is atyp­
fees, in which the first word is a genitive adjective ical.
with the apostrophe wrongly omitted. This form
appears in Arthur A. Leff, The Leff Dictionary a u c t o r i a l. See a u t h o r i a l .
o f Law, 94 Yale L.J. 1855, 1969 (1985), under
“affirmative relief.” See p o s s e s s i v e s (E). a u g h t ( = [1] anything; [2] all) is an a r c h a i s m to
be avoided. E.g., “For aught that appears [read
a tto r n ie s . See a t t o r n e y (d ). For all that appears], the essence o f what peti­
tioner seeks either has been revealed to him al­
has two analogous senses, the first
a tto rn m e n t ready through the interrogatories or is readily
relating to personal property and the second relat­ available to him.” Hickman v. Taylor, 329 U.S.
92 auspices

495, 509 (1947)./ “For aught appearing [read For The latter is a stuffy n e e d ­
a u t h o r ia l; a u c to r ia l.
all that appears], Patel has not sought legal en­ less VARIANT o f the former.
try.” Patel v. Sumani Corp., 660 F. Supp. 1528,
1535 (N.D. Ala. 1987). Cf. n a u gh t. a u to g ra p h . See a l l o g r a p h .

a u sp ices. Under the auspices is frequently mis­ n. These equivalents are


a u to p sy ; p o stm o rte m ,
construed as meaning “in the form o f” or “in each current in AmE and BrE. Autopsy is slightly
accordance with.” Actually, it means “with the more common in AmE, postmortem in BrE.
sponsorship or support of.” The term is properly
used in this sentence: “The contest was determin­ v.t., was not until recently recorded in
a u to p sy ,
able under the auspices o f the newspaper com­ the dictionaries. It means “to perform a postmor­
pany.” tem examination on.” E.g., “Their testimony
Here are examples o f the all-too-frequent mis- should be rejected as a matter o f law because it
usage: “The issue on appeal is the extent to which ignored pathological studies o f autopsied tissues
the Federal Savings and Loan Insurance Corpora­ o f the bronchi and lungs that did not reveal the
tion, under the auspices o f [read in the form of\ presence o f chromates.”
a receivership or conservatorship, can preclude
judicial review o f a state claim.”/ “After rendition autrefois loh-tdr-foyz/ is a l a w f r e n c h term,

o f the circuit court’s opinion and order, plaintiffs meaning “on another occasion, formerly,” used in
filed a motion for new trial with the court o f the phrases autrefois acquit ( = a plea in bar of
appeals under the auspices o f [read under or in arraignment that the defendant has been acquit­
accordance with] Fed. R. Civ. P.50(d).” See aegis. ted o f the offense by a jury) and autrefois convict
(= a plea in bar o f arraignment that the defen­
dant has been convicted o f the offense by a jury).
a u ta rch y ; au tark y. Autarchy = absolute rule
These phrases are much more common in G.B.
or sovereignty, autocracy. Autarky = national
than in the U.S.
economic self-sufficiency; isolationism.

autre vie9p u n See p u r a utre vie .


a u t h e n t i c a t i o n — so
spelled—is occasionally mis-
rendered authentification. E.g., “[NJeither the
a u x i l i a r y is a bastard formation probably having
statutory authority nor the case law require[s]
arisen from confusion o f auxiliary with ancillary.
authentification [read authentication] o f signa­
tures.” Commonwealth v. Gordon, 633 A.2d 1199,
a v a i l , vb., because it is most properly a reflexive
1204 (Pa. Super. Ct. 1993).
verb only <he availed himself o f the opportun-
ity>, does not work in the p a s s iv e v o i c e . E.g.,
a u th o r is becoming standard as a verb, though “Congress meant that damages from or by floods
fastidious writers still avoid it. Generally it is a should not afford any basis o f liability against the
highfalutin substitute for writey compose, or cre­ United States regardless o f whether the sovereign
ate. E.g., “Shelley v. Kraemer stands at least for immunity was availed o f or not [read whether
the proposition that, where parties o f different the government availed itself o f sovereign
races are willing to deal with one another, a state immunity].”/ “Sovereign immunity could not at
court cannot keep them from doing so by enforc­ that time be availed o f by them for their participa­
ing a privately authored [read created] racial tion in such wrongful conduct.” Barrett v. U.S.,
restriction.”/ “The orderly administration o f an 798 F.2d 565, 574 (2d Cir. 1986). [Read: They
injunctive decree must be carried through by the could not then avail themselves o f sovereign im­
court that authored [read composed or originated] munity because they had participated in such
and is administering that decree.” wrongful conduct.]
Nor is attribution to a collective body among The verb is best not used as a nonreflexive
the legitimate uses o f this word: “Congress transitive or intransitive verb. In each o f the
adopted an inclusionary approach when it au­ following examples, help, profit, or benefit should
thored [read drafted or framed] this rule.” Coau­ replace avail: “The defence o f fair dealing may
thor has been considered more acceptable as a avail a defendant who cites passages from the
verb, perhaps because co-write seems deadpan. plaintiff’s work in order to criticise the underlying
See n o u n s a s v e r b s . doctrine or philosophy.” (Eng.)/ “Plaintiff has not
With reference to the author ( = I), see FIRST brought this action under any o f the civil-rights
PERSON (B). statutes, and it would not have availed him if
he had.”/ “Plaintiff testified that the contract o f
au th o ress. See s e x is m (C). employment was for life; even if it were, however,
aviate 93

the contract would avail him nothing, for an em­ a v era g e is a word that assumes a broad sample
ployment contract for life is prohibited under our o f subjects. The word does not mix well with
law.” each: “Each Houston partner averages ten years o f
Houston experience.” [Read Partners in Houston
a v a ilm en t ( = the act o f availing oneself o f some­ have an average o f ten years' experience.] See e a ch
thing) has scant support in the OED and is omit­ (B ).
ted from most other English-language dictionar­
ies, but the word is now widely used in American a v era g e a b le . So spelled.
legal writing. E.g., “[T]he employment o f the
known pure electron discharge above ionization a v erm en t; a v e rra l. Averment is the preferred
voltages in tubes o f the DeForest type was but noun corresponding to aver in both AmE and BrE.
the availment o f those skilled in the art o f the E. g., “One plea on which the respondents’ case
store o f knowledge that had been accumulated depends is the relevancy o f averments.” (Eng.)/
and lay ready at hand . . . General Elec. Co. “Upon review o f a dismissal for failure to state a
v. DeForest Radio Co., 23 F.2d 698, 707 (D. Del. claim, we must accept all well-pleaded averments
Cir. 1928)./ “The conditions necessary for as true and view them in the light most favorable
availment o f this provision-are not present in the to the plaintiff.” Averral is a n e e d l e s s v a r i a n t .
instant suit.” Henderson v. Prudential Ins. Co.,
238 F. Supp. 862, 866 (E.D. Mich. 1965)./ “If av erse. See a d v erse.
on remand the plaintiffs amend their pleadings
accordingly, they will have established a case on a v e rt (= to turn away, prevent), when used for
the purposeful availment issue sufficient to resist advert, is a m a l a p r o p is m if it is not merely a

dismissal on the face o f the pleadings.” Thompson typographical error—e.g.: “Appellee correctly
v. Chrysler Motors Corp., 755 F.2d 1162, 1173 averts [read adverts] to the delineation in Brown
(5th Cir. 1985). Shoe Co. v. U.S., in which the Supreme Court
stated that 'the outer boundaries o f a product
avails, n., ( = profits or proceeds esp. from a sale market are determined by the reasonable inter­
o f property) is correctly labeled “archaic” in W3 changeability o f use.’ ” For a correct use o f avert,
and in the SOED. Legal writers—fond as they see a d v ert.
are o f ARCHAISMS— still occasionally use it. E.g.,
“[N]o particular items are selected as represent­ a v e rtib le ; a v e rta b le . The -ible form is prefera­
ing the avails o f the trust fund.” George G. Bog- ble. See -ABLE (A).
ert & George T. Bogert, The Law o f Trusts and
Trustees § 923, at 390 (2d ed. 1982). a via te; a v ig a te. No distinction was originally
Avail, the singular form, is frequently used— intended with the introduction o f avigate, al­
e.g.: “The evidence in this regard, to have avail, though some d i f f e r e n t i a t i o n in emphasis has
should be o f the most satisfactory kind.”/ “We emerged. Aviate, a b a c k -f o r m a t i o n o f aviation
know that the admonition to the children would first used in the late 19th century, means “to
be wholly impotent and o f no avail.” Cf. operate an aircraft.”
a vailm en t. Avigate, a p o r t m a n t e a u w o r d formed from avi­
ate and navigate, means “to handle and guide
a v en g e; re v e n g e . To avenge is to visit fitting (i.e., navigate) an aircraft in the air”—e.g.: “An
retribution upon another, usu. on behalf o f a rela­ occasional statute has made it a misdemeanor to
tive, friend, or the like. To revenge is to inflict operate a train, navigate a vessel, or avigate an
suffering or harm upon another out o f personal airplane, while in an intoxicated condition.” Rollin
resentment. Avenge and vengeance have to do M. Perkins & Ronald N. Boyce, Criminal Law
with justice and the legal process, revenge with 999 (3d ed. 1982). W3 records avigation but not
getting even. Revenge is both intransitive and avigate; the OED neglects both words.
transitive; avenge is transitive only. Moreover, In the American law o f easements, the usual
revenge can act as a noun, whereas avenge cannot. phrase is avigational or avigation easement. E.g.,
“An avigational easem ent. . . permits free flights
a v er; assev era te. These terms are popular with over the land in question.” U.S. v. Brondum, 272
lawyers as substitutes for say or state. Aver has F. 2d 642, 645 (5th Cir. 1959)./ “We see no reason
its place in solemn contexts—it should not be why an avigation easement may not be acquired
lightly used. Asseverate, an even weightier word, by prescription in this state.” Drennen v. County
is seldom justified. Both refer to affirmations o f o f Ventura, 112 Cal. Rptr. 907, 909 n. 2 (Cal. Ct.
fact, usually with no implication that an oath has App. 1974)./ “[Overflights o f aircraft flying into
been taken. and out o f the airport had occurred with such
94 avocation

frequency and intensity as to have ripened into a v o id a n ce . See c o n fe s s io n a n d a v o id a n ce .


the taking o f an avigational easement.” Fields v.
Sarasota-Manatee Airport Auth., 512 So. 2d 961, a v ow a l; a v o w ry , a v o w try . The noun corres­
962 (Fla. Dist. Ct. App. 1987). See e a sem en t (a ). ponding to avow in its common meaning (“to de­
clare openly”) is avowal. Its sibling, avowry,
a v o ca tio n ; v o ca tio n . These words are almost serves as the noun form corresponding to the
opposites, although many writers misuse avoca­ specialized common-law meaning o f avow (“to ac­
tion for vocation. The former means “hobby,” knowledge, in an answer, that one has taken
whereas the latter means “a calling or profession.” something, and to justify the act”). Avowry is the
Here is the common mistake: “We defer to the equivalent in actions o f replevin to the general
opinions o f our legal advisers, physicians, trades­ common-law doctrine o f confession and avoidance.
men, and artisans in all matters relating to their E.g., “The reply o f a plaintiff to an avowry by a
respective avocations.” Did the writer o f that sen­ defendant in a replevin action might take one of
tence have in mind golf, gardening, and numis­ several forms.” F.A. Enever, History o f the Law
matics? o f Distress 199 (1931). Avowtry is an obsolete
synonym o f adultery.
a v oid , v o id , v.t.; a v o id a n ce , v o id a n c e . In legal
writing these verb and noun pairs are perfectly a v u lsio n . Lawyers may run across the medical
synonymous. Avoid, in law, often means “to make as well as the legal use o f this word; hence it may
void or to cancel,” although in the language of be useful to understand the common thread in
nonlawyers it invariably means “to refrain from” meaning. Generally, avulsion denotes the action
or “to escape or evade.” Here is an example of o f pulling off, plucking out, or tearing away; forc­
avoid in the old-fashioned legal sense: “We are ible separation ( OED).
next to consider, how a deed may be avoided, or In land law, avulsion refers to the sudden re­
rendered o f no effect.” (Blackstone)/ “Strictly, the moval o f land, by change in a river’s course or by
word Voidable’ means valid until avoided.” Void the action o f flood, to another person’s estate; in
can act as noun, verb, or adjective. The noun which event, contrary to the rule o f alluvion (q.v.)
voidance denotes “the act o f voiding.” or gradual accretion o f soil, it remains the prop­
The legal senses o f avoid and avoidance invari­ erty o f the original owner (OED). Medically, how­
ably confuse nonlawyers, who are accustomed to ever, the term has come to denote “a tearing away
the ordinary meanings o f these words. It might o f a structure or part accidentally or surgically”
therefore be advisable to prefer void and voidance. (W3) <avulsion o f the diseased limb>.
E.g., “If the wife has inchoate dower in land trans­
ferred in living trust and does not release her
aw a it; w ait. Await is always transitive (i.e., it
dower, her dower claim is not avoided [read
takes a direct object), and wait is always intransi­
voided].” / “The Wills Act o f 1837 added a provi­
tive. One awaits something, but one waits for or
sion avoiding [read voiding] the interest o f a party
on something. If no object is supplied, wait is the
whose spouse was a witness, but went on to de­
proper term: “Then she brought the dishes in to
clare that no will should fail because the wit­
where the family awaited [read waited], sitting at
nesses thereto were incompetent.” The archaic
the low table.”
sense o f avoid is ensconced in a number o f stat­
utes—e.g.: “[T]he trustee may avoid any transfer
a w a k e(n ). See w ak e.
o f an interest o f the debtor in property.” 11 U.S.C.
§ 547(b) (1988).
Here the popular meaning o f avoid appears in a w a rd o v e r is verbose for award. E.g., “What is
a legal context in such a way that a lawyer might at stake, as far as the charity is concerned, is the
at first wonder whether the legal meaning was cost o f reasonable protection and the amount o f
intended: “The affidavit contains nothing more the insurance premium, not the awarding over
than a recital o f unsupported allegations, conclu- [read awarding] o f its entire assets in damages.”
sory in nature; as such, it is insufficient to avoid See p a r t ic l e s , u n n e c e s s a r y & o v e r (A).
summary judgment.”
In its lay sense “to evade or escape,” avoid aw (e)Iess. The spelling with the -e- is standard.
is sometimes misused for prevent or circumvent:
“Wide public participation avoids [read prevents] a w fu l originally meant “inspiring or filled with
the problem o f unfairness.” awe.” E.g., “No tribunal can approach such a ques­
tion without a deep sense o f its importance, and of
a v o id a b le -co n se q u e n ce s d o ctrin e . See m iti- the awful responsibility involved in its decision.”
g ation -of-d am ag es d o ctrin e . McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
back of 95

