Issue Proliferation Exemplified

Gilmore v. Ashcroft is a high profile civil-liberties case, challenging parts of the Patriot Act's surveillance system. John Gilmore refused to submit to a search, required in the alternative to showing personal identification. What particularly disturbed Gilmore was the secrecy surrounding the legal requirements. Only unpublished Government directives authorized the ID requirement and its alternative.

Gilmore's brief to the 9th Circuit begins by stating these issues:

1. Does requiring a passenger to show a government-issued proof of identity in order to fly violate that passenger's right to travel?
2. Does requiring a passenger to show ID in order to fly violate that passenger's rights of assembly and redress?
3. Does requiring a passenger to show ID in order to fly violate that passenger's rights to be free from unseasonable searches and seizures?
4. Does forcing a passenger to choose between producing ID and being subjected to a more extensive search in order to travel violate the doctrine of unconstitutional conditions?
5. Does the secrecy of the Government's requirement that a passenger show ID in order to fly violate that passenger's right to due process?
6. Does Mr. Gilmore have standing to address the reasons for the ID requirement?
7. Does the District Court have jurisdiction to hear challenges to actions of the Transportation Security Administration and the Federal Aviation Administration as applied?
8. Did the District Court err in denying Mr. Gilmore's October 8, 2003 motion for request for judicial notice?
9. Did the District Court err in denying Mr. Gilmore leave to amend his complaint?

Although these issues may appear independent, the state of the law ties them tightly together. (See Issue Proliferation, ¶ 2.") Deprivation of a single mode of transportation, settled law holds, does not violate any fundamental rights. Only impermissible secret regulation of Gilmore's access to transportation could have infringed Gilmore's right to travel. Settled law also holds that if the subject is not punished for refusing a voluntary search, the 4th Amendment does not prohibit it. Gilmore's right to be free of unreasonable search was not, consequently, infringed by the contingency between acquiescing to the search and boarding a plane. If Gilmore's right to be free of search was implicated, it was because the search, based on secret law, was conducted without due process. Gilmore should have confined his brief to the single substantive issue that secret laws violate due process, because he could prevail on the other claims only by prevailing against secrecy. Gilmore would receive no additional relief, moreover, for enumerating additional bases sustaining the same rights.

Gilmore's approach to the procedural issues is also mistaken, for a different reason, as Gilmore should have ignored most of the substantive issues, but he had to face the procedural issues. He should have de-emphasized them, however, treating the procedural issues combined as a single sub-issue. The Government raised the procedural issues as obstacles to plaintiff Gilmore's substantive litigation. To the extent the court focuses on the procedural issues, the plaintiff, whom these issues bar, is on the road to losing.

The survival of secret federal laws is hard to imagine, when able counsel attacks them in a deep brief, comprehensive because limited to the single real issue. Where Gilmore raised nine issues on appeal, I would have raised one.

Mysteries of the Comma

Heavy and light punctuation are distinguished mainly by practices regarding nonrestrictive modifiers, which heavy punctuation sets off by commas and light punctuation omits, so that with light punctuation, many nonrestrictive modifiers are punctuated the same way as restrictive. As long as the pattern is consistent, authors commit no outright error by populating documents with a greater or lesser comma density. While light punctuation is acceptable, even today's trend in fiction, better legal-writing practice affords less freedom. We can see why by asking what trade-offs characterize light and heavy punctuation practices. Heavy comma usage improves Clarity but impairs Concision, since Concision stands for less language, not only fewer words. Concision is information compression serving efficient comprehension, and a comma inserted sacrifices efficiency when the added punctuation doesn't change the message imparted. This trade-off of Clarity for Concision means the recipient spends slightly more time reading a heavily punctuated document but, receiving more guidance from the author, is less prone to comprehension error and confusion.

Despite the greater Clarity heavy punctuation supplies, lawyers usually use light punctuation. Distinguishing restrictive and nonrestrictive modifiers is one of the harder grammatical discriminations. Cognitive interference explains what makes the distinction difficult, even for lawyers. The restrictiveness of a modifier is a syntactic classification, but it parallels a similar dimension of meaning. Degree of restrictiveness in syntax comes in only two kinds, restrictive and nonrestrictive, whereas restrictiveness in the world is infinitely varied. Restrictiveness "as a matter of law," that is, syntactic restrictiveness, contrasts with restrictiveness "as a question of fact,” semantic restrictiveness. The continuous dimension of actual restrictiveness cognitively conflicts and interferes with the categorical grammatical distinction between restrictive and nonrestrictive modifiers. Trial attorneys, who dwell mostly in the world of fact, prefer writing with light punctuation, although they would rather read a heavily punctuated legal document. [See also "The Underestimated Comma."]

Sentence Length

Conventional advice to legal writers underplays the advantages of complex sentences. Well-written complex sentences are not only more Euphonious than strings of short, choppy, simple ones but also afford additional hierarchical structure. The subordinate clauses of complex sentences serve a function analogous to footnotes, but unlike footnotes, subordinate clauses are not subtextual, as they do not incorporate matter less important than ordinary text, instead structuring the text itself. Complex sentences convey information about the relationship between clauses. Using simple sentences instead means either omitting the relational information, undermining Clarity, or including the relational matter discursively, undermining Concision.

The advice to use short and simple sentences includes particles of truth. One is that interclause relationships have diminished importance for some legal-writing purposes. Where the writer refers to clearly dispositive authority in a brief supporting a procedural motion, too much attention to interrelations may distract rather than clarify. Another particle of truth in the short-sentence advice is that shortening and simplifying sentence structure will improve many lawyers' writing. Short, simple sentences, easier to write than long, complex ones, can help avoid excess verbiage, grammatical error, and unintelligibility.

For lawyers who are not writers by choice, shortening and simplifying sentences is often good practical advice, but you should expect more from a ghostwriter.