Monday, May 05, 2014

A Tree Falls

You don't tow the line unless you work for the Auto Club, or on a fishing boat.  On numerous occasions, I have stubbed my toe, in fact and metaphorically.  And that in turn has induced me to toe the line or at least to strive to toe the line when speaking or writing.  Those of us who use words (that is, all of us) should be careful how we use them.  I am talking about words that are spoken or written for consideration by others.  This is to be distinguished from words spoken when one is alone in the forest.  The philosophical ramifications of such a phenomenon I leave to those few college sophomores who are not business majors.  But words spoken to others may include animals, most likely a dog.  Cats are another story.  "Here kitty, kitty" seldom works unless the feline in question is hungry. But words communicated to human beings should be clear and precise to ensure the listener understands what the speaker is writing or saying. 
         In my last column titled "The Devil Made Me Do It," I discussed in the concluding paragraphs the use of language in United States v. Windsor (2013) 133 S.Ct. 2675.  Windsor held that the federal Defense of Marriage Act (DOMA), which defines marriage as a legal union only between a man and woman, is unconstitutional.  In Justice Antonin Scalia's dissent, he wrote of the majority's "legalistic argle-bargle."  (p. 2709.)
         If the reader does not know the meaning of argle-bargle (you may include me within this class), it does mean something.  Ben Zimmer's writes in his Language Log (Blog) … hmmm, log-blog, argle-bargle, sorry for the interruption ...  Zimmer writes that argle-bargle is of Scottish origin and means a "verbal dispute" or a "wrangling" argument. 
         Thanks, Ben, but I had to look up "wrangle," although a good guess gave me the meaning:  "to dispute angrily."  See Webster's New Collegiate Dictionary or any other dictionary.  A wrangler is "a bickering disputant," but also a "ranch hand who takes care of saddle-horses."  That job could make anyone prone to angry disputes.  But keep in mind that Wrangel with a capital "W" is a Russian island off the coast of Siberia.  I imagine that those living on Wrangel would be prone to wrangle.
         But getting back to Justice Scalia's dissent, quite apart from whether one agrees or disagrees with it, his esoteric "rhyming reduplication" was effective in getting our attention despite our having to run to a dictionary or blog to determine its meaning.  But as a rule, simplicity and brevity are the best guide posts.
         I characterized Justice Scalia's argle-bargle as brummagem.  What, I wondered aloud, would induce me to express such a thought in a publication of the stature of the Daily Journal?  I speculated the Devil made me do it.  Several readers asked me how the Devil got into the act.  Beats me.  But maybe I was influenced by Justice Scalia's interview in New York Magazine following the Windsor opinion.  Justice Scalia said, "I even believe in the Devil."  He acknowledged that these days the Devil does not often possess people but does get "people not to believe in him or God."  Heretofore (love that word, but do not recommend it), I had my doubts about the existence of the Devil.  But after writing (a more permanent mode of expression than speaking) brummagem, I could indeed have been possessed by the Devil, even though "that doesn't happen very much anymore." 
         But when Justice Scalia speaks or writes, there is no doubt about what he is saying or what he wishes his audience to understand.  And he vigorously supports our right to disagree. 
         The other day I shared with a colleague my analysis about a work of literature.  Perhaps my enthusiasm or certainty about the meaning of the work prompted him to remark, "That's your opinion" (emphasis on "your").  Of course it is.  I asked, "Does that mean it is not valid?"  "No, not necessarily," he replied, "But … however thoughtful, it is just your opinion."  The "just" did not sit well with me. 
         I replied that I could say the same about the judicial opinions he authored.  I pointed out that they are called "opinions."  I left out the "just."  The question to ask, I argued, was simply, "Does the opinion cohere; does it make sense; does the reader understand the argument; is it persuasive?"  Because he did not come up with a better literary analysis than the one I offered, I took that to mean he thought my analysis was persuasive even though it was "just" my analysis.
         In an article in The New York Times by Nicholas Kristof, titled "Professors, We Need You" (Feb. 15), the writer laments "that Ph.D. programs have fostered a culture that glorifies arcane unintelligibility while disdaining impact and audience."  Kristof goes on to state, "[A]cademics seeking tenure must encode their insights into turgid prose.  As a double protection against public consumption, this gobbledygook is then sometimes hidden in obscure journals — or published by university presses whose reputations for soporifics keep readers at a distance." 
         We must guard against writing opinions or briefs that suffer from these infirmities.  We do write for public consumption, and should we fail to write with clarity, we could be as off-putting as the professors Kristof writes about.  This, in turn, diminishes the public's respect for the judiciary and the legal profession. 
         To repeat what has been said countless times over the years, the best model of clarity can be found in Palsgraf v. Long Island RR.Co. 248 N.Y. 339 (1928).  Justice Benjamin Cardozo set out the facts without one excess word:
         "Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform, many feet away.  The scales struck the plaintiff, causing injuries for which she sues."  (pp. 340-341.)
         William Zinsser tells us that "Writing is thinking on paper."  But the final product reflects thoughts that have crystallized after numerous drafts. 
         And Einstein (when you are that famous, you don't need a first name) is attributed to have said:  "Good writing comes from clear thinking.  Clear thinking comes from clear understanding.  If you can't explain something simply (and clearly), you don't understand it well."  I would add that you may not understand it at all.  And if that is the case, you are talking in the forest without anyone there to listen.  And if a tree falls on you, there will be no one there to hear it fall, or to save you.  Postscript:  I still don't understand the theory of relativity.

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