400 (1819) (per Marshall, C.J.). Its meaning has a x io m = an established principle that is univer­
now degenerated to “horrible, terrible.” sally accepted within a given framework o f rea­
soning or thinking. The term should not be used
aw h ile; a w h ile. Generally, one should use this o f propositions argued for by advocates; if the
term adverbially, without the preposition, and issue is the subject o f controversy, it is not an
spell it as one word <he rested awhile>. Whenever axiom, unless the question is the applicability o f
the term is introduced by a preposition, however, an axiom to a given situation.
it should be spelled as two words <he rested for
a while>.

b a b y -sn a tch in g . See k id n a p p in g (b ). remediate remedy


solicitate solicit
b a b y , s p littin g th e. See s p littin g th e b a b y . subornate suborn

Sculpt, arguably a n e e d l e s s v a r i a n t o f sculp­


b a ck a d a tio n . See b a ck w a rd a tio n .
ture, v.t., is now actually the more common verb.
Many back-formations never gain real legiti­
b a ck b e re n d ; b a ck b e r a n d ; b a c k v e r in d e ;
macy (e.g., enthuse), some are aborted early in
b a ck b e a rin g . This Anglo-Saxon term means
their existence (e.g., ebullit, frivol), and still oth­
“having stolen goods in one’s possession when
ers are o f questionable vigor (e.g., aggress, attrit,
apprehended” and refers to a person carrying off
effulge, elocute, evanesce). Burgle, q.v., (back-
stolen property (lit., “bearing it on one’s back”).
formed from burglar) continues to have a jocular
Now confined to historical contexts, the word is
effect (in AmE), as do effuse, emote, and laze.
most often spelled backberend. The other forms
Three 20th-century back-formed words, choate,
are variants.
liaise, and surveil, have come to be used with
Some writers prefer backbearing (often hyphen­
some frequency in legal contexts.
ated in BrE) because it is the most modem form—
Many examples have survived respectably,
e.g.: “The first dealt with the criminal taken in
among them diagnose, donate, orate, resurrect,
the act, and for him there was short shrift. Many
and spectate. Enthuse may one day be among
local custumals relate the various deaths assigned
these respectable words, although it has not
to the hand-having and back-bearing thief.” Theo­
gained approval since it first appeared in the
dore F.T. Plucknett, A Concise History o f the Com­
early 19th century. But many have become ac­
mon Law 427 (5th ed. 1956). cepted as legitimate because they have filled gaps
in the language and won acceptance through their
B a c k -F o r m a t i o n s , or clippings, are words usefulness. The best rule o f thumb is to avoid
formed by removing an affix from longer words newborn back-formations that appear newfan­
that are mistakenly assumed to be derivatives. gled, but not, like a prig, to eschew common back-
This process occurs most coiiimonly when a -tion formations that are useful. Only philologists to­
noun is erroneously shortened to make a verb day recognize as back-formations beg (from beg­
ending in -te— e.g., from emotion comes emote. gar), jell (from jelly), peddle (from peddler), rove
Such back-formations are objectionable when (from rover), and type (from typewriter).
they stand merely as n e e d l e s s v a r i a n t s o f al­ For specific discussions o f legal examples, see
ready extant verbs: a sp o rt(a te ), n o v a te , re g istra te , rem ed ia te,
s o licita te , su b in fe u d a te & su b orn a te.
Back-Formation Usual Word
accreditate accreditation
administrate administer b a c k o f; in b a c k o f. These Americanisms strike
asportate asport a more casual tone than their equivalent behind,
cohabitate cohabit the word that good editors tend to substitute.
delimitate delimit E.g., “An original writ was an order issuing from
evolute evolve the Chancery, ‘as a matter o f course.’ . . . Back
indemnificate indemnify o f [read Behind] the writ lay the authority o f the
interpretate interpret king.” C. Gordon Post, An Introduction to the Law
orientate orient 30 (1963)./ “The notion back o f [read behind] these
registrate register quotations is essentially the same as that o f the
96 backpay

familiar saying, T h e king can do no w rong/ ” Lon customarily call the bad-man theory o f law. Karl
L. Fuller, Anatomy o f the Law 24 (1968). Llewellyn took the idea a step beyond Holmes’s
formulation: “[T]he people who have the doing in
backpay is commonly spelled as one word in charge, whether they be judges or sheriffs or
AmE. The British tend to spell it as two words. clerks or jailers or lawyers, are officials o f the
law. What these officials do about disputes is, to
b a c k v e r in d e . See b a c k b e r e n d . my mind, the law itself.” Karl N. Llewellyn, The
Bramble Bush 3 (1930; repr. 1981) (emphasis in
L eif defines this
b a c k w a r d a tio n ; b a c k a d a tio n . orig.).
term (having two forms) as, “in stock market Later writers repeated the name often enough
parlance, a fee paid by a seller for the privilege that it has become a basic idea in m odem law,
o f delaying the delivery o f securities past their especially as framed originally by Holmes—e.g.:
normal delivery date,” and puts his main entry “Holmes returned to this idea (which he some­
under backadation. See Arthur A. Leff, The Leff times referred to as his 'bad man’ theory o f law)
Dictionary of Law, 94 Yale L.J. 1855, 2113 (1985). over and over throughout his career.” Grant Gil­
Most dictionaries, however, spell the term back­ more, The Death o f Contract 126-27 n.124 (1974).
wardation. Fowler included the term in his “ill-
favored list” o f HYBRID derivatives ( MEU2 at 253), b a ilis a CHAMELEON-HUED legal term. As a noun,
but it has become standard. it means (1) “the person-who acts as a surety for
a debt”; (2) “the security or guaranty agreed
bad, in law, may mean “not valid”— e.g.: “As upon”; or (3) “release on surety o f a person in
though thumbing their noses at a starving woman custody.” In sense (3), modem idiom requires re­
while self-righteously wrapping themselves in the lease on bail, although formerly in bail was not
flag, the Four Horsemen [q.v.] and Roberts held uncommon— e.g.: “Mr. Bartletta was then taken
the law bad.” Fred Rodell, Nine Men 241 (1955). before the recorder and released in bail to await
The OED attests this legal usage from the late the act o f the grand jury.”
19th century. As a verb, bail means (1) “to set (a person) free
for security on the person’s own recognizance for
b a d ; b a d ly . See adverbs (C). appearance on another day” <the prisoner was
not bailed but committed>; (2) “to become a surety
bade. See b i d . for”; (3) “to guarantee”; or (4) to place (personal
property) in someone else’s charge.
Bad faith is the noun phrase <in bad
b a d ( -) f a i t h .
faith>, bad-faith the adjectival phrase <bad-faith (= admitting o f or entitled to bail) may
b a ila b le
promises>. See mala fide(s). refer either to persons or to offenses. E.g., “Fur­
thermore, the record shows that Dovalina’s at­
b a d la w . See b a d . tempted murder charge was not bailable.” (One
might as naturally have written that Dovalina
“But if we take the view o f our
b a d -m a n th e o r y . himself was not bailable, because he had been
friend, the bad man, we shall find that he does charged with attempted murder.)/ “Even if Con­
not care two straws for the axioms or deductions, gress is free to define nonbailable offenses, cer­
but that he does want to know what the Massa­ tainly the allowable justifications are limited and
chusetts or English courts are likely to do in fact. cannot include punishing a defendant before the
I am much o f his mind. The prophecies o f what final determination o f his guilt.” See - a b l e .
the courts will do in fact, and nothing more pre­
tentious, are what I mean by the law.” Oliver b a il b o n d s m a n . See b a i l o r .
Wendell Holmes, “The Path o f the Law,” in Col­
lected Legal Papers 172-73 (1920; repr. 1952). Bailee = one to whom personal
b a ile e ; b a ilie .
This famous passage gave a substantial impetus property is delivered (or bailed) without any
to the realist movement among legal theorists— change in ownership. E.g., “At common law a
that one must study the actual behavior o f courts bailee (i.e., a person to whom the possession o f
and lawyers as well as, or even instead of, theoriz­ goods is entrusted by the owner) who acted dis­
ing about ultimate sources of law and deductions honestly had some immunity, since he was consid­
from those sources. In fact, Holmes did not hold ered to be in lawful possession o f the goods.” L.B.
this iconoclastic view but wished to point to the Curzon, English Legal History 244 (2d ed. 1979).
fact that, for the parties, what matters about law Bailie is a term for a Scottish magistrate; it is
is what happens, what the court decides or orders. also a dialectal variant o f bailiff, q.v. See also
The passage gave rise to what theorists now b a ilm e n t.
balance of probability 97

b a iler. See b a ilo r, it did not specifically allege that Chagra’s bail
jump, to which McLennan was allegedly an acces­
b a ilie. See b a ilee. sory, was willful.” U.S. v. McLennan, 672 F.2d
239, 242 (1st Cir. 1982).
b a ilie ry ; b a ilia ry . The former is the preferred Whereas a specific instance is referred to as a
form o f this word, meaning “the jurisdiction o f a bail jump (or sometimes bail-jump), the crime
bailie.” itself is known as bail-jumping (an older
phrase)— e.g.: “On February 10, 1938, a short
b a iliff, n., = (1) in England, a sheriff’s officer affidavit was filed in the Magistrates’ Court
employed to serve writs, make arrests, and exe­ charging the defendant with the crime o f bail
cute process (see b u m b a iliff); (2) in the U.S., a jumping.” People v. Davis, 5 N.Y.S.2d 411, 412
court officer who keeps order with the parties, (N.Y. Gen. Sess. 1938). Often the expression
attorneys, and jurors during court proceedings. serves as a p h r a s a l a d j e c t iv e — e.g.: “It appears
that he was not convicted on the bail-jumping
b a iliff, v.i. Primarily in law-school mock trials charge but did plead guilty to a different misde­
and moot court, the age-old noun bailiff has come meanor charge . . . .” People ex rel. Lobell v.
to be used as a verb meaning “to act as bailiff.” McDonnell, 71 N.E.2d 423, 425 (N.Y. App. Div.
That being so, the newfangled verb will perforce 1947). See j u m p b a i l .
soon infiltrate the speech o f the profession. It is
an American casualism that should not appear in b a ilm e n t= (1) a delivery o f personal property
serious contexts. See n o u n s a s v e r b s . by a person (a bailor) to another (a bailee) who
holds it under an express or implied-in-fact con­
b a iliw ick ; sh e riffw ick ; s h e riffd o m . Bailiwick tract; (2) the personal property delivered to a
= the office, jurisdiction, or district o f a bailiff. bailee; (3) the action o f posting bail for a criminal
Figuratively, it has become synonymous with do­ defendant; or (4) the record o f one’s posting bail
main. Sheriffwick = the office, jurisdiction, or for a criminal defendant. The definitions appear
district o f a sheriff. in order o f decreasing frequency. Sense (1) is
Because in one sense bailiff and sheriff are by far the most common— e.g.: “Another kind of
synonymous, the derivatives in -wick (lit. “vil­ situation [that] has traditionally been treated as
lage”) have become synonyms. Bailiwick is the contractual . . . is the relationship created by
more common o f the two: “A bailiff was popularly what is known as a gratuitous bailment, i.e., a
referred to as a ‘bailie,’ and before long a bailie’s transaction in which goods are loaned to, or depos­
wick [i.e., village] was expressed as his ‘bailiwick.’ ited with, another party without payment.” P.S.
And in time this word came to be used to indicate Atiyah, An Introduction to the Law o f Contract
the special territory over which a peace officer 120-21 (3d ed. 1981).
exercises his authority as such.” Rollin M. Per­
kins & Ronald N. Boyce, Criminal Law 1096 (3d b a ilo r ; b a ile r ; b a ile e ; b a il b o n d s m a n . Bailor
ed. 1982). Bailiffry is a n e e d l e s s v a r i a n t , and and -er are not at all clearly distinguished in
bailivia is an obsolete variant, o f bailiwick. actual legal usage, although they might easily
In the sense “the office o f the sheriff,” sheriff­ and usefully be given clear d if f e r e n t i a t i o n .
wick is less common than sheriffdom, which was Bailor and bailee (i.e., the persons on the giving
originally a Scotticism. E.g., “The history o f the and receiving ends o f a bailment [sense (1)]) are
sheriffdom is one o f the most important depart­ correlative personal nouns. E.g., “No bailee is per­
ments o f the constitutional history o f England.” mitted to deny that the bailor by whom any goods
Grifenhagen v. Ordway, 113 N.E. 516, 517 (N.Y. were entrusted to him was entitled to those goods
1916). See sh eriffa lty . at the time when they were so entrusted.” (Eng.)
See b a i l e e & -e r (A).
b a il ju m p , n., = the act o f defaulting on [i.e., Bailer (or bail bondsman) should be reserved
“jumping”] one’s bail. Though seemingly slang, for the sense “one who attaches bail (the surety in
state and federal courts in the U.S. regularly use criminal law).” Nevertheless, the spelling bailor
the term— e.g.: “ [T]he presiding judge made the is often used in that sense, and bailer appears
following statement: . . . T intend to hold Mr. occasionally in civil contexts. Given the inevitable
Lupo for the Grand Jury on the felony bail jump objections to bail bondsman on grounds o f s e x i s m ,
in that the warrant has been outstanding since we ought to encourage wider use o f bailer in this
1970 . . . . ’ ” People v. Lupo, 345 N.Y.S.2d 348, sense.
350 (N.Y. City Crim. Ct. 1973)7 “McLennan
timely moved to dismiss the indictment prior to b a la n c e o f p r o b a b ilit y ; b e y o n d a r e a s o n a b le
trial arguing that it was fatally defective because d o u b t. These phrases express two different bur­
98 ballot

