Tuesday, June 30, 2009

The semicolon and expectation’s equipoise

(Second and final entry in the semicolon series.)

Freer semicolon usage would help stem the promiscuous spread of artificial connectors, an assault on Concision. It would also contribute to Clarity by simplifying the representation of expectation neutrality, since and and but represent positive and negative expectancy of the following independent clause; but you may wonder when expectations are ever precisely neutral. The most important circumstance where a writer wants to represent the expectation as neutral occurs when the first clause expresses both a positive expectation and a negative expectation; the writer wants to avoid seeming to prejudge which is the stronger.

Oliver Wendell Holmes Jr. used the semicolon with great precision in his famous epigram, where the first clause expressed positive and negative expectations:

We do not inquire what the legislature meant; we ask only what the statute means.

Holmes renounces a purposivist approach to statutory interpretation but intends the implication to elicit surprise, greatest when a correlation obtains neither positively nor negatively. Holmes can create a sense of surprise because the renunciation carries two implications or expectancies: to interpret the text instead of interpreting the legislature's will or to renounce interpretation altogether. Logically, Holmes might have said instead: "We do not inquire what the legislature meant; we ask only what the legislature should have said."

A legal writer who uses semicolons with unusual effectiveness is Judge Richard A. Posner in The Economic Analysis of Law:

Generally, specific performance (ordering the party who breaks his contract to perform, on penalty of being held in contempt of court if he does not) will not be ordered as a remedy for breach of contract; the promisee will have to make do with damages, as suggested in the Holmes dictum quoted earlier.

(The Economic Analysis of Law, p. 117 [reference to Holmes coincidental].)

Here you can see the same pattern as in the quote from Holmes. The policy-of-denying-specific-performance clause activates two opposed expectancies: that another remedy will replace it or, alternatively, that none will; a different remedy or no remedy at all.

Monday, June 22, 2009

The underutilized semicolon

The semicolon, long in decline, may be in renewal, but it remains rare in its central use: replacing a comma and coordinating conjunction to unite two independent clauses. Current pedagogy tells us that the semicolon represents a bigger break than the conjunction and a smaller break than period. Could this account have caused the semicolon's decline, as we increasingly relied on written accounts for rules of mechanics? Can writers really classify the degree of logical connection of clauses into as many as three distinct categories? Most people have a hard enough time with only two. Plain-language exponents of short sentences instruct to break off a sentence when it becomes "too" long. Does anyone expect ordinary people or even skilled writers to divide degree of connection between connected thoughts into three neat, objective compartments? Even if the compartments existed in an objective sense, our mental powers may be too weak to distinguish them.

Guided by finding an interval greater than a comma but less than a period, writers reasonably choose not to apply voluntarily an intermediate standard as ephemeral as clear-and-convincing evidence, a standard so unintuitive people apply it only when serving on a jury under court order. If the semicolon had vitality before people relied so heavily on formal explication, people must have used a different criterion, either in addition to or in place of the intermediate-pause account. The real vitality of the semicolon — the best way to use it — depends on the need for a neutral connector rather than an intermediate pause because to show a connection between ideas facially we rely primarily on two coordinating conjunctions, but and and. But combines logical conjunction with contrariety. When you encounter but, the writer implies that hearing the first clause would ordinarily decrease your expectation of hearing the second. It seems natural to assume equivalence between and and logical conjunction: but stripped of its contrariety. So assumed, and is the generic connector, but the negative-expectation connector, and no positive-expectation connector exists. And may not be quite as positive as but is negative, but and is positive, not generic. Otherwise we would have to choose more carefully between and and but whenever but applies.

The semicolon is the language's neutral connector. Use it to connect ideas directly without implying either positive or negative expectation of what follows.

(Next entry I'll discuss the main circumstance in which expectation neutrality is important.)

Saturday, June 13, 2009

The art of exegesis and the demolition of unintelligible arguments

Sometimes a key argument in an opposing brief or a reviewable judicial opinion is largely unintelligible. One way of attacking such an argument is simply to assert its unintelligibility, but what if the court disagrees? A related disadvantage of simple assertion is that even if the entire argument is unintelligible, the parts may not be. When only the parts are intelligible, attorneys are likely to respond to the parts and ignore the unintelligible whole, an approach that doesn't remove the risk that the judge thinks the whole does have some meaning you missed.

When unintelligibility is found, usually the poor reasoning in the attempt at argument causes it. The lawyer responding to such an argument should not pass up the opportunity to demolish the poorly reasoned argument, a more effective response than declaring it unintelligible. Demolishing the argument discredits it and helps prevent its resurrection by improvement, and the judge will be more satisfied to have a sense of understanding the intended argument than merely dismissing it. When the judge's interpretation is overly charitable, you can supplant the judge's interpretation of the argument with a well-reasoned exegesis of an opponent's or lower court's argument .

