Aug. 7, 2019
Don’t you think it’s time?
Are we in the midst of a similar trend in formal legal writing, relaxing the use of contractions? Are the few judicial contraction-users the “casual Friday” that will one day loosen the profession’s linguistic norms? Or will the majority of judicial writers hold the Scalia line, reproaching contractions as they would actual khakis in the courtroom?
Former Justice Antonin Scalia, widely regarded as one of the best judicial writers of our time, had a strong view about the use of contractions in legal briefs and judicial opinions.
He didn't like them, didn't at all.
Indeed, according to his occasional co-author Brian A. Garner, one of the duo's books was almost cancelled because of their passionate dispute about the propriety of contractions. See Alex Carp, "Writing with Antonin Scalia, Grammar Nerd," The New Yorker (July 16, 2012).
Instead, the authors left their conflict unresolved, articulating their divergent views in the book.
To Justice Scalia, contractions were simply not appropriate for formal judicial writing. As he put it: "Formality bespeaks dignity."
But Garner maintains that contractions should be used when it is natural to do so. As he wrote in "Garner's Dictionary of Legal Usage" (3d ed. 2011): "Here's the test: If you would say it as a contraction, write it that way. If you wouldn't, then don't."
In principle, I come down on Garner's side. Writing of all types should be accessible, and in natural English if possible. Contractions perhaps were associated with the uneducated in 1876, when Mark Twain filled "Tom Sawyer" with spoken dialect replete with them. But contractions now are ubiquitous among American English speakers. They don't stand out as substandard in most contexts.
I use contractions in articles like this one without a second thought. And no reader would care, or even notice.
But that doesn't mean that I have used them in briefs when I worked as an appellate lawyer, nor in opinions as a justice on our state Court of Appeal.
Why not? For the same reason I would wear a suit-and-tie to most work events, even if more casual dress might be appropriate: You can't go wrong being formal. As long as there remain judges with Scalia's view, why would a lawyer want to risk upsetting them with her wording? If a justice has colleagues or readers who think contractions inappropriate, why risk alienating them?
But, in 2019, how many readers would actually be put off by contractions in formal legal writing? This is an empirical question to which I don't know the answer. But there is a certain point where enough people are wearing informal attire to the bar association happy hour that everyone recognizes our sartorial culture has changed. At that point, no one need feel compelled to wear the attire of a generation ago. Indeed, at some point, overdressing might even seem pretentious and out-of-place.
For this reason, I have been watching with interest as Justice Scalia's successor, Justice Neil Gorsuch, has been showing up to the Supreme Court in grammatical khakis.
To be clear, I don't mean his attire -- just his contractions.
To take one example, I searched Justice Gorsuch's recent majority opinion in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), for the words "don't," "doesn't," "isn't," or "can't." I found 11 uses of those four contractions. (For instance: "The dissenters don't address this point."). This is consistent with his other opinions: New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019), contains nine of these contractions. His dissent in Sveen v. Melin, 138 S. Ct. 1815 (2019), has 13.
Justice Elena Kagan also has donned informal grammatical attire. Curiously though, she does so nearly exclusively when writing separately, rather than for a court majority. See, e.g., Janus v. American Federation of State, County, and Mun. Employees, Council 31, 138 S. Ct. 2448, 2489 (2018) (Kagan, J., dissenting), which contains five of the above contractions, such as "if the union doesn't have enough [money], it can't be an effective employee representative." Some judicial authors may believe that they are more free to use an informal style when writing opinions expressing a personal view, rather than that of their court.
The other U.S. Supreme Court justices avoid contractions, except on rare occasions. For instance, Justice Stephen Breyer let his hair down with "two wrongs don't make a right" as the sole contraction in his dissent in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954, 973 (2017) (Breyer, J., dissenting). Perhaps this was a conscious attempt to be colloquial, as he was employing a popular proverb in the manner it is usually spoken.
On our state's Supreme Court, we lack a contraction connoisseur, though there have been occasional uses. See Hassell v. Bird, 5 Cal. 5th 522, 580 (2018) (Cuéllar, J., dissenting) ("the plurality's conclusion doesn't follow from its premise").
Some intrepid California Court of Appeal justices have let loose with contractions when writing separately from their panel's majority. See, e.g., In re Harley C., 2019 WL 3162457 (Segal, J., concurring) ("I am not so sure this is a local rule; but if it is, it isn't much of one."); People v. Koback, 36 Cal. App. 5th 912 (2019) (Slough, J., dissenting) ("One doesn't need a degree in statistics to know this is an incorrect definition of likely.")
Justice William Bedsworth, an acclaimed writer who this May won a journalism award for producing columns voted among the best writing in California, doesn't seem to have a problem using contractions even when writing for a majority. See People v. Jackson, 8 Cal. App. 5th 1310, 1315 (2017) ("We don't see it that way."; "That doesn't mean [the judge] had carte blanche....").
But our federal appellate judges in Southern California may be the most contraction-friendly judicial group around. Judges Jacquelyn Nguyen, Paul J. Watford and Milan D. Smith Jr. of the 9th U.S. Circuit Court of Appeals, as well as some of their brethren, have been freely using contractions for years. Among numerous examples: Sali v. Corona Regional Medical Center, 884 F.3d 1218, 1224 (2018) (Nguyen, J.) ("But it doesn't demand the impossible."); Volpicelli v. United States, 777 F.3d 1042, 1045 (2015) (Watford, J.) ("After carefully reviewing the cases...we don't see anything in them..."); In re HP Inkjet Printer Litigation, 716 F.3d 1173, 1182 (2013) (Smith, J.) ("Plaintiffs attorneys don't get paid simply for working; they get paid for obtaining results.")
It is well-known that the use of language changes over time, however slowly. As to American writing in general, University of Pennsylvania linguistics professor Mark Liberman has established that over the last century or two, the use of each of 14 contractions eliminating the word "not" (isn't, weren't, hadn't, etc.) has steadily increased. See "Why Definiteness is Decreasing, Part 1," using data from the Corpus of Contemporary American English housed at Brigham Young University.
Are we in the midst of a similar trend in formal legal writing, relaxing the use of contractions? Are the few judicial contraction-users the "casual Friday" that will one day loosen the profession's linguistic norms? Or will the majority of judicial writers hold the Scalia line, reproaching contractions as they would actual khakis in the courtroom?
We will never know precisely how Justice Scalia would feel about his seat being occupied by the most prominent contraction-producer in the judiciary.
But it may be that some point in his tenure, Justice Gorsuch's use of contractions will not stand out as much as it does today.
Ain't that interesting?