dens o f proof. In a civil trial, once both sides have cases filed before 1 October 1979. The phrase
presented evidence, the jury is instructed to find Bankruptcy Code refers to the Bankruptcy Reform
for the party that, on the whole, has the stronger Act o f 1978 (frequently amended since then),
case, i.e., the party whose evidence tips the bal­ which governs all cases filed since 1 October 1979.
ance o f probability—however slight the edge may
be. But in a criminal trial, the proof necessary for b a n k r u p t(c y ) la w . The normal idiom today is
a conviction must be beyond a reasonable doubt, bankruptcy law(s), although bankrupt law was
because o f the presumption o f innocence. See b u r ­ once fairly common— e.g.: “Under the bankrupt
d e n o f p r o o f & p r e p o n d e r a n c e o f th e e v i­ law [read, in more modern terms, bankruptcy
dence. law] the defendant had the same right to prove
up the note for payment in the bankruptcy pro­
b a llo t. See v o t e , ceedings that the plaintiffs had, and . . . they
were under no obligation to go into the bankrupt
banc. See e n b a n c ( a ). court [read, in more m odem terms, bankruptcy
court] and prove the claim for the benefit o f the
b a n d it has two plural forms, bandits and ban­ surety.” Levy v. Wagner, 69 S.W. 112, 114 (Tex.
ditti. The native English form (bandits) is pre­ Civ. App. 1902).
ferred. See PLURALS (A).
n., is an 'unnecessary NEOLOGISM
b a n k ru p te e ,
ban ish , v.t., generally takes the preposition from equivalent to the well-established noun bankrupt
<he was banished from the country>. Krapp cites (= one that has declared bankruptcy). E.g., “[A]
the use “The king banishes you his presence,” judge sets a payback plan on the unsecured debt
with two objects, but this use is archaic. George [that] he thinks the bankruptee [read bankrupt]
Philip Krapp, A Comprehensive Guide to Good can meet in good faith.” Lisa J. McCue, Bank­
English 68 (1927). ruptcy Changes Called Possible, Am. Banker, 29
Jan. 1981, at 3./ “The second method allows bank-
b a n k n o te is one word in both AmE and BrE. ruptees [read bankrupts] to propose to the court a
'good faith’ repayment program . . . .” Phil Bat-
adj.; b a n k r o u t . The latter is an obso­
b a n k ru p t, tey, Bankruptcy Reform Drive Hits Lawmakers at
lete form o f the word. In the English Renaissance, Home, Am. Banker, 31 Aug. 1981, at 1J “For legal
scholars respelled French borrowings such as purposes, the family homestead can include up to
bankrout on the Latin model, hence bankrupt. 200 acres (100 for a single adult) o f real property
Many o f these respellings did not survive (e.g., that aren’t located within city, town, or village
accompt for account); bankrupt is one o f the few limits, and/or one acre o f land, plus any temporary
that did. See c o m p t r o l le r . residence if the bankruptee [read bankrupt] has
not acquired another home.” Shropshire, The
n. Although in popular speech and
b a n k ru p t, Nouveau Broke, D Magazine, Nov. 1986, at 89
writing it is common to refer to a bankrupt— a (inset). See b a n k r u p t , n.
usage dating from at least the early 16th cen­
tury—most modem bankruptcy statutes use the b a n k ru p tsy . See b a n k r u p t c y .
term debtor instead. Thus, one treatise states:
“Nobody is a bankrupt. There is no such person bar, n. In the U.S., all lawyers are members o f a
under the Bankruptcy Code.” David G. Epstein et bar, whether they are litigators or office prac­
al., Bankruptcy 6 (1993). titioners. In G.B., only barristers (in Eng.) and
advocates (in Scot.), as opposed to solicitors, make
b a n k ru p tcy [fr. L. bancus “table” + ruptus “bro­ up the Bar (the word is customarily capitalized
ken”] = (1) the fact o f being financially unable to in BrE). See c a l l e d t o t h e b a r & a t t o r n e y (a ).
pursue one’s business and meet one’s engage­ Unified bar and integrated bar are interchange­
ments, esp. o f being unable to pay one’s debts; (2) able terms referring to bar associations in which
the fact o f having declared bankruptcy under a membership is a statutory requisite for the prac­
bankruptcy statute; or (3) the field of law dealing tice o f law in a given geographic area.
with those who are unable or unwilling to pay For the sense o f relating to a defendant’s judg­
their debts. See in solv e n cy . ment on the merits, see m e r g e r ( b ).
Bankruptcy is often misspelled bankruptsy.
The first two have closely
b a r ; d e b a r ; d is b a r .
B a n k ru p tcy A ct; B a n k ru p tcy C ode. In the related meanings. Bar means “to prevent (often
U.S., the phrase Bankruptcy Act refers to the by legal obstacle).” E.g., “The English Statute o f
Bankruptcy Act of 1898; it governed bankruptcy Westminster II barred dower o f a wife who de­
barrister 99

serted her husband and committed adultery; and nelius J. Moynihan, Introduction to the Law o f
some states have statutes barring an elective Real Property 183 (2d ed. 1988). See -EE & b a r ­
share on a similar principle.”/ “The court con­ g a in er.
cluded that these warranty disclaimers did not
necessarily bar a breach o f contract claim.”/ “Leg­ b a rg a in e r; b a rg a in o r . Though one might sus­
islative immunity does not, o f course, bar all judi­ pect that the two forms are synonymous, they
cial review o f legislative acts.” Bar serves also as are not. Bargainer means “one who bargains.”
a noun <a bar to all claims>. Bargainor has a more specific legal meaning: “the
Debar, a somewhat archaic FORMAL WORD, seller in a bargained-for exchange.” See b a r ­
means “to preclude from having or doing.” E.g., g a in ee.
“It would require very persuasive circumstances
enveloping congressional silence to debar this b a rg e e . Though illogically formed with the -ee
Court from re-examining its own doctrines.”/ suffix, the established form bargee (17th c.) is a
“There is no reason why the plaintiff should be variant o f bargeman (14th c.), without the infelic­
confined to his action on the special agreement, ity o f s e x i s m . E.g., “The story o f the Elmhurst's
and be debarred his remedy on the assumpsit bargee was that off Bedloe's Island a third tug o f
implied by law.” (Eng.) Disbar means “to expel the railroad . . . came alongside, struck the barge
from the legal profession.” The corresponding a heavy blow on her port quarter, nearly capsizing
nouns are debarment and disbarment her, driving her forward against the barge ahead,
and breaking some planks forward.” Sinram v.
b a r en tails. See en tail. Pennsylvania R.R., 61 F.2d 767,768 (2d Cir. 1932)
(per L. Hand, J.). See -EE (A).
b a rg a in , n.; a g reem en t; c o n tr a c t. Williston
sorted these terms out with admirable clarity: “A b a rr a to r . See ch a m p e rto r.
bargain is an agreement o f two or more persons
to exchange promises, or to exchange a promise b a rra tro u s is the adjective corresponding to the
for a performance. Thus defined, bargain is at noun barratry (q.v.)— e.g.: “The statute is clear
once narrower than agreement in that it is not that barratrous conduct is to be treated as a
applicable to all agreements, and broader than criminal offense.” Galinski v. Kessler, 480 N.E.2d
contract, since it includes a promise given in ex­ 1176, 1179 (111. App. Ct. 1985)./ “They simply
change for an insufficient consideration. It also state that the Master sailed away with the cargo
covers transactions [that] the law refuses to recog­ and conclude that this conduct was barratrous.”
nize as contracts because o f illegality.” 1 Samuel Tradewinds Marketing, Inc. v. General Accident
Williston & W.H.E. Jaeger, A Treatise on the Law Ins. Co., 665 F. Supp. 104, 105 (D.P.R. 1987).
o f Contracts § 2A, at 7 (3d ed. 1957).
b a rra try ; sim on y . Why these terms are some­
b a rg a in , v.t. In law, an otherwise obsolete sense times confused is not at all apparent. Barratry =
persists: “to agree to buy and sell; to contract for.” (1) in criminal law, vexatious persistence in, or
See g ran t, b a rg a in , sell, a n d co n v e y . incitement to, litigation; (2) in admiralty, (of a
master or crew) fraudulent or grossly negligent
b a r g a in e d -fo r ex ch a n g e . This phrase is some­ conduct that is prejudicial to a shipowner; (3) in
times erroneously rendered bargain for exchange. older Eng. and Scots law, the act o f going abroad
Here variations o f it are correctly used: “The doing to purchase a benefice from Rome; or (4) in Scots
o f the act constitutes acceptance, the bargained- law, the accepting o f a bribe by a judge. The
for consideration, and the offeree's performance.”/ adjective is barratrous (q.v.) and the agent noun
“If the termination o f obligations were an immedi­ barrator.
ate bargained-for right o f consequence, he would Simony = the purchase or sale o f an ecclesiasti­
presumably have taken advantage o f his freedom cal promotion. The adjective is simoniac(al), the
from testamentary obligation to make a new will.” agent noun either simonist or simoniac.
The origin o f the phrase bargained-for exchange
may be seen from this sentence: “Consideration is b a r r is te r = a specialist consultant and pleader
something bargained for and given in exchange.” belonging to a class o f lawyers that is given pre­
dominant (formerly exclusive) rights o f audience
b a rg a in e e (= the purchaser in a bargained-for in superior courts. Ordinarily, the word applies to
exchange) is more obscure than purchaser, but an English or Northern Irish pleader (the Scottish
the word is perhaps a useful correlative o f bar­ counterpart being an advocate). When used in
gainor. E.g., “The Statute itself operated to vest reference to an American lawyer, the word
the seisin o f the bargainor in the bargainee.9*Cor­ smacks o f highfalutin journalese— e.g.: “The pres­
100 barristerial

tige and importance of the federal circuit bench a term o f abuse generally, is still used
b a sta rd ,
[in the U.S.] attracts high-caliber barristers [read neutrally in the law, in either o f two senses: (1)
lawyers]” Donald D. Jackson, Judges 312 (1974). “a child bom out o f wedlock”; or (2) “a child born
See a tto rn e y (A), co u n s e l (a ), Q u een ’s C o u n ­ to a married woman whose husband, for some
sel & s o licito r. provable reason, could not possibly be the father.”
Sense (1) has always been more common— e.g.:
b a rriste ria l = o f or pertaining to a barrister; “Although a bastard cannot inherit from his par­
lawyerly. The term is, naturally, more common in ents or other ancestors at common law, statutes
BrE than in AmE, but it appears in the latter as or judicial decisions permit a bastard to inherit
well— e.g.: “Since the 12(e) motion is prone for from his mother and the mother to inherit from
implementation of barristerial shadow boxing, its her bastard.”
exercise should be cast in the mold o f strictest Today, however, the law’s technical neutrality
necessity.” Lincoln Labs. v. Savage Labs., 26 is not without comic overtones. See a d u l t e r i n e
F.R.D. 141, 142 (D. Del. 1960)./ “Having taken b a s ta r d , ille g itim a te c h ild , n a tu r a l c h ild &
this position, plaintiffs, in the exercise o f com­ EUPHEMISMS.
mendable barristerial caution, have nevertheless
submitted documents indicating that . . . Dr. = (1) the condition of a bastard; illegiti­
b a sta rd y
Newman directed the formation o f a university- mate birth; or (2) the begetting o f bastards; forni­
wide Salary Review Committee . . . .” Chang v. cation ( OED). Today in sense (1), illegitimacy is
University o f Rhode Island, 554 F. Supp. 1203, the more usual term, and the preferable one for
1205 (D.R.I. 1983). avoiding unduly derogatory connotations. Sense
(2) is not common.
b a se fee. See fe e sim p le ( d ).
These two words sometimes
b a th o s; p a th o s.
basis. A. F or reason . Basis is sometimes used cause confusion. Bathos means “a sudden descent
unidiomatically for reason— e.g.: “The court, after from the exalted to the trite, or from the sublime
a full review of the authorities, concluded that to the ridiculous.” Pathos means “sympathetic
there was now no sound basis [read reason] why pity” and is useful, e.g., in reference to juries.
the value of life insurance coverage, as well as
the cash surrender value, might not be considered To nonlawyers, battery connotes physi­
b a tte ry .
in a property division between parties to a divorce cal violence. The legal meaning, however, is “the
action.” Basis is properly followed by for <the intentional or negligent application o f physical
basis for the decisions Reason, by contrast, fits force to, or the offensive contact with, someone
with either for <the reason for the decision> or without consent.” Thus, offensive contact is
why (as in the example quoted above). Writers enough— for example, an unwelcome kiss or ca­
who use basis why are probably driven to it by ress. E.g., “[T]he battery here was a technical one,
the s u p e r s t i t i o n that reason why is an error. See and was accompanied by neither physical injury
rea son w h y. nor violence. It was a mere touching o f the person
B. On a . . . basis. This long-winded phrase of the plaintiff, a mere incident o f the restraint,
often ousts a simpler, more legitimate adverb— the false imprisonment.” Fisher v. Rumler, 214
e.g.:• N.W. 310, 311 (Mich. 1927). As a tort, battery is
a civil wrong giving rise to a cause o f action for
• “The commission was set up on a provisional
damages; as a crime, it is a social harm punished
basis [read provisionally].”
by the state. See a s s a u l t .
• “Those issues must be determined on a case-by-
case basis [read determined case by case].”
b a w d y h o u s e ; h o u s e o f i ll f a m e ; d i s o r d e r l y
• ‘T he attorney represented his clients on a con­
h ou se. These phrases are three o f the e u p h e ­
tingent-fee basis [read for a contingent fee].”
m is m sby which lawyers have traditionally re­
• “In Usery v. Brandel, nine migrant farm labor­
ferred to a brothel or house o f prostitution. The
ers working on a sharecropper basis [read as
quaint phrase disorderly house is the broadest of
sharecroppers] sought to intervene in a suit
the three, denoting a house where people carry
brought by the Secretary o f Labor to enforce
on activities that constitute a nuisance to the
the . . . Fair Labor Standards Act.”
neighborhood; these activities might include gam­
See FLOTSAM PHRASES. bling and drug-dealing as well as prostitution.
C. Plural Form. The plural o f basis, as well as
base, is bases; the pronunciations differ, however: b e a k is a BrE slang term for a magistrate or
for basis, the plural is pronounced Ibay-seezl, for justice o f the peace. E.g., “In the cities a lone
base Ibays-ezl. example was set by Henry Fielding (1707-54),
begging the question 101

the novelist, sitting at Bow Street as the self- b e fo r e for by. Cases come before courts and are
styled ‘principal Westminster magistrate/ and his then reviewed by those courts. But some writers
brother and successor, Sir John Fielding, ‘the mar these idioms— e.g.: “We note that such a
Blink Beak.’ Unpaid, like other magistrates, they determination is a matter placed within the sound
spumed the b rib es. . . .” Alan Harding, A Social discretion o f the district judge, and review before
History o f English Law 270-71 (1966). The OED [read by] us is very limited.” Cf. a n te r io r to. See
quotes many examples from the 16th to the 19th p re v io u sly .
century, including one from Dickens’s Oliver
Twist (1837-1838), and notes that the precise b e fo r e -m e n tio n e d . See a b o v e -m e n tio n e d &
etymology is unknown. a fo re sa id .

b e a r th e rela tion . See r e la tio n (b ). b e g is occasionally used in dissenting opinions in


the phrases beg to differ and beg to advise. These
b e ca u se . A. Punctuation with. Generally, the are a r c h a i s m s to be eschewed.
word because should not follow a comma. E.g., For the phrase beg the question, see b e g g in g
“This court should remand the case, because the th e q u e stio n .
defendants have created federal jurisdiction pre-
textually.” (Delete the comma after case.) b e g a t; b e g o t. See b ib l ic a l a f f e c t a t i o n .

