Wednesday, May 7, 2008

Scalia, Garner don't / do not always agree

In a recent post to the LRWProf listserv concerning the new book on persuasion by co-authors Bryan Garner and Justice Antonin Scalia, Appalachian Law School Prof. Michael Loudenslager notes their different points of view about Garner's recommended practice of putting citations into footnotes. Turns out that there are other things about which they disagree . . . .

In a C-Span "Q & A" interview with Brian Lamb just a few days ago, Justice Scalia responded to a question about the degree of formality lawyers should use in addressing the Court. Scalia remarked,

"That’s one of the issues that my co-author and I go at in the book. He recommends, for example, that in the briefs to the court, you use contractions. Don’t, isn’t, aren’t, and so forth, whereas I think that’s a mistake. It is a formal setting. There is a formal English as opposed to an informal English. You wouldn’t expect the Gettysburg Address to have said, you know, we can’t dedicate, we can’t consecrate, we can’t hollow this ground. I mean, you know, we cannot dedicate, we cannot – the formality of not using contractions. I think that’s proper in a court. I don’t expect the language in the court, neither at oral argument nor in the briefs, to be as familiar as the language at the local bar. I mean, it’s a different setting."

Scalia_bobblehead As for why the justice is speaking so much in public these days? "I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not. "


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Yet, here is Garner on the use of contractions in The Elements of Legal Style at 81 (1991): "Contractions are usually out of place in legal writing. Instead of can't, prefer cannot; instead of won't, will not; and so forth. The worst contractions in legal prose are casualisms such as would've and should've. (These contractions have led to such illeteracies as should of done.) Common contractions such as hasn't and didn't may be perfectly appropriate in correspondence, but not in court papers, legal instruments, or other legal writing."

Posted by: Michael Klise | Jul 24, 2008 8:20:19 AM

No lawyer who decides to use contractions goes back. For analysis, see

Posted by: Stephen R. Diamond | Nov 3, 2008 12:39:03 PM

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