Monday, February 15, 2010

“And/or” and the (un)lawyerly practice of weaseling

2nd in the and/or series

And/or isn't always a weasel word ["a word that makes one's views equivocal, misleading, or confusing"], but even when not, it conveys a weaseling, equivocal style. You might think when an obfuscator uses and/or, he is trying to imply he carries the lighter burden of or when and is required, but that isn't how this obfuscation typically works. The obfuscatory use of and/or usually involves substituting it for or when the conjunction means exclusive or. The purpose isn't to confuse the reader about the conjunction required—for that, a particularly stupid reader would be required—but to distract from the disjuncts' exclusivity, which is for another reason embarrassing to the writer's argument. A simple example, just to convey the idea, is the advice "at the dead end, turn right and/or left," which makes the absurdity obvious to convey the method of misdirection. Directing someone to go right or left at a dead end is uninformative, and "turn right and/or left" denies their exhaustive character, the source of their ridiculousness. The following realistic example of weaseling is taken from a recent court opinion. Judge Armendariz states for the California State Bar Court:
Respondent knew that 'Bole' did not stand for the proposition he claimed and/or he knew it was not a reliable precedent.
"Nonprecedential" means the case doesn't deal with the subject claimed; "unreliable" means other cases supersede Bole. Either Respondent knowingly cited a nonprecedential case, in which case whether it was reliably precedential doesn't pertain; or Respondent cited a case he knew was unreliably precedential, in which case the court must concede that the case is colorably precedential. Here, the mutually exclusive character of the disjuncts embarrasses the court's argument because the court would have to know whether the case is nonprecedential or unreliable to credibly charge Respondent with either. The court's weaseling here is sly, as is clear if the reader reviews the incident. The trial court in which Respondent had cited Bole had claimed it stood for something else; the State Bar Court couldn't support the judge's contention but could justify the alternative characterization "unreliable," although the trial court hadn't confronted Respondent with it. The court's weaseling occurs because neither disjunct is satisfied, the and/or serving to muddy readers' understanding of the terms. If Judge Armendariz wrote, "Respondent knew that Bole did not stand for the proposition he claimed or he knew it was not a reliable precedent," she would evoke the reader's criticalness.

When and/or doesn't directly serve as weaseling's instrument, the construction conveys an attitude tolerant of weaseling which at the least shares with weaseling an indifference to precision, an attitude that cries, "Why admit anything more than I'm required to?" even if the lawyer can avoid admitting an immaterial truth only by equivocation. And/or resembles in this respect other weaseling expressions, such as routine replacement of precise dates in pleadings with "on or around" or "1 to 15 inclusive" for an exhibit list, although 1 to 15 already implies 15's inclusion.

Although most instances of and/or use are not directly obfuscatory like Judge Armendariz's Bole finding, they help camouflage instances that directly obfuscate. The same court that made the overt obfuscation included the phrase and/or ten times in the 48-page opinion, and the opinion can supply examples for the other types of and/or misuse, which camouflaged the insidious Bole-related misuse.

The remaining categories are substituting and/or for and substituting it for or. First, and/or for and:

[B]y repeatedly making speaking objections, gratuitous comments, asking the identical or near identical question to questions that had been asked and/or objections sustained to and arguing in front of both juries…
The charges assert that Respondent supposedly did all these things repeatedly. Hedging with or doesn't fool anyone and isn't intended to, at least not directly.

The court substitutes and/or where or is correct in this example:
He repeatedly badgered, berated, screamed, yelled, and/or raised his tone at witnesses and the court, despite court warnings, admonitions, and orders not to do this and instructions to calm down and act professionally.
"Yelled and raised his voice" is ludicrously redundant; or suffices.

Besides camouflaging obfuscatory weaseling, the habitual form of lawyerly weaseling comes from the lawyer's distrust of his intuitions concerning the contextual determination of or's meaning. The rules may be hard to specify, but that doesn't mean the distinction is subtle. Whether the meaning is inclusive or exclusive, seldom will readers doubt the contextually determined meaning of or.

Friday, February 5, 2010

The best that can be said for ‘and/or’: It isn't necessarily stupid

Experts agree legal writers should avoid the and/or construction, but a controversy has arisen over whether using it is merely ill advised or worse, "just plain dumb." The underlying issue concerns the meaning of the disjunctive-conjunction or, and two theories contend. While or's semantic sensitivity to context is unmistakable, some disputants maintain that or's default meaning, its meaning when context is neutral, is inclusive, so a or b is true is itself true if a is true, b, is true, or both are true. In contrast, the simultaneous truth of a and b in an exclusive disjunction falsifies it if a or b is true. If or is an inclusive disjunction, then the and/or construction is "just plain dumb": the unenhanced or already means and/or. Allowing for exceptions, linguist Geoffrey Pullum explains the and/or construction uses overstatement to exaggerate the inclusiveness ordinary or already possesses, but in legal writing, using hyperbole is perhaps just another route to being "just plain dumb."

Pullum argues by appeal to compelling examples; his most persuasive example is:
Is Gordon Brown or the Pope in the U.S. today?
Knowing that the Pope is in the country, one answers "yes," without worrying that Gordon Brown is visiting. The visitors' arbitrary identities seem to preclude contextual influence, allowing or's default meaning to emerge, but context is only weak, not completely absent. Despite the unrelatedness of the two actors, the question's implied or habitual context involves summoning one of the actors, and it's harder to imagine a situation where you would need to know that either Gordon Brown or the Pope but not both is in the U.S.

If the Gordon Brown example offers Pullum some comfort, contrary examples abound. Here's one from the label on a tomatoes' package supporting the Pullum-rejected exclusive account of or:
To maintain freshness coated with vegetable, petroleum, beeswax and/or shellac-based wax or resin.
The label includes both or and and/or because "beeswax or shellac-based wax or resin" reads exclusively. Without the inclusive construction and/or, the label would be inaccurate if the tomatoes' coating contained both ingredients: beeswax and shellac-based wax; or beeswax and resin.

This example, admittedly, doesn't conclusively show or is exclusive, as context might yet intrude; the predominance of subtle contextual influences brings default meaning itself into question. Rejecting default meaning altogether still rebuts and/or's inherent stupidity: and/or avoids being "just plain dumb" whenever the construction avoids redundancy. The examples don't settle or's meaning, but they rebut a strong inclusive default meaning as Pullum proposes, in which context effects are due only to logic, not to habit.

Three facts of usage and native-speaker's intuition demonstrate a (weak) presumption favoring an exclusive-disjunction interpretation for or: 1) English dictionaries universally define or as exclusive by describing its conjuncts as "alternatives"; 2) while and/or is indisputably an inclusive disjunction, English has no artificial exclusive disjunctions, as we might expect as compensation if or, unenhanced, were inclusive; and 3) as in elementary mathematical-logic classes, where the teacher must emphasize or's subject-specific inclusive meaning to dissuade students from importing its natural exclusive meaning, speakers' intuitions lead them to interpret or as exclusive.

Judicious use of and/or isn't stupid and results in no worse than an uneuphonious and slightly confusing product, each because the construction has no counterpart in ordinary speech, but writers of and/or seldom use it judiciously. The next entry will discuss the main source of and/or excess, the writing defect weaseling.