B. Causing Am biguity A fter a Negative. When


a causal phrase follows a negative, the resulting b e g e t is today used only figuratively. E.g., “The
expression is usually ambiguous—though some­ services and gifts must have been rendered with
times only technically so. E.g., “A proposition is a frequency that begets an anticipation o f their
not false because it is a truism darkly expressed.” continuance.” In its literal sense, beget is an a r ­
W.W. Buckland, Some Reflections on Jurispru­ c h a i s m . E.g., “When proof has been given o f the

dence 109 (1945). non-access o f the husband at any time when his
In fact, putting a purpose clause or phrase after wife’s child could have been begotten, the wife
a negative often causes ambiguities, attested by may give evidence as to the person by whom it
a priest’s unintentionally humorous statement: “I was begotten.” (Eng.) The more usual term today
wear no clothes to distinguish myself from the is to conceive or to father.
congregation.”
C. C oupled w ith reason . Because creates a r e ­ b e g g in g th e q u e stio n does not mean “evading
d u n d a n c y when used as a conjunction after rea­ the issue” or “inviting the obvious questions,” as
son. E.g., “Clearly, one reason why this argument some mistakenly believe. The proper meaning of
no longer appeals is because [read that] it rests begging the question is “basing a conclusion on an
upon an élitist assumption . . . .” P.S. Atiyah, assumption that is as much in need o f proof or
Law and Modern Society 93 (1983). (On still an­ demonstration as the conclusion itself.” The for­
other question raised by that sentence, see re a ­ mal name for this logical fallacy is petitio princi-
son w h y.) pii. Following are two classic examples: “Reason­
In the following sentence, the construction is able men are those who think and reason
inverted: “Because [read That] the lessor accepted intelligently.” Patterson v. Nutter, 7 A. 273, 275
the first payment is no reason to conclude that (Me. 1886). (This statement begs the question,
the corporation existed by estoppel.” See r e a so n “What does it mean to think and reason
. . . is b eca u se . intelligently?”)/ “Life begins at conception! [Fn.:
D. B eginning Sentences with. An odd supersti­ ‘Conception is defined as the beginning of life.’]”
tion holds that beginning a sentence with because Davis v. Davis, unreported opinion (Cir. Tenn.
is a mistake. There is nothing to it. See s u p e r s t i ­ Eq. 1989). (The “proof’— or the definition—is cir­
t io n s (F). cular.)
E. W ordy Substitutes for. Because is often In the following sentence, the writer mangled
needlessly replaced by verbose phrases such as the SET PHRASE to beg the question and misappre­
for the reason that, due to the fact that, on the hended its meaning (by using begs for ignores):
ground that, and the like. E.g., “It is still thought “Blaming Congress and the Democrats for ‘crimi­
that many magistrates are too disinclined to re­ nalizing o f policy differences with the executive
ject police evidence, however implausible, perhaps branch’ begs a much larger issue here: Should
for the reason that [read because] they feel the members o f the executive branch be allowed to
police should always be supported as a matter of withhold vital information from those members
principle.” P.S. Atiyah, Law and Modern Society of Congress charged by law to monitor specific
26 (1983). actions o f the president?” Letter o f John M.
F. As a Causal W ord Generally. See as (a ). Bums, Wall St. J., 16 May 1990, at A17.
102 begin

b eg in . A. To begin . As an introductory phrase move and prove. In BrE today “it is generally
used to enumerate reasons, the idiomatic phrase made to rime with rove, grove, by those who know
is to begin with, not to begin. In the following it only in books” (OED).
sentence, the lack o f the preposition with makes
to begin sound narrowly chronological, as if A b e la b o r ; la b o r, v.t., (= to beat severely). Modern
actually began something and then, at some inde­ dictionaries suggest that in practice the words
terminate point, stopped: “To begin [add with], are interchangeable. Historically, however, in the
A played a substantial role in negotiating both best usage belabor is not to be used figuratively
agreements.7 “To begin [add with], it was clear in phrases such as to belabor an argument; the
that Dixon suffered a permanent injury and that preferred expression is to labor an argument—
he died of an unrelated disease.” e.g.: “I need not labor the point that the four
B. A nd commence & start. Begin is the usual elements of the positivist creed just outlined are
word, to be preferred nine times out o f ten. Com­ interdependent. . . .” Lon L. Fuller, The Moral­
mence is a FORMAL w o r d ; ceremonies and exer­ ity o f Law 193 (rev. ed. 1969).
cises are likely to commence, as are legal proceed­ The popular grammarian Edwin Newman has
ings. Start is usually used o f physical movement chided a justice o f the U.S. Supreme Court for
<to start running>. Both begin and start—but not writing “to say more would belabor the obvious,”
commence— may be followed by an infinitive. See stating: “To belabor the obvious is to hit it, which
co m m e n ce . hardly seems judicial conduct.” Edwin Newman,
Foreword to Morton S. Freeman, A Treasury for
b eh a lf. A distinction exists between the phrases Word Lovers viii (1983). Examples o f this usage
in behalf o f and on behalf o f The former means are legion— e.g.: “Without belaboring [read la­
“in the interest or in defense o f” <he fought in boring] the point, we observe that the separation
behalf of a just man’s reputation:»; the latter, on agreement in this case will be at least partly
behalf of \ means “as the agent of, as representa­ performed in Texas because the payor resides in
tive o f” <on behalf o f the corporation, I would like that state.”/ “Brawner conceded his right against
to thank . . . > <she appeared on behalf o f her Pendarvis without undue belaboring [read la­
client>. boring].”
Upon behalf of is now considered much inferior
to on behalf o f “We conclude that the public b e la te d has made its way into legal language as
interest involved in this dispute compels us to a synonym o f untimely. E.g., “We must decline to
look beyond the immediate interests o f the named entertain appellant’s belated cross-points.” Its use
litigants and to consider the situation o f the natu­ in this context is perfectly acceptable.
ral gas consumers upon [read on] whose behalf
the Mississippi Power Service Commission has b e lie = (1) to disguise, give a false idea of; (2) to
intervened.” See u p on . leave unfulfilled; or (3) to contradict or prove the
falsity of. Sense (3) is by far the most common in
b e h a v io r. See c o u n t n o u n s a n d m a s s n o u n s legal contexts. E.g., “The Court suggests that the
(B) & PLURALS (B). search for valuables in the closed glove compart­
ment might be justified as a measure to protect
b e h a v ior(a l)ism . The correct name for the doc­ the police against lost property claims; again,
trine that human behavior provides the only sig­ this suggestion is belied [i.e., contradicted] by the
nificant psychological data is behaviorism. record.”/ “Appellant contends that his lawyer’s
failure to put on evidence at the penalty stage
b eh est is a stronger word than request; it means prejudiced his ability to avoid the death sentence;
(1) “a command,” or (2) “a strong urging.” Bequest but the nature o f the evidence appellant asserts
is sometimes misused for behest, as here: “It is his attorney should have presented belies [i.e.,
enough that a writing defamatory in content has proves the falsity of] the argument.” See vitiate.
been read and understood at the bequest [read
behest] o f the defamer.”/ “At his bequest [read b e lie f. Lawyers frequently speak o f a genuine
behest], I undertook this onerous task, but have belief, a bona fide belief, or an honest belief\ In
been thankful to him for so urging me.” See m a l a - fact, all such phrases are r e d u n d a n c i e s , since it
p r o p is m s . is quite impossible to believe something ungenu-
inely, in bad faith, or dishonestly.
b e h o o f is the noun, behoove (AmE) or behove
(BrE) the verb. Both noun and verb have an b e llig e r e n c e ; b e llig e re n cy . Belligerence refers
archaic flavor. Historically, the verb in BrE was to a person’s truculent attitude. Belligerency has
pronounced, as it now is in AmE, to rhyme with traditionally, in international law, been the pre­
benefic(ent) 103

ferred term in referring to the status* o f a state a member o f the governing body o f one o f the
that is at war— e.g.: “[0]ther states are within Inns o f Court. E.g., “In Pennsylvania, Andrew
their rights in declaring themselves neutral in Hamilton, a barrister and bencher o f Gray's Inn,
the struggle, and since there can be no neutrals came to Philadelphia in 1682.” Roscoe Pound,
unless there are two belligerents, such a declara­ The Development o f Constitutional Guaranties o f
tion is equivalent to a recognition o f the belliger­ Liberty 59 (1957)./ “There was thus little occasion
ency of both parties.” J.L. Brierly, The Law o f for controversies as to discipline to be brought
Nations 134 (5th ed. 1955). before the judges, unless the benchers failed in
the performance o f their duties.” People ex rel.
b e llw e th e r ( = one who takes the lead or initia­ Karlin v. Culkin, 162 N.E. 487, 490 (N.Y. 1928)
tive; a trendsetter) is sometimes mistakenly writ­ (per Cardozo, C.J.). Benchers are known formally
ten bellweather— e.g.: “The sheriff conducted me as Masters o f the Bench.
to one o f the two vacant jury rooms, then the jury, Archaically, the term was used more generally
bell-weathered [read bellwethered] by Callahan, in reference to magistrates, judges, assessors, and
the court officer, filed out and retired into the senators.
other directly opposite.” Ephraim Tutt, Yankee
Lawyer 226 (1943). (The verbal use illustrated in b e n ch m a rk ( = a point o f reference from which
the quoted sentence is unusual— see n o u n s a s to make measurements) is best spelled as one
v e r b s .) word.

b e lo w is often used by appellate courts to mean b e n c h m em o (AmE) = (1) a short brief submit­
“at the trial-court stage.” E.g., “As the district ted by a lawyer to a trial judge, often at the judge's
court noted below, this litigation involves only request; or (2) a legal memorandum prepared by
that portion o f the contract relating to the actual an appellate judge's law clerk to help the judge
construction o f the platform.” Some appellate prepare for and participate in oral argument.
courts— especially American ones— avoid this
term because it may seem to slight trial judges. b e n c h tria l has become— mostly in southern
See in fe r io r (b ). parts o f the U.S.— a common equivalent o f trial
to the bench ( = a nonjury trial). See n o n ju ry .
b e lo w -m e n tio n e d ; u n d e r-m e n tio n e d . The for­
mer is AmE or BrE; the latter is BrE only. Below,
b e n c h w a rra n t, n., = process that a court issues
like above, q.v., is frequently used as an ellipsis
for the attachment or arrest o f a person who has
for below-mentioned.
been held in contempt, has been indicted, or has
disobeyed a subpoena.
b em ea n . See d em ean .
Some legal writers, esp. in Texas, have trans­
b em u se; am u se. The former is frequently taken formed this noun phrase into a p h r a s a l v e r b —
to be a fancy variant o f the latter; the meanings e.g.: “Having been bench warranted from the
differ significantly, however. Bemuse = (1) to Texas Department o f Corrections where he is
plunge into thought, preoccupy; or (2) to muddle serving time for two prior convictions, appellant
(one's mind); bewilder. Here sense (2) o f bemuse is hardly a fit candidate for probation.” Roberts v.
applies: “It is easy to see why an equity court, State, 587 S.W.2d 724, 725 n .l (Tex. Crim. App.
bemused by the expression ‘Equity acts in perso­ 1979)./ “Appellant sought the continuance so that
nam and not in rem,' would be tempted to say Mr. Babineaux could either be bench warranted
that an equity court has no ‘power' to affect di­ back to testify or deposed.” Babineaux v. Babi­
rectly land titles in another state.” Amuse needs neaux, 761 S.W.2d 102, 103 (Tex. App.— Beau­
no definition here. mont 1988). If the phrase is to be used as a verb,
it should be hyphenated: hence bench-warranted
b e n c h = (1) the court considered in its official would have been the better form in both quota­
capacity <remarks from the bench>; (2) judges tions. See n o u n s a s v e r b s .
collectively <bench and bar>; or (3) the judges
o f a particular court <the Queen's Bench>. Cf. b e n e fic(e n t); b e n e ficia l; b e n e v o le n t. The ety­
co u rt. mological difference between beneficent and be­
Renaissance lawbooks, in referring to the nevolent is the difference between deeds and sen­
Bench, invariably meant the Court o f Common timents. Beneficent = doing good, charitable
Pleas, not the King's Bench. (benefic now being merely a n e e d l e s s v a r i a n t ).
Benevolent = well-wishing, supportive, (emotion­
b e n ch e r, in England, means generally “one who ally) charitable. The d if f e r e n t ia t io n should be
sits on a bench” ( OED), but particularly refers to cultivated; we should reserve beneficent for “doing
104 beneficiary

good,” and benevolent for “inclined or disposed to b e n e fit o f c le r g y = (1) at common law (12th c .-
do good.” In the following sentences, benevolence 19th c.), the right o f a clergyman not to be tried
is used for beneficence: “The beneficiary o f a char­ for a felony in the King’s Court; or (2) by SLIPSHOD
ity (e.g., one who uses a charitable hospital) has e x t e n s i o n , religious approval as solemnized in a
impliedly [q.v.] waived his right to sue in tort, by church ritual. By invoking the benefit o f clergy—
virtue of having accepted its benevolence [read usu. by reading the so-called neck verse (q.v.)—a
beneficence].”/ “The will and the entire record re­ defendant could have the case transferred from
veal that the decedent was a very benevolent man the King’s Court (which imposed the death pen­
[read beneficent man] who was in the habit o f alty for a felony) to the Ecclesiastical Court (which
making charitable gifts all over the world.” dispensed far milder punishments).
Beneficial has the general meaning “favorable, In sense (2), the phrase is not only a slipshod
producing benefits,” and the specialized legal extension but also a p o p u l a r iz e d l e g a l t e c h n i ­
meaning “consisting in a right that derives from c a l i t y , appearing most often in reference to chil­