The following argument comes from a judge's order in a State Bar discipline case where the prosecution is trying to disbar Philip E. Kay for disobedience to court orders. California State Bar cases are an excellent source of examples of terrible writing and even worse logic. The paragraphs I'll quote served to oppose Kay's claim that the State Bar withheld exculpatory evidence relevant to the statute of limitations. The evidence was from testimony in a federal suit on employment issues by a former state bar prosecutor (Konig). Here are the paragraphs:

In general, a prosecutor's opinions and impression of the case are not discoverable under the duty to disclose exculpatory evidence respondents assert that the Konig federal lawsuit contains conclusions of individual prosecutors that is at odds with the State Bar's position in this case, specifically referencing statements that judge Anello was a complaining witness in this case. However, the issue of whether Judge Anello was a complaining witness was not relevant in either the Konig federal or state cases. Moreover, witnesses must testify to facts and not their opinions or conclusions. Likewise, the use of slang is not evidence. Further, it is the opinion of the Office of the Chief Trial Counsel and not individual prosecutors that matters.

Even experts usually may not testify as to questions of law. That is, the opinion of a witness on a question of law is generally incompetent and inadmissable. Likewise, individual prosecutors cannot testify as to their individual opinions and conclusions regarding the law in a matter they were involved in; and respondents have no right to the prosecutors' individual opinions and conclusions. Nor are they relevant.

The bar-court's paragraphs are a mess, as revealed in the transitions, which strive to give the impression of logic while flouting it. Separate arguments are tied together with "however" and "moreover" without demonstrating the corresponding logical relationship between them. Since the paragraphs seem to express no unified argument, the confused argument tempts attorneys to ignore the argument as a whole and respond to each of the separate claims, such as the one claiming Judge Anello's status as a complaining witness wasn't relevant in the cases Kay wants to access. Kay could respond that Judge Anello's status as a complaining witness was relevant in the federal case because the district court stated in its conclusion that Anello was the complaining witness. I don't quarrel with that argument, but it isn't the central point to be made in response. To construct the most effective opposition, one should first figure out what the State Bar is really saying.

Helping the State Bar substitute a coherent meaning for the quoted confusion isn't doing the State Bar a favor. The State Bar applies rules prohibiting use of opinions of individual prosecutors to support conclusions about which opinion is correct, meaning if the State Bar officially characterized Judge Anello as not being a complaining witness, you cannot counterpose the opinion of specific prosecutors as authoritative or as true. The rules the State Bar tries to invoke are analogous to the hearsay rule, which states that second hand statements cannot serve as evidence for their truth. Similarly, the opinions of prosecutors cannot be invoked to prove their truth, but Kay didn't unseal the Konig records to prove that Judge Anello was a complaining witness because prosecutors said he was but to prove facts, such as his role in charging Kay, that implied he was. The same facts are circumstantial evidence that, contrary to what the State Bar claims, it regarded him as a complaining witness. The key to undermining the State Bar Court's argument as a whole is exhibiting its central mistake and analogizing it to a misapplication of the hearsay rule.

Tuesday, June 9, 2009

Comma Logic: "Parenthetic" versus "Nonrestrictive" Elements

One can never be too clear on the logic of the comma. Common grammar advice seems partly responsible for the confusion. Many guides state a rule that commas should set off parenthetic elements and a separate rule that commas set off nonrestrictive clauses and phrases. Occasionally the guides equate nonrestrictive and parenthetical; commonly, they imply that parenthetic elements are a subset of nonrestrictive elements, but although parenthetic elements and nonrestrictive elements overlap, even seeming to coincide, the distinction expresses different bases for categorization.

Restrictive versus nonrestrictive distinguishes categorically, based on the way a modifier affects the meaning of the term modified, the modified term either restricted in scope or not, but parenthesis means "a remark or passage that departs from the theme of a discourse: digression." (Merriam-Webster's definition 1(b); I exclude 1(a) because it incorporates punctuation, the explanandum.) Parenthesis is a continuous rather than categorical concept, and it describes the pragmatics of usage rather than its semantics. A parenthetic element is parenthetic because it digresses from the writer's main line of thought.

Following these definitions, restrictive parenthetic elements and nonrestrictive nonparenthetic elements are possible. A parenthetic element that is restrictive digresses from the writers thinking yet changes the meaning of the modified phrase. A non-parenthetic non-restrictive element follows the writer's train of thought but changes the meaning of the modified phrase. Nonrestrictive/parenthetic and restrictive/nonparenthetic tend to correspond, but the correlation is only partial.

So what are examples of restrictive elements that are parenthetic?
Forgetful doctors who were uninsured because they neglected to mail their premiums suffered as much as doctors who intentionally stopped their coverage.
Imagine this sentence appears in an article extolling the importance of obtaining insurance. The relative clause departs from the main line concerning objective importance by elaborating on a cause of failing to obtain insurance.

And nonrestrictive elements that aren't parenthetic?
In one case the doctor, who failed to procure medical-malpractice insurance, became indebted for three million dollars when he lost a lawsuit.
The relative clause is more related to the main thought of the article on insurance's importance because without it the insurance theme is absent from the sentence.

Some readers will disagree with the classification; parenthesis as concept is vague because the distinction is partly subjective. The subjectivity of parenthesis combines with the concept's fuzzy boundaries to disqualify parenthesis as a basis for punctuation.