“If I had a nickel for every time a Supreme Court used a babysitter hypothetical to resolve a statutory interpretation question, I’d have two nickels. Which isn’t a lot but it’s weird that it happened twice.”
I've long been fascinated by the waxing and waning of "run-of-the-mill", "mine-run", and "kiln-run". I thought at first "mine-run" was a way to out-cool the more standard "run-of-the-mill" and (if memory serves) a search of the U.S. Reports mostly backs that up. However, "mine-run" does have its own history, going back at least a century. I guess ordinary ore from a mine was called "mine-run" and that caught on as a metaphor. On a broader point, I suspect a lot of the examples you're asking us to nominate here *gain* in popularity when someone like a justice or an SG uses them, but they likely only catch on if they have some actual older use, just not one that was all that common. If they're completely new they likely die a quick death as they haven't been tested in actual writing/speaking.
It's fun to carp about these legal writing odds and ends. Far more annoying to my mind, though, are pop culture references, as judges try (typically without success) to show they are hip, not the stern, gray-haired fuddy-duddies people imagine. Even worse (though you don't see this from the Supreme Court crowd) are the occasional opinions written in verse. Spare me.
Judges don't need to be cool or clever. Clear is good enough. Thorough is nice, too. Oh, and right, at least occasionally. That's an excellent quality. If a judge manages to write a clear, thorough opinion that also happens to reach the right result, I'll easily forgive the judge's starting a paragraph with: "To begin."
Not exactly responsive to your post, but related. I’ve noticed several circuit judges using contractions more frequently (Judge Thapar in the Sixth Circuit comes to mind, but there are others). Admittedly, I think it can make for an easier reading experience, especially when the area of law is quite technical. But sometimes I can’t help but feel like it’s a bit condescending to the gravity of certain decisions, especially in combination with some of the writing tics discussed in the post and comments.
This part of Richard's post is important: "we are engaged in a social practice."
You want to give social cues so people like you. Example - "orthogonal." Justice Scalia used it at argument, then Justice Kagan. It's not an evocative word and yet pretty soon using "orthogonal" signals you are part of the inner circle. (Stuff like this happens in podcast discourse all the time).
"Not so" started off as a striking phrase, but even if lots of people use it, it remains good writing-- just in a different way. It started as both a dramatic flourish and a clear, short, transition. If you read it a lot, it loses the drama, but remains a clear, short, anglo-saxon, transition. In fact, for some purposes, that makes it better, because often (usually?) the writer doesn't want the drama, because it distracts. He just wants a transition.
Unfortunately my attempt at "This, but uncritically" has not gotten any takers.
"And there is more." Preferably as a paragraph opener.
Why not go full-on Ron Popeil: “But wait, there’s more!”
So too here.
Yup. Always hated that one.
100%. Sort of cringey to see all the fumbled attempts at imitating Roberts after the love fest over his brief in Alaska v EPA.
“If I had a nickel for every time a Supreme Court used a babysitter hypothetical to resolve a statutory interpretation question, I’d have two nickels. Which isn’t a lot but it’s weird that it happened twice.”
"We disagree."
I've long been fascinated by the waxing and waning of "run-of-the-mill", "mine-run", and "kiln-run". I thought at first "mine-run" was a way to out-cool the more standard "run-of-the-mill" and (if memory serves) a search of the U.S. Reports mostly backs that up. However, "mine-run" does have its own history, going back at least a century. I guess ordinary ore from a mine was called "mine-run" and that caught on as a metaphor. On a broader point, I suspect a lot of the examples you're asking us to nominate here *gain* in popularity when someone like a justice or an SG uses them, but they likely only catch on if they have some actual older use, just not one that was all that common. If they're completely new they likely die a quick death as they haven't been tested in actual writing/speaking.
Refuting an argument in one paragraph, then starting the next with "So much for [that argument]."
It's fun to carp about these legal writing odds and ends. Far more annoying to my mind, though, are pop culture references, as judges try (typically without success) to show they are hip, not the stern, gray-haired fuddy-duddies people imagine. Even worse (though you don't see this from the Supreme Court crowd) are the occasional opinions written in verse. Spare me.
Judges don't need to be cool or clever. Clear is good enough. Thorough is nice, too. Oh, and right, at least occasionally. That's an excellent quality. If a judge manages to write a clear, thorough opinion that also happens to reach the right result, I'll easily forgive the judge's starting a paragraph with: "To begin."
Not exactly responsive to your post, but related. I’ve noticed several circuit judges using contractions more frequently (Judge Thapar in the Sixth Circuit comes to mind, but there are others). Admittedly, I think it can make for an easier reading experience, especially when the area of law is quite technical. But sometimes I can’t help but feel like it’s a bit condescending to the gravity of certain decisions, especially in combination with some of the writing tics discussed in the post and comments.
Was it Posner who popularized contractions?
This part of Richard's post is important: "we are engaged in a social practice."
You want to give social cues so people like you. Example - "orthogonal." Justice Scalia used it at argument, then Justice Kagan. It's not an evocative word and yet pretty soon using "orthogonal" signals you are part of the inner circle. (Stuff like this happens in podcast discourse all the time).
Starting a sentence with “Consider . . .”
"Not so" started off as a striking phrase, but even if lots of people use it, it remains good writing-- just in a different way. It started as both a dramatic flourish and a clear, short, transition. If you read it a lot, it loses the drama, but remains a clear, short, anglo-saxon, transition. In fact, for some purposes, that makes it better, because often (usually?) the writer doesn't want the drama, because it distracts. He just wants a transition.
I don’t understand the hubbub over “To begin.” Seems like it comes right out of Bryan Garner’s transitional-phrase playbook.