something (as a contract or an expectancy) other dren out o f wedlock—e.g.: “With her, and without
than legal title” cbeneficial in terests That spe­ benefit o f clergy, he had five children, and it was
cialized sense comes from the older legal meaning his boast that, as each arrived, he dispatched it
“o f or pertaining to usufruct” ( OED). E.g., “It is promptly to a foundling home.” René A. Wormser,
well established that the settlor (creator) may The Story o f the Law 215 (1962)./ “Wakefield’s
revoke the trust with the consent o f all persons generation, twenty years on, didn’t just engage in
beneficially interested therein.” Cornelius J. Moy- sex without benefit o f clergy, they talked about it.”
nihan, Introduction to the Law of Real Property Rhoda Koenig, Talkin* Bout Their Generation,
157 (2d ed. 1988)./ “The supervised administra­ New York (Mag.), 1 June 1992, at 57.
tion embraces a determination o f the persons ben-
eficially entitled to the estate after debts, ex­ b e n e v o le n t. See b e n e fic(e n t).
penses, and taxes are paid.” See m a lev olen t.
b e n ig n ; b e n ig n a n t. The latter is a n e e d l e s s
v a r i a n t . The antonym o f benign, however, is ma­
b e n e ficia ry . See cestui que trust & d ev isee.
lignant.
ben efit. Invariably the passive form o f this verb
b e q u e a th . A. And devise; devolve. Bequeath =
can be advantageously made into an active con­
(1) to give (an estate or effect) to a person by will
struction: “Defendant has an adverse interest be­
<she bequeathed the diadem to her daughters, or
cause he would have been benefited by [read have
(2) to give (a person) an estate or effect by will
benefited from] a ruling in favor o f the insurance
<she bequeathed her daughter the diadem>. Law­
company.” See b e -v e r b s ( b ).
yers and nonlawyers alike use this term meta­
phorically: “While its origins are somewhat ob­
b en efit(t)ed ; b en efit(t)in g . These words should scure, we know that the marital privilege is
be spelled with one -t-, not two. See d o u b l i n g o f bequeathed to us by the long evolution o f the
FINAL CONSONANTS. common law, not by constitutional adjudication.”
See lega te.
b en efitee. Though it has not yet made its way Devise = to give property (usu. real property)
into most general English-language dictionaries, by will. As a noun, devise refers to the realty
this word has appeared frequently in American so given—the analogue for personal property is
legal prose since the 1950s. The earliest known bequest. The Uniform Probate Code uses only the
use is a 1958 case styled (in full) Liberty Mut. term devise to describe giving property by will
Ins. Co., a Corporation, Individually and as Use whether the property is real or personal; it would
Benefitee of The Howell Co., v. Hartford Acci­ be bootless to call this well-ensconced terminolog­
dent & Indem. Co., 251 F.2d 761 (1958). Soon it ical shift incorrect. See d e v ise & g iv e, d ev ise,
had spread—e.g.: “This provision, without un­ a n d b eq u ea th .
dermining the liberal scope o f interrogatory dis­ Devolve = to pass on (an estate, right, liability,
covery, places the burden o f discovery upon its or office) from one person to another. In the con­
potential benefitee.” David W. Louisell, Modern text o f estates, devolve usually takes the preposi­
California Discovery 124-25 (1963). tion upon, and sometimes to. See d e v o lv e .
The spelling benefittee is incorrect (cf. benefited) B. F or give . Using bequeath as a fancy equiva­
because the accent falls not on the penultimate lent o f give or present is an ignorant pretension—
syllable but on the last syllable. But the word e.g.: “Apparently Mayor Annette Strauss plans to
is almost certainly unnecessary for beneficiary. bequeath [read present] the gift personally to Her
See -EE. Majesty—something rarely done, according to
between 105

protocol experts. Usually, a gift is bequeathed besides] Trevino to win on the Senior Tour this
[read presented] to the queen’s secretary, who year . . . .” Jaime Diaz, At Tradition, Duel Falls
then bequeaths [read gives] it to the queen . . . Short o f Hope, N.Y. Times, 31 March 1990, at 30.
Helen Bryant, Names & Faces, Dallas Times Her­
ald, 5 April 1991, at A2. b e s to w a l; b e sto w m e n t. Bestowal is the usual
form, bestowment being a n e e d l e s s v a r i a n t .
b e q u e s t , n.; b e q u e a t h a l ; b e q u e a t h m e n t . Be­
quest = (1) the act o f bequeathing; or (2) personal b e t > b e t > b et. Bet is the preferred (and the far
property (usu. other than money) disposed o f in a more frequent form) o f the past tense and the
will. (Cf. l e g a c y .) Bequest is sometimes confused past participle. E.g., “Thus, if a person betted
with behest, q.v. See d e v i s e . [read bet] on Salisbury Plain there would be no
Bequeathal and bequeathment are NEEDLESS place within the Act.” Hugh P. Macmillan, Law
v a r ia n t s of sense (1) o f bequest— e.g.: “We agree and Other Things 158 (1938)7 “The defendant,
that [the statute] is not applicable, since the trust Portner, answered that the consideration for his
was demonstrative and not a bequeathal [read check to Caldwell was small pieces o f celluloid
bequest] o f specific property.” Estate o f Naulin v. called ‘checks’ representing money betted [read
Clancy, 201 N.W.2d 599, 603 (Wis. 1972)./ “The bet] and lost by him in a game o f chance.” Scolaro
testator’s preference for his relatives, it is v. Bellitto, 184 N.E.2d 604, 606 (Ohio Ct. App.
claimed, was evident from . . . the bequeathment 1962).
[read bequest] in Article V I . . . .” Estate o f Fleer
v. Elmhurst College, 315 N.E.2d 260, 261 (111. b e tro th a l; b e tro th m e n t. The latter is a NEED­
App. Ct. 1974). LESS VARIANT.

v.t., is a silly error that has appeared


b e q u e st, b e tt o r is the standard spelling for “one who bets
in a would-be Shakespearean scholar’s writing: or wagers.” Better has also been used in this
“And by so felicitously using the words newly sense, but is liable to confusion with the compara­
bequested [read bequeathed] to English, [Shake­ tive form o f good. Cf. a b ettor.
speare], more than any other writer o f the English
Renaissance, validated the efforts o f earlier and b e tw e e n . A . A n d among. Between is com­
contemporary neologists.” Bryan A. Garner, monly said to be better with two, and among with
Shakespeare’s Latinate Neologisms, 15 Shake­ more than two, things. Sir Ernest Gowers calls
speare Stud. 149, 151 (1982). this a “superstition” and quotes the OED: “In
all senses between has been, from its earliest
bereave, v.t., yields past-tense forms bereft or appearance, extended to more than two. . . . It
bereaved, and the same forms as past participles. is still the only word available to express the
Bereaved is used in reference to loss o f relatives relation o f a thing to many surrounding and indi­
by death. Bereft is used in reference to loss o f vidually; among expresses a relation to them col­
incorporeal possessions or qualities. lectively and vaguely: we should not say the space
To be bereft o f something is not just to lack it lying among the three points or a treaty among
but to have had it taken away. Hence the follow­ three Powers’* (MEU2 at 57).
ing uses are incorrect: “The Mann Act was not The rule as generally enunciated, then, is
designed to cover voluntary actions bereft o f[ read merely simplistic. Although it is an accurate guide
lacking] sexual commercialism.”/ “Because the for the verb divide {between with two objects,
certification was bereft o f [read without] any clue among with more than two), the only ironclad
as to the district judge’s reasoning, we could distinction is that stated by the OED. Between
merely vacate the order and remand for a fuller expresses one-to-one relations o f many things,
evaluation.” Spiegel v. Trustees o f Tufts College, and among expresses collective and undefined
843 F.2d 38, 44 (1st Cir. 1988). relations.
Thus, Article VII o f the U.S. Constitution uses
( = [1] alongside; or [2] in comparison
b e s id e between seemingly to express reciprocal relations:
with) is surprisingly often misused for besides (= “The Ratification o f the Conventions o f nine
[1] other than; except; or [2] in addition)— e.g.: States, shall be sufficient for the Establishment
“When we speak of a unilateral contract, we mean of this Constitution between the States so rati­
a promise in exchange for which an act or some­ fying the Same.”
thing beside [read besides] another promise has Yet even the more valid distinction is a rela­
been given as consideration.” Clarence D. Ashley, tively new one, not observed by the English courts
What Is a Promise in Law? 16 Harv. L. Rev. 319, in 1607: “All the Justices, viz., p o p h a m , Chief
319 (1903)./ “Hill is the only man beside [read Justice o f England, c o k e , Chief Justice o f the
106 betwixt

Common Pleas, FLEMING, Chief Baron, FENNER, B e -V erbs. A. Wrongly Omitted in Nonfinite
SEARL, YELVERTON, WILLIAMS, and TANFIELD, JJ., Uses. Be-verbs, usually in the infinitive or parti­
were assembled at Sergeants-Inn, to consult what cipial form, are often omitted from sentences in
prerogative the King had in digging and taking which they would add clarity. One explanation is
o f saltpetre to make gunpowder by the law o f the that they are intended to be “understood.” (See
realm; and upon conference between them, these u n d e r s t o o d w o r d s .) But this explanation does

points were resolved by them all, una voce.” The not excuse the ambiguities and awkwardnesses
Case o f the King's Prerogative in Saltpetre, 12 Co. often caused by such omissions. The bracketed
12 (1607). verbs in the sentences following were originally
In the same case in which Justice Marshall omitted:
several times writes, “among the defendant, the
• “These devices can be used to intercept a wire
forum, and the litigation,” Justice Brennan, in his
or oral communication; specifically designated
concurring and dissenting opinion, writes: “be­
as not [being] such devices are telephone or
tween the controversy, the parties, and the forum
telegraph equipment furnished to a user and
state.” See Shaffer v. Heitner, 433 U.S. 186, 225
used in the ordinary course o f business, and
(1977). The latter phrasing might be said to ex­
hearing aids.”
press a more specific individual relation between
• “The annotation necessarily starts with the as­
each o f the named things, the former phrasing
sumption that the process or information in­
(perhaps consciously) expressing a vaguer rela­
volved was regarded as [being] o f a secret or
tion.
confidential nature.”
B. Between and Numbers. The word between
• “I f the western film offer were found [to be]
may cause problems when used with numbers,
different Ifrom] or inferior to the musical film
particularly if the numbers at either end o f the
offer, it makes no difference whether Parker
spectrum are intended to be included. E.g., “If
reasonably or unreasonably refused the second
three petitioners and one respondent advance to
offer.”
Round Three from a bracket, then those four
• “Because this instruction was substantially
teams’ names will be placed in a hat, and between
similar to the willfulness instruction at the end
one and three [read from one to three] teams will
o f the trial, which we have previously held [to
be chosen to switch sides.” (Two is the only whole
be] proper, the instruction was not erroneous.”
number between one and three.)/ “Saleh met with
• “I f I thought those two cases [to be] in point, I
several other defendants in a Queens garage be­
should have to consider them very carefully,
tween June 23 and June 24 [read on June 23 and
but I do not.” (Eng.)
June 24] to discuss getting cars for the conspir­
acy.” Peg Tyre & Kevin McCoy, Busted at Beach, B. Circumlocutions. Verb phrases containing
Newsday, 24 July 1993, at 3. (There is no time òe-verbs are often merely roundabout ways of
“between” June 23 and June 24.) saying something better said with a simple verb.
C. Between you and I. One commentator has Thus be determinative o f for determine is verbose.
pointedly termed this locution “a grammatical But be determinative is all right where there is
error of unsurpassable grossness.” Little can be no object, as in Judge Learned Hand’s statement:
added to that judgment. See HYPERCORRECTION “All such attempts are illusory, and, i f serviceable
(B ). at all, are so only to center attention upon which
D. Between; as between. Sometimes as between one o f the factors may be determinative in a given
(= comparing; in comparison of) is misused for situation.”
the straightforward preposition. E.g., “The con­ The following circumlocutory uses o f òe-verbs
tractual provisions as between [read provisions are common in legal writing; the simple verb is
between] the parties are as follows.” Cf. as ordinarily to be preferred:
against.
be abusive of be derived from
E. Few er Than Tw o Objects. This construction
(abuse) (derive from)
is a peculiar brand o f ILLOGIC, as in between each be desirous of (desire
be amendatory of
house or between each speech (instead of, properly, (amend) or want)
between every two houses and between speeches). be applicable to (apply be determinative of
Another manifestation o f this error is between to) (determine)
. . . or, with two prepositional objects, rather be benefited by (benefit be dispositive of
than between . . . and: the misuse results from from) (dispose of)
confusion between either . . . or and between . . . be conducive to be in agreement
and. (conduce to) (agree)
be decisive of be in attendance
b e tw ix t is an a r c h a is m . (decide) (attend)
Biblical A ffectation 107

be indicative of be operative (operate) portant, for example, when employment contracts


(indicate) be persuasive of provide for “ biannual meetings o f the committee
be in dispute (dispute (persuade) to dispose o f accident and bonus questions, and
or disagree) be possessed of any other agreements.” It is imprudent, however,
be in error (err) (possess) to rely on a word like biannual for such a contrac­
be in exercise of due be productive of tual provision. See BI-.
care (exercise due care) (produce)
be in existence (exist) be probative of (prove) B i b l i c a l A f f e c t a t i o n . In many respects the
be influential on be promotive of
language o f the law resembles the language o f
(influence) (promote)
the King James Version (1611) or o f Shakespeare.
be in receipt of (have be violative of (violate)
It is full o f the a r c h a i s m s we associate either
received)
with the Bible or, less commonly, with Shake­
Many such wordy constructions are more natu­ speare. Thus, as late as the 1980s, the Supreme
rally phrased in the present tense singular: is Court o f Mississippi published a sentence con­
able to (can), is authorized to (may), is binding taining doth, q.v., which many readers have en­
upon (binds), is empowered to (may), is unable to countered only in traditional versions o f the Bible.
(cannot). Likewise, hath and hast appear occasionally in
C. Used U nidiom atically in P lace o f A ction d r a f t i n g (of a mediocre kind). Courts still occa­
Verbs. One should always use the specific verb sionally use the Elizabethan burthen, q.v., as a
that conveys the idea o f the action described, variant o f burden, though it has not been current
rather than an unspecific òe-verb: “Some agencies for several centuries. And much o f the syntax o f
adopt procedures that permit some public partici­ legal prose is biblical: “A lawyer may never give
pation; understandable pressures from interested unsolicited advice to a layman that he retain a
outsiders are [read require] that more agencies client.” See th a t (c ).
should or (in some cases) must do so.” Even today one can open up law reports and
read o f a bounden duty, as in the line from the
b e y o n d a re a so n a b le d o u b t. See b a la n ce o f Book o f Common Prayer (“We beseech thee to
p ro b a b ility . accept this our bounden duty and service.”)— e.g.:
“It is enough for this purpose that valiant efforts
b e y o n d ca v il. See ca v il, b e y o n d . were made to persuade the district to do volun­
tarily what the United States Supreme Court and
b e y o n d th e p ale. See p a le , b e y o n d th e. the California Supreme Court had held was its
bounden duty” Los Angeles Branch NAACP v.
B F P = bona fide purchaser. Though the abbrevi­ Los Angeles Unified Sch. Dist., 750 F.2d 731, 752
ation is an initialism and not an acronym, the (9th Cir. 1984) (Pregerson, J., concurring). The
periods are customarily omitted— e.g.: “Having origins o f the phrase were legal and not religious,
thus failed to comply with federal law, the Bank but today “when we say bounden duty we do not
is hardly in a position to claim the advantageous call in any way to mind the bond [that] tied the
status o f a BFP without notice . . . First Nat'l feudal underling to his lord or the apprentice to
Bank v. Lewco Secs. Corp., 860 F.2d 1407, 1414 his master.” Jocelyn Simon, English Idioms from
(7th Cir. 1988). the Law (pt. 1), 76 Law Q. Rev. 283, 285 (1960).
Though traditions die hard, these linguistic
BI-, s e m i -. One can remember the proper prefix in anachronisms ought not to be perpetuated. They
a given context by noting that bi- means “two,” needlessly widen the rift between what is legal
and semi- “half.” Hence bimonthly = every two and what is lay and unwholesomely lend the air
months (not “twice a month”) and semimonthly = o f priestly sanctity to the legal profession. Even
every half-month, or twice a month. Biweekly and the terms lay and legal used as opposites, much
semiweekly work similarly. like lay and ecclesiastical, conjure up this notion;
Still, bi- has been used to mean “occurring twice but they are not easily avoided.
in a (specified span o f time)” so often (and legiti­ It is worth adding to this discussion that cita­
mately, e.g., in biennial) that, for the sake of tion to the Bible as legal precedent is not an
clarity, it may be better to avoid the prefix alto­ admirable practice. Cardozo once wrote, “In days
gether when possible. See the next entry. not far remote, judges were not unwilling to em­
bellish their deliverances with quotations from
bia n n u a l; b ie n n ia l; sem ia n n u a l. Biannual and the poets. I shall observe toward such a practice
semiannual both mean “occurring twice a year.” the tone o f decent civility that is due those de­
Biennial means “occurring once every two years.” parted.” Law and Literature, 52 Harv. L. Rev.
The distinction between these words becomes im­ 471,484 (1939). Yet, even in as religiously diverse
108 bicentennial

a society as the U.S., the practice o f quoting from b ie n n ia l = every two years. If we scale the
the Bible has persisted. For example: numerical summit, we have triennial (3), quad­
rennial (4), quinquennial (5), sexennial (6), sep­
[As] far as money buried or secreted on privately owned tennial (7), octennial (8), novennial (9), decennial
realty is concerned, the old distinction between treasure-
(10), vicennial (20), centennial (100), millennial
trove, lost property, and mislaid property seems to be of
little value and not worth preserving. The principal point
(1,000). See B i- & b ia n n u a l.
of distinction seems to be the intent of the true owner
who necessarily is not known and not available. Therefore b ig a m y ; p o ly g a m y ; d ig a m y ; d eu tero gam y .
the evidence on his intent will usually be scant and Bigamy = going through a marriage ceremony
uncontroverted. . . . I would guess his motivation often with someone when one is already lawfully mar­
to be that of the one-talent servant in the parable in the
ried to someone else ( CDL). It may be committed
25th Chapter of Matthew: “And I was afraid, and went
and hid thy talent in the earth. . . .” We should hold
knowingly or unknowingly; if knowing, bigamy is
that the owner of the land has possession of all property a criminal offense.
secreted in, on and under his land and continues to hold Digamy and deuterogamy both mean “a legal
possession for the true owner, who, incidentally, may not second marriage occurring after an annulment or
always be the person doing any burying. Matthew 13:44— a divorce from or the death o f the first spouse.”
“Again, the kingdom of heaven is like unto treasure hid
Deuterogamy is the more common term (to the
in a field; the which when a man hath found, he hideth,
and for joy thereof goeth and selleth all that he hath, and
extent that either might be called common!) and is
buyeth that field.” What reason is there for transferring not, like digamy, liable to confusion with bigamy.
possession to the individual who happens to dig up the Hence digamy should be considered a n e e d l e s s
property? Or for guessing about the intent or the memory VARIANT.
of the person doing the burying? A simple solution for all Polygamy is the generic term for “multiple mar­
of these problems is to maintain the continuity of posses­
riages,” and encompasses bigamy; it is much used
sion of the landowner until the true owner establishes his
title.
by anthropologists, describing both polygyny (the
Schley v. Couch, 284 S.W.2d 333, 339-40 (1955) practice o f having several wives) and polyandry
(Wilson, J., concurring). (the practice o f having several husbands).

The thing speaks for itself. b ig -g u n la w y e r . See law yers, derogatory

N A M E S FOR (A).

bicentennial; bicentenary. See centennial.


b i l a t e r a l c o n t r a c t ; u n i l a t e r a l c o n t r a c t . A uni­
lateral contract is one in which a promise is given
bid (= to offer a bid) forms bid in the past tense. by one party in exchange for the actual perfor­
E.g., “ [T]he defendant bid for the wrong property mance by the other party. A bilateral contract is
at an auction sale . . . .” William F. Walsh, A one in which each party promises a performance,
Treatise on Equity 479 (1930)./ “The tax is com­ so that each party is an obligor on his own promise
puted on the amount bid for the property . . . ” and an obligee on the other’s promise.
Robert Kratovil, Real Estate Law 48 (1946). It is a legal solecism to use unilateral contract
In the sense o f bid farewell (= to wish someone to mean a promise for which no consideration was
well upon parting), the past tense is bade, rhym­ requested, or for which no sufficient consideration
ing with glad , and the past participle is bidden. was given. Instead, the phrase “should be re­
“She did as she was bid [read bidden]” served for cases in which a legal obligation has
But which past tense is correct in the phrase to been created, but only one party to the obligation
bid fair ( = to seem likely)—is it bid fair or bade has made a promise.” 1 Samuel Williston &
fair? Writers have used both— e.g.: “ [ Jludicial de­ W.H.E. Jaeger, A Treatise on the Law o f Contracts
cision as an agency o f legal growth bade fair to § 13, at 26 (3d ed. 1957). I f the transaction does
become sterile . . . .” Roscoe Pound, The Forma­ not result in a legal obligation, unilateral offer or
tive Era o f American Law 70 (1938)./ “ [CJertainly unilateral promise may describe the transaction,
the action o f indebitatis assumpsit bid fair to but not unilateral contract Id.
overtake, at one time or another, most o f the other
forms o f action.” J.H. Baker, An Introduction to b ill = (1) a formal written complaint, such as a
English Legal History 420 (3d ed. 1990). The OED court paper requesting some specific action for
records only bade fair, the better form. reasons alleged; (2) a pleading or court paper in
equity, such as a bill o f certiorari, a bill o f discov­
bid, n.; tender, n. In AmE, both terms are used, ery, a bill in interpleader, a bill o f peace, or a bill
whereas in BrE only the latter would appear, in o f review; (3) a legislative proposal offered for
the sense “a submitted price at which one will debate before its enactment; (4) loosely, an en­
perform work or supply goods.” acted statute; (5) an invoice; or (6) a bill o f ex­
blackletter law 109

change, i.e., an unconditional order in writing, declare their common intention to bring about a
addressed by one person to another, signed by the transfer o f ownership, usu. accompanied by the
person giving it, requiring the addressee to pay buyer's initial payment; (2) loosely, the buyer's
on demand, or at a particular future time, a sum initial payment in the sale o f real property; or (3)
certain in money to or to the order o f a specified in insurance, an insurer's memorandum giving
person or to bearer. With such an array o f mean­ the insured temporary coverage while the applica­
ings, bill is classifiable as a c h a m e l e o n -h u e d tion for an insurance policy is being processed.
W ORD. See s u i t .
b in d in g p r e c e d e n t. See p r e c e d e n t (b ).
billa vera. See t r u e b ill.
b irth , v.i., was used with some frequency in the
b ill in c h a n c e r y ; b ill in e q u it y . See ch an cery . Middle Ages as a verb. It fell into disuse, however,
and only recently has been revived in AmE <the
In the U.S. and France, billion means
b illio n .
birthing o f babies>. Some dictionaries label it
“one thousand millions” ( = 1,000,000,000); but in dialectal. Given its usefulness and its long stand­
G.B., Canada, and Germany, it means “one mil­ ing in the language, there can be no substantial
lion millions” ( = 1,000,000,000,000). An Ameri­ objections to it.
can trillion, q.v., equals the British billion. In
BrE, however, the AmE meaning is gaining b ite > b it > b itte n . Writers occasionally fall into
ground esp. in journalism, technical writing, and dialectal usage by using bit, the past-tense form,
even in government statements about finance. as a past participle—e.g.: “In a Texas case the
court said hypothetically that if defendant had
b i ll o f in d ic t m e n t . See in d ic t m e n t .
bit [read bitten] o ff such a portion o f the victim's
under lip as to deprive him o f the lip, and the
b ill o f la d in g . See la d in g , b i l l o f.
piece had been put back and made to grow ‘it
would still be maiming under the law .'” Rollin M.
b i ll o f p a r t ic u la r s ; m o t io n f o r m o r e d e fin it e
Perkins & Ronald N. Boyce, Criminal Law 242
In 1948, the Federal Rules o f Civil
state m e n t.
n.38 (3d ed. 1982).
Procedure were amended to abolish the bill o f
particulars, which was superseded by the motion
b ite at th e a p p le, o n e . See o n e b ite at th e
for more definite statement. The latter allows a
a p p le.
party who must respond to a pleading to ask the
court to require the other party to refile a vague
b ite at th e c h e rry , o n e . See o n e b ite at th e
or ambiguous pleading. In several jurisdictions,
a p p le.
though, the bill o f particulars remains in current
practice.
b iw e e k ly ; sem iw e e k ly . See BI-.

= a section or addendum, usu. in


b ill o f r ig h t s
a constitution, that defines the situations in which B la ck a cre is the proverbial example o f real es­
a politically organized society will permit free, tate in hypothetical property problems. Abutting
spontaneous, and individual activity, and that tracts are usually called Whiteacre, Brownacre, or
assures members o f the society that government some other colorized denomination. These terms
powers will not be used in certain ways. The have long been a part o f the common-law tradi­
most famous such document is the Bill o f Rights tion: “Where a devise is o f blackacre to A., and o f
(conventionally capitalized) o f the U.S. Constitu­ whiteacre to B. in tail, and, if they both die with­
tion. But England also had a Bill o f Rights o f out issue, then to C., in fee, here A. and B. have
1689, which established that the government cross remainders by implication.” (Blackstone)/
could not raise revenue without parliamentary “The world o f bar law is a peculiar place. Every
authorization. house has a name, usually Blackacre or White-
acre* Stephen Labaton, At the Bar, 18 Aug. 1989,
b im o n t h ly ; s e m im o n t h ly . See BI-. at 20.

b in d = to impose a legal duty on (a person or b la c k le tte r la w . Black-letter is a term that de­


institution). Thus, courts are said to be bound by scribes Gothic or Old English type in antiquated
precedent and persons who have signed contracts books cblack-letter type>. (The word is usu. hy­
are said to be contractually bound. phenated in nonlegal contexts relating to typogra­
phy—but see the final paragraph.) From 1482 to
= (1) in property law, a document in
b in d e r 1679, the medieval Year Books were printed in so-
which the seller and the buyer o f real property called Black Letter editions, which were printed in
110 blackmail

a heavy Gothic type (and which contain many b la m a b le. See b la m e w o rth y (b ).
errors).
By extension the term came to be applied to
b la m a b len ess. See b la m e w o rth in e ss.
legal principles that are fundamental and well
settled, or statements o f such principles in a
quasi-mathematical form, because such principles b la m e, v.t. In the best usage, one blames a per­
were traditionally printed in boldface type in law­ son; one does not, in the traditional idiom, blame
books. Law students frequently distinguish be­ a thing on a person. E.g., “I blame the fires on
tween professors with a predilection for blacklet­ him.” [Read I blame him for the fires.]
ter law (what the law is) and those whose interest
lies more in public policy (why the law is or
b la m e w o rth in e ss; b la m a b len ess. The latter is
what it ought to be). See B la ck s to n e la w y e r &
a N E E D L E S S VA R IA N T — e.g.: “The only rational ba­
h o r n b o o k law .
sis for allowing recovery in tort seems to be blam­
Formerly hyphenated, legal writers have conve­
ableness [read blameworthiness].” C.B. Whittier,
niently merged the phrase into a solid word— e.g.:
Mistake in the Law o f Torts, 15 Harv. L. Rev. 335,
“Robinson correctly stated the general under­
335 (1902).
standing as o f 1939 in blackletter text . . . .”
Grant Gilmore & Charles L. Black, Jr., The Law
o f Admiralty 342 (2d ed. 1975)7 “The format o f b la m e w o rth y . A. A nd culpable . Though the
blackletter rule and explanatory comment, famil­ two words are etymologically equivalent, in 20th-
iar from real Restatements, is well suited to its century usage the Anglo-Saxon blameworthy has
purpose.” Douglas Laycock, The Death o f the Ir­ tended to be used in noncriminal, the Latinate
reparable Injury Rule 266 (1991). culpable in criminal contexts. Hence blameworthy
in civil contexts: “The indemnitee’s conduct is
b la ck m a il referred originally to rent payable in sufficiently blameworthy to preclude indemnity.”/
cattle, labor, or coin other than silver (i.e., white “Plaintiff is not blameworthy in failing to bring
money). Then it came to denote, esp. in Scotland, suit earlier; thus laches does not apply.”/ “We also
a kind o f protection money: payment that robbers consider whether there was trickery or blamewor­
extorted from landowners for exemption from thy action by the police.”
their raids. Today the word applies to any men­ And culpable in criminal contexts: “The court’s
acing demand made without justification— i.e., to focus must be on the defendant’s culpability, not
illegal extortion generally. on those who committed the robbery and shot the
Since at least the late 19th century, the word victims.”/ “The defense o f mistake o f fact was
has been a verb as well as a noun— e.g.: “Thus not available as a defense to negate the culpable
often arises secret intimidation, enforced confes­ mental state o f criminal negligence.”/ “It is rea­
sions, and blackmailed pleas o f guilty. These sin­ sonable to presume that the sentencing judge
ister dangers were extinguished from the Com­ who revokes probation takes a fresh look at the
mon Law o f England more than six centuries ago.” defendant’s culpability and circumstances and
1 Winston Churchill, A History o f the English considers at that point the amount o f time the
Speaking Peoples 223 (1956). defendant should be required to serve.” See
g u ilty.
B la ck ston ea n . The adjective is preferably so Occasionally, however, culpability creeps into
spelled. Some writers ill-advisedly make it Black- civil contexts, as here in the context o f punitive
stonian. damages, a hybrid remedy: “Exemplary damages
are awarded only in cases o f extreme culpability
B la ck ston e la w y e r = (1) a lawyer with a broad and are limited to the plaintiff’s demonstrable
knowledge of black-letter principles; (2) a self- litigation expenses.” Nevertheless, the writer o f
educated lawyer, esp. in antebellum America, that sentence was describing egregious conduct,
whose legal training consists primarily o f reading and blameworthiness today hardly seems appro­
Blackstone’s Commentaries. Sense (2) usu. ap­ priate for flagrant conduct.
pears in historical contexts— e.g.: “For every Jef­ B. And blameful; blamable. Blameworthy and
ferson devoting five full years to legal training, blamable both mean “deserving to be blamed,”
scores of Blackstone lawyers9entered the profes­ the latter being a n e e d l e s s v a r i a n t . Blameful
sion after a few months o f study, self-proclaimed (= imputing blame; blaming) has been mistak­
masters o f one text.” Robert A. Ferguson, Law enly used for blameworthy. We need not use up
and Letters in American Culture 29 (1984). For more words for the meaning replicated by blame­
an example from the writings o f Thomas Jeffer­ worthy and blamable. Cf. c e r tw o r th y & e n b a n c-
son, see LAW YERS, DEROGATORY N A M E S FOR (A). w o rth y .
blue-pencil test 111

b la n d ish ; b ra n d ish . The former means “to ca­ blot on title. See cloud on title.
jole; to persuade by flattery or coaxing.” The latter
means “to wave or shake in a menacing or threat­ b lo w h o t a n d c o ld = to take mutually contradic­
ening way.” tory positions or put forward contradictory views.
• “The plaintiff is blowing hot and cold in this
b la ta n t; flagran t. There is a well-defined distinc­ case; if we follow him in this latter position,
tion, but each word is frequently misused for the why then he loses the case on the merits.” Hall
other. What is blatant stands out as glaring and v. Keller, 80 F. Supp. 763, 774 (W.D. La. 1948).
repugnant; what is flagrant is shocking and de­ • “Inconsistent allegations can be made in sepa­
plorable; this latter term connotes outrage. A per­ rate claims or defenses under F.R.C.P. 8(e)(2);
jurer might tell blatant lies to the grand jury to but no authority is known to the undersigned
cover up for his flagrant breach o f trust. Egregious which permits blowing hot and cold in the same
criminal acts are flagrant <flagrant arson>, not cause o f action, as attempted by the proposed
blatant. E.g., “For any flagrant dereliction or dis­ amendment.” Steiner v. Twentieth Century-Fox
regard o f professional duty on the part o f the Film Corp., 140 F. Supp. 906, 908 (S.D. Cal.
attorney, the license by which he was admitted 1953).
to practice may be revoked.”/ “The court could • “Allen had not only earlier taken a directly
have properly determined, as it did, that Batson’s contrary position . . . he had taken the same
conduct was so flagrant as to justify severe sanc­ contrary position in one state administrative
tions.” proceeding where that also suited his purpose
Blatant is correctly used in this sentence: “The . . . . [N]o further judicial aid should be given
question concerning the blinding o f the Libyan in this particular enterprise o f blowing hot and
the Colorado shooting was blatantly improper.” cold as the occasion demands.” Allen v. Zurich
Here flagrant is misused for blatant: “The consti­ Ins. Co., 667 F.2d 1162,1167 n.3 (4th Cir. 1982).
tutional violation is flagrantly [read blatantly] • “The theory o f attack by prior inconsistent
apparent in a case involving the imposition o f a statements is not based on the assumption that
maximum sentence after reconviction.”/ “No mat­ the present testimony is false and the former
ter how infrequently the special counsel has statement is true, but rather upon the notion
brought Hatch Act charges in the past, federal that talking one way on the stand and another
employees can hardly be faulted for concluding way previously is blowing hot and cold, and
that registering voters in flagrant [read blatant] raises a doubt as to the truthfulness o f both
disregard o f the special counsel’s advice is not statements.” Charles T. McCormick et al., Evi­
worth the grave risk to their livelihoods.” dence § 34, at 74 (3d ed. 1984).
Black*s defines flagrant necessity as “a case of
For an amusing example o f blowing hot and cold,
urgency rendering lawful an otherwise illegal
see C o d d ’s P u zzle.
act,” and flagrantly against the evidence as “so
much against the weight o f the evidence as to
B lu e B o o k = (1) in G.B., a printed report (as o f a
shock the conscience and clearly indicate passion
Royal Commission) presented to Parliament and
and prejudice o f the jury.” Flagrant is the wrong
traditionally softbound in blue covers; (2) in some
choice o f word in the first phrase, though arguably
American states, a compilation o f session laws;
correct in the second because o f the element o f
(3) a volume formerly published to give parallel
shock. Blatant necessity would be the better word­
citation tables for a volume in the National Re­
ing for the first phrase, blatant here taking on
porter System; or (4) the formal name for the
its nonpejorative meaning “completely obvious or
citation guide, formerly called A Uniform System
strikingly conspicuous”; a blatant necessity would
o f Citation (usu. written Bluebook).
allow one, e.g., to commit battery upon another
For more terms connected with sense (1), see
by shoving him out o f the way o f an oncoming
G reen P a p e r & W h ite P a p e r.
bus.
The phrase blatantly obvious is a r e d u n d a n c y .
b lu e -p e n c il test = a judicial standard some­
E.g., “The reasons for the dropping pass rate on
times applied by a court considering an illegal
the bar exam are blatantly obvious [read are ob­
contractual provision and deciding whether to in­
vious].”
validate the entire contract or only the offending
words, the standard consisting in whether it
B le n d s . See portm anteau w ords. would be possible to sever the offending words
simply by running a blue pencil through them,
b lo c ; b lo c k . Political groups or alignments are as opposed to changing, adding, or rearranging
blocs. Block serves in all other senses. words. E.g., “Despite such criticisms, numerous
112 blue-sky laws

jurisdictions have presented meritorious justifica­ when we have a serviceable adjective; and second,
tions for requiring a strict application o f the ‘blue body heirs is so little used that it grates on the
pencil’ test.” Holloway u. Faw, Casson & Co., 552 legally trained ear.
A.2d 1311, 1325 (Md. Ct. Spec. App. 1989). “It
used to be thought that promises could be severed
b o d y c o r p o r a te is a variant o f corporation that
merely because the 'blue pencil’ test was satisfied;
emphasizes the entity and the members that
but this view no longer prevails. The test may
make it up rather than the abstract notion (corpo­
restrict, but it does not determine, the scope of
ration)', body corporate is now used more com­
the doctrine o f severance.” G.H. Treitel, The Law
monly in BrE than in AmE. E.g., “A body corpo­
o f Contract 449 (8th ed. 1991).
rate cannot be appointed receiver . . . ” J.
Charlesworth, The Principles o f Company Law
b lu e-sk y law s. In the early 20th century, blue
175 (4th ed. 1945).
sky meant “an unsound investment, esp. in fake
securities.” Hence laws designed to protect gull­
ible investors in securities have been given the b o d y h e irs. See b o d ily h e irs & h eir.
name blue-sky laws. The phrase is used in BrE
as well as in AmE—in the latter, usually in refer­ b o g u s ch e c k . See c h e ck , w o rth le ss.
ence to state laws.
As casual JARGON, blue-sky (usu. hyphenated)
b o ile r p la te [fr. the newspaper business, in which
has been transformed into a verb meaning “to
it originally referred to syndicated material in
approve (the sale of securities) in accordance with
mat or plate form] = (1) ready-made or all­
blue-sky laws.” The form o f the verb is almost
purpose language that will fit in a variety o f
always past tense or past participle— e.g.: “This
documents; or (2) fixed or standardized language
solicitation and purchase was unlawful under
that is not subject to modification. Sense (1) ex­
California law because it had not been blueskyed.”
presses the lawyer’s usual understanding; sense
Hecht v. Harris, Upham & Co., 283 F. Supp. 417,
(2) expresses the nonlawyer’s common under­
443 (N.D. Cal. 1968). Less commonly, the past-
standing.
participial adjective means “having blue-sky
The term first entered American legal usage in
laws” cblue-skyed states>. See n o u n s a s v e r b s .
the 1950s and is today commonly used either as
a noun or as an adjective (in phrases such as
b lu n d e rb u s s (= an obsolete firearm that scat­
boilerplate clause or boilerplate language). The
ters shot and is intended for close-range shooting)
earliest known legal example appeared in Ohio:
is often used figuratively in legal contexts. E.g.,
“After what appears to be the ordinary 'boiler­
“This claim—on which every serious constitu­
tional question turns—was pleaded in blunder­
plate9 reference to payment o f debts, taxes and
costs o f administration, the testatrix in the case
buss fashion in each o f the complaints.”/ “Many
at bar gave more than usual attention to arrange­
o f the discovery requests are specific, many are
ments in connection with her last rites.” In re
blunderbuss, and many seek discovery previously
Estate o f Carrington, 136 N.E.2d 182, 185 (Ohio
refused by the court.”/ “Since double payments
Prob. Ct. 1956).
can be prevented by a letter or a telephone call,
The word is best spelled as one word in AmE.
it is unreasonable to accomplish this objective by
In BrE, it is commonly hyphenated (boiler-plate).
the blunderbuss method o f denying assistance to
For an example o f boilerplate language, see a ttes­
all indigent newcomers for an entire year.” The
ta tio n cla u se.
more recent sense of blunderbuss (= a blundering
person) has nothing to do with this sense. The
term is infrequently misspelled blunderbus. b o ls te r = (of a courtroom lawyer) to build up a
Sometimes the equivalent shotgun or scatter- witness’s credibility in anticipation o f impeach­
gun is used: “ 'Fraud, deceit, negligence, or estop­ ment—a practice generally disallowed by Ameri­
pel’ is a scatter-gun blast that could hardly miss can evidentiary rules. E.g., “ [T]he prosecutor may
winging the intended quarry.” not, among other things, make explicit personal
assurances that a witness is trustworthy or im­
blu sh , at first. See at first blu sh . plicitly bolster the witness by indicating that in­
formation not presented to the jury supports the
b o d ily h eirs; h eirs o f th e b o d y ; b o d y h eirs. testimony.” U.S. v. Lewis, 10 F.3d 1086,1089 (4th
The first and second are the classic formulations Cir. 1993)./ “Attempts to bolster a witness by
o f the phrase, both unobjectionable. Body heirs is vouching for his credibility are normally improper
much inferior to bodily heirs for two reasons: first, and an error.” U.S. v. Baptista-Rodriguez, 17 F.3d
generally we should not use a noun adjectivally 1354, 1372 (11th Cir. 1994).
bond 113

b o m b a s tic is sometimes misconstrued to mean is required does not depend on the sincerity, genu­
“strident” or “violent.” Properly, bombastic (lit., ineness, etc. o f the judge’s doubt—we can assume
“full o f stuffing or padding”) means “pompous; any judge’s doubt has these qualities.” Griffin v.
highfalutin; overblown.” Here is a journalistic ex­ Lockhart, 935 F.2d 926, 929 n.2 (8th Cir. 1991)
ample o f the error: “ ‘If there is any change in the (citing DMLU and recommending instead suffi­
mood o f the kids, it is for the worse/ says the cient doubt).
Brixton police superintendent. T h ey are more
bombastic, they are cocky, they threaten riot as bona fides9 n.; g o o d fa ith ; bonne fo i . Though
an answer if they don’t get what they w a n t/” the adjective bona fide has been fully anglicized,
(Eng.) This confusion may arise from the sugges­ the noun phrase bona fides has lost much
tiveness o f bomb in bombastic. ground—esp. in AmE— to good faith, n., which is
generally preferable. The pronunciation o f bona
bona et ca ta lla is t h e a r c h a ic L A T IN ISM fr o m fides, lboh-nd-fl-deezl, unlike that of its adjectival
w h ic h , b y loan t r a n s l a t io n , d e r iv e s th e dou ­ sibling, sounds foreign and bombastic. Bonne foi,
blet goods and chattels. a Frenchified variant, sounds still more so; fortu­
nately, it is rarely encountered.
b o n a fide. A. A nd good-faith , adj. Bona fide, Typically, one writes, “He executed the contract
adj., is understood by educated speakers o f En­ in good faith,” not really thinking o f bona fides as
glish; as a legal term, it is unlikely to give way an alternative wording, although admittedly it is
completely to good-faith. Cf. bona fides . sometimes used: “[T]heir bona fides was manifest
B. A djective o r A dverb. Bona fide was origi­ on the record.” Patterson v. American Tobacco
nally adverbial, meaning “in good faith” <the suit Co., 634 F.2d 744, 748 (4th Cir. 1980).
was brought bona iide>. The phrase is still used As in the example just quoted, the noun phrase
in this way, most often in BrE— e.g.: “[T]he under­ bona fides is singular: this bona fides, not these
taking was given bona fide, i.e., without any bona fides. But writers sometimes mistakenly
knowledge that the claim was not a good one.” make it plural— e.g.: “Southwest asserts that it
1 E.W. Chance, Principles o f Mercantile Law 25 was denied the opportunity to be present and to
(P.W. French ed., 13th ed. 1950). present evidence when Lowe’s bona fides were
Today it is more commonly used as an adjective [read bona fides was] examined by the Land Of­
<it was a bona fide suit>. None o f the forms o f fice Manager.” Southwestern Petroleum Corp. v.
this term should be hyphenated or written as one Udall, 361 F.2d 650, 657 (10th Cir. 1966)./ “[H]e
word, as bona fide sometimes is when functioning was neither advised at trial that his bona fides
as a p h r a s a l a d j e c t i v e . The opposite o f bona were [read bona fides was] in issue nor given an
fide is mala fide, q.v.; the opposite o f bona fides is opportunity to disprove . . . the inference drawn
mala fides. by the court.” Sledge v. J.P. Stevens & Co., 585
C. M eaning “ sincere, genuine.” In legal con­ F.2d 625, 641 (4th Cir. 1978).
texts, the adjective bona fide should be avoided
in the lay sense arrived at through s l i p s h o d bona vacantia (lit. “vacant goods”) is a term

e x t e n s i o n , namely “genuine; not fake.” E.g., OF artmeaning “property not disposed o f by a


“Even within the 50-mile area, containers that go decedent’s will and to which no relative is entitled
directly to the owner o f the cargo or to bona upon intestacy.” E.g., T h e Crown sought to inter­
fide warehouses [read genuine warehouses] are pose a claim to bona vacantia between creditors
exempted from the rule.”/ “Ms. Rebhun argued and former members.” (Eng.) The phrase should
successfully that Michael’s alcoholism was a bona not be used when unclaimed property or ownerless
fide illness [read genuine illness] that prevented goods will suffice. Cf. esch ea t.
him from taking responsibility for filing his
taxes.” For Special Cases, a *Tax Therapist,” N.Y. b o n d = (1) a written promise to pay a debt or to
Times, 8 Dec. 1989, at 27. do some act (e.g., an appeal bond); (2) an interest-
One court has justifiably criticized the phrase bearing certificate o f debt that is issued by a
bona fide doubt in reference to a judge’s doubt, corporation or governmental entity usu. to pro­
saying that the phrase “appears to be a faulty vide for a particular financial need (e.g., a munici­
construction o f words . . . . [U]nfortunately, it pal bond); or (3) an insurance agreement whereby
has reached a level o f being standard legal idiom a person or corporation becomes a surety to pay,
in mental competency cases . . . . For purposes within defined limits, for a financial loss suffered
o f determining whether an evidentiary hearing by a second person under certain circumstances
should be held, . . . ‘bona fide doubt9is a misno­ (e.g., a bail bond, delivery bond, indemnity bond,
mer. It does not convey the correct sense o f the or judicial bond). See d eb e n tu re .
test: the question whether an evidentiary hearing In criminal law, bail bond (= security for a
114 bond out

released prisoner’s return for trial) is archaic in b o r d e r e a u (= [1] a note o f account or, more
BrE but current in AmE. See b o n d ou t. commonly, [2] a description o f reinsured risks) is
the singular, -reaux the plural.
b o n d o u t (= to post a bail bond and thereby The word has recently come to be used as a
obtain release from [jail]) is an American casual- verb— e.g.: “American and Southeastern Fire In­
ism. E.g., “Loretta Lynn’s son Ernie has bonded surance Co., to which the policy had been border-
out o f a Tennessee jail . . . .” Helen Bryant, eauxed,’ refused payment.” Merchants Nat’l Bank
Names & Faces, Dallas Times Herald, 5 April v. Southeastern Fire Ins. Co., 751 F.2d 771, 773
1991, at A2. (5th Cir. 1985). The proper verb form, however,
would be bordereau (singular), not -reaux. Hence,
in the above quotation the word should be border-
b o o k , b r in g to. See b r in g to b o o k .
eaued.

b o o k k e e p in g ; a cco u n tin g . Bookkeeping (so b o r k , v.t., an eponym o f Robert Bork, President


spelled, being the only word in the English lan­ Reagan’s unsuccessful nominee for the U.S. Su­
guage with three consecutive sets o f doubled let­ preme Court, means (1) “(of the U.S. Senate) to
ters) is the mechanical recording o f debits and reject a nominee for the U.S. Supreme Court be­
credits, or the summarizing o f financial informa­ cause o f his or her untraditional political and
tion, usu. about a business enterprise. Accounting legal philosophy”; or (2) “(o f political and legal
differs from bookkeeping because it is not me­ activists) to embark on a media campaign that
chanical: it requires judgment about such issues helps pressure U.S. Senators into rejecting a pres­
as when a specified type o f transaction should ident’s nominee for the U.S. Supreme Court.”
be recorded, how the amount o f the transaction Originally, the word was usually capitalized, but
should be calculated, and how a balance sheet no longer. It most often appears in sense (2)—
and income statement should be presented. e.g.: “One o f the legacies o f the Bork nomination
is, I think, a contribution to the political diction­
b o o tstr a p (p in g ). The original expression was ary. I’m referring to the verb, to bork, which is
one among several variants o f to pull oneself up what Sen. Edward Kennedy, D-Mass., did to Rob­
by one’s bootstraps (a futile effort)— e.g.: “[I]t ert Bork. The passive, to be borked, is what hap­
would be as impossible for the directors, in under­ pened to Bork. Now, what does it mean to be
taking to contract with themselves, to accomplish borked? Simply this: Your opponents take a mat­
any result as it would be for them to undertake ter involving a law and criticize you in terms o f
to lift themselves over a fence by their bootstraps.” policy outcome. You defend yourself by discussing
In re State Exch. Bank, 159 N.E. 839, 840 (Ohio the issue in legal jargon.” Terry Eastland,
Ct. App. 1927)./ “That would be equivalent to Reagan’s Legacy at Justice Poses Challenge to
pulling one’s self out o f the mire by his own boot­ New President, Manhattan Law., 1 Nov. 1988, at
straps.” McCarthy v. State ex rel. Harless, 101 12./ “After they persuaded Ms. Hill to submit an
P.2d 449, 453 (Ariz. 1940)./ “To support the doc­ unsworn statement by fax, members o f the Senate
trine o f precedent by reference to precedent would trio-—probably in cahoots with a team o f high-
be to try to pull itself up by its own bootstraps.” powered Washington lawyers, lobbyists and pub­
Glanville Williams, Learning the Law 88 (11th lic relations specialists out t o 4bork’ the nominee—
ed. 1982). caused the sensational Hill statement to be leaked
The idea has now been telescoped into the ger­ to a couple o f reputable reporters.” William Safire,
und bootstrapping—e.g.: “It is only by deciding The Plumbers’ Return, 17 Feb. 1992, at A l l .
on appeal and on the merits that the claim o f
foreclosure is insubstantial that this court can b o m ; b o r n e . Both are past participles o f bear.
[reach its own conclusion]. . . . This appellate Borne is for general purposes <she has borne
bootstrapping is the more improper because the a child> <he has borne that burden for a long
question o f the adequacy o f the foreclosure is in time>. Born is used either as an adjective <a born
fact not concluded by this appeal.” Pettit v. Olean swindler> ctheir firstborn son> or as the fixed
Indus., Inc., 266 F.2d 833, 839 (2d Cir. 1959) passive verb in to be born <she was bom last
(Lumbard, J., dissenting)./ “This argument, too, June in London>.
does not warm us and indeed strikes us as a Bear in mind yields borne in mind: “It should
bootstrapping approach.” Hudson v. John Han­ be born in mind [read borne in mind] that while
cock Mut. Life Ins., 314 F.2d 16, 23 (8th Cir. the McAlester factors will often plainly indicate
1963). The term is now often used, esp. in law, in that immunity is available, there are situations
the sense “making a success out o f one’s meager in which immunity must be afforded even though
resources.” one or more o f the factors does not obtain.”
boutique 115

b o th . A. Both . . . and. This construction com­ bo tto m , v.i. & v.t., may be used literally: “The
prises a pair o f c o r r e l a t iv e c o n j u n c t io n s that well was bottomed in sand A.” Or it may be used
must frame syntactically analogous parts o f a figuratively, as it more frequently is in legal con­
sentence. E.g., "The Chancellor decided all ques­ texts: “The district court properly dismissed plain­
tions both o f law and fact [read both o f law and tiff's section 1983 claim, bottomed on her asser­
o f fact or o f both law and fact]” tion o f an illegal arrest.”/ “This contention is
B. Both . . . as well as. This construction is unsound, and the argument predicated thereon is
incorrect for both . . . and. E.g., “Attorney’s bottomed wholly upon a false premise.” Ford v.
fees are expressly authorized both under section Moody, 276 S.W. 595, 597 (Ark. 1925). This pecu­
1983, 42 U.S.C. § 1988, as well as under [read liar legal idiom was originally nonlegal, dating in
both under . . . and under or under . . . as well the OED from 1637. From a modem stylistic point
as under] the Rehabilitation Act, 29 U.S.C. o f view, base might be preferable to bottom in
§ 794a(b).7 uBoth Norton as well as the judges figurative senses.
[read Norton as well as the judges or Both Norton The transference to a nominal sense o f bottom
and the judges] conceded that Moses had a cause is likely to provoke laughter: “Title VI on its own
o f action for special assumpsit on the agreement bottom [read foundation] reaches no further than
to indemnify him against the consequences o f his the Constitution.” Guardians Assfn v. Civil Serv.
agreement.” Comm’n, 463 U.S. 582, 589-90 (1983)./ “The deci­
C. R edundancies with. Several wordings with sions demonstrate that the due process approach
both cause redundancies. One is both . . . each considers each case on its own bottom [read
other— e.g.: “Both Signad and Sugar Land are basis].”
seeking in personam, rather than in rem, judg­
ments against each other” The sentence would b o t t o m a g e . Bottomry, denoting a
b o tto m ry ;
bear either both or each other, but it cannot take special type o f commercial-insurance contract in
them together. admiralty, may be used as both n. & v.t. Bot­
Another is both alike—e.g.: “The statutes of tomage is a N E E D LE S S VA R IA N T from L A W FRENCH.
these states are both alike [read are alike].”
Yet another is both concurrently— e.g.: “Happily b o u n d b a iliff. See b u m b a iliff.
now, as we shall see, every judge has both a
Common Law and an Equity mind, and applies bounden. See b ib l ic a l a f f e c t a t io n .
them both concurrently [read concurrently].” Ed­
ward Jenks, The Book o f English Law 36 (P.B. Bounteous is poetic or
b o u n t ifu l; b o u n te o u s .
Fairest ed., 6th ed. 1967). literary for bountiful, which is preferred in legal
D. Both (of) the. Though the idiom is falling contexts.
into disuse, both the (or both these) has a fine
pedigree and continues in formal English—e.g.: which is becoming an a r c h a i s m , is cur­
b o u n ty ,
“The hazard, in both these respects, could only be rent in the context o f wills and estates, although
avoided, if at all, by rendering that tribunal more little used elsewhere. It means “munificence; lib­
numerous . . . .” The Federalist, No. 65, at 398 erality in giving; gift” (COD). E.g., “The court will
(Alexander Hamilton) (Clinton Rossiter ed., distribute the testator’s bounty equally among all
1961)./ “The Commission is to promote both these persons belonging to the class designated in the
purposes.” J.L. Brierly, The Law o f Nations 82 will, wherever the person.”/ “Spendthrift trusts
(5th ed. 1955)./ “For both these reasons, over reli­ allow the donor to control his bounty, through the
ance on foreign authorities diminished . . . .” creation o f the trust, so that it may be exempt
Grant Gilmore & Charles L. Black, Jr., The Law from liability for the donee’s debts.”/ “The testator
o f Admiralty 46 (2d ed. 1975). The alternative may, if he chooses, fail to make provision in his
phrasing, both o f the (or both o f these), is increas­ will for his children, though they are the natural
ingly common in AmE. objects o f his bounty.”
E. Both . . . equally as. See e q u a lly as (c ).
b (o )u r g e o is . The spelling with the -o- is pre­
ferred.

is accepted as standard in the dic­


b o t t le n e c k b o u t i q u e . Since the mid-1980s, boutique has, in
tionaries. Certainly it has legitimate figurative AmE, denoted a small law firm specializing in
uses—e.g.: “Our bottleneck in housing is particu­ one particular aspect o f law practice. E.g., “Davis,
larly far-reaching and decisive.” Oddly, the word Everby & Feinberg is a small, boutique law firm
may never have been used in a literal sense (i.e., specializing in litigation.” Mark H. Epstein &
“the neck o f a bottle”). Brandon Wisoff, Winding Up Dissolved Law Part­
116 bracery

nerships, 73 Calif. L. Rev. 1597, 1625 (1985)./ lower or back part o f something, as a gun bore)
“Samuel S terrett. . . resigned Oct. 31 with part­ and broach, v.t. ( = [1] to make a hole in to let
ner Michael Dum ey to launch a tax boutique.” out liquid; or [2] to bring up for discussion). The
Jennifer Frey, Myerson & Kuhn Loses Cabot and confusion o f breach with breech consists in writ­
Office in D.C., Manhattan Law., 7-13 Nov. 1989, ers’ mistakenly using the latter where breach
at 4. belongs <breach o f a treaty>. The lapse with
broach occurs when someone writes o f breaching
b ra ce ry . See em b ra ce ry . (read broaching) a topic.
The meanings o f breach and broach become
B rackets , U se o f . See p u n c t u a t io n ( l ). close only in reference to dikes or levees and walls
(ibreach = to break open; broach = to make a
B ra cton . This proper name commonly refers both hole in). E.g., “Less than three months ago— in
to the 13th-century judge (Henry o f Bratton, who the immediate aftermath o f the breaching o f the
sat on the Court o f King’s Bench and o f Assize in Berlin Wall—the Chancellor’s closest aides were
the reign o f Henry III) and to the book he is predicting that five to eight years might still be
thought to have written (De Legibus et Consuetude needed before unity became a reality.” David
inibus Angliae, c. 1250). Some historians doubt Marsh, Kohl Takes the Burden o f Unity on His
that Bracton was the author o f Bracton (italicized Shoulders, Fin. Times, 22 Feb. 1990, at 3.
when referring to the book)— e.g.: “The author o f
Bracton appreciated this p oin t. . . .” J.H. Baker, b r e a c h e e is objectionable as an obtuse word
An Introduction to English Legal History 300 (3d meaning “one whose contract has been breached
ed. 1990). by the other contracting party.” E.g., “The
breachor's initial failure to comply establishes the
B ra n d eis b rie f. In Muller v. Oregon, 208 U.S. inadequacy o f the breachee*s remedy at law.”
412 (1908), Louis Brandeis persuaded the Court Stewart v. Stewart, 300 S.E.2d 263, 266