Implied Parentheses:

By accident, I ran across a court order (see 337 F.3d at 1024) that the following footnote be added to an earlier opinion:

We do not confront here a claim of failure to exercise discretion or manifest injustice.

No-one will be actually confused by this, of course; but at least on first reading, it might strike people the wrong way, as "We do not confront here a claim of failure to exercise (discretion or manifest injustice)" (borrowing the mathematical and computer language meaning of parentheses). The very absurdity of "failure to exercise ... manifest injustice" will prevent actual confusion, but it might cause an odd reaction at first. It might have been better to say,

We do not confront here a claim of failure to exercise discretion or of manifest injustice.

Alternatively, if the order of the options wasn't rhetorically significant, the court could have said,

We do not confront here a claim of manifest injustice or failure to exercise discretion.

But this too might be a bit ambiguous (though perhaps not relevantly so), since it might be interpreted either as

We do not confront here a claim of (manifest injustice or failure to exercise discretion).

or as

We do not confront here (a claim of manifest injustice) or (failure to exercise discretion).

jp2 (mail):
Funny you should mention this -- just today I did a double-take when I read in a brief:

Defendants must demonstrate the reasonableness of their conduct, not simply a lack of gross negligence or good faith.

My first thought was that the writer meant to say "bad faith" and wrote "good faith" by mistake. Then I realized he meant "not simply [1] a lack of gross negligence or [2] good faith."
2.14.2007 4:52pm
PGofHSM (mail) (www):
I used to think of writing in more mathematical terms when I was in elementary school and diagramming sentences, but I hadn't thought of using parentheses in that grouping way again until law school and having to use them for Lexis searches.

However, I thought the misinterpretation was more likely to be "We do not confront here a claim of failure to exercise discretion or to manifest injustice," i.e. using "manifest" as a verb rather than an adjective.
2.14.2007 4:59pm
Actually, the other reading I thought of was "failure to manifest injustice", since "manifest" is a verb too.
2.14.2007 5:12pm
(Oops, I see PGofHSM already said that.)
2.14.2007 5:16pm
This sounds like a problem discussed in Language Log today, in a posting entitled "No FLoP from Foggo." Both this example and the examples in Language Log involve problems with coordination. The Language Log piece is about an email quoted in the indictment of Brent Wilkes and Kyle Foggo.
2.14.2007 5:56pm
Here we confront neither f.t.e.d. nor a claim of m.i.

OR, depending on what you mean to mean

Here we confront a claim neither of m.i. nor of f.t.e.d.

I claim that both these statements are unambiguous. Have I missed something?
2.14.2007 6:14pm
FXK (mail):
Mathematical Notation > English
2.14.2007 7:10pm
Mark Field (mail):
Can I add to this a pet peeve regarding serial commas? Contemporary practice seems to leave out the last comma in a series, the one before the "and". There are times when this leads to a similar sort of ambiguity as you noted here.
2.14.2007 7:15pm
Sasha Volokh (mail) (www):
It's actually "manifest" used as a noun -- manifest injustice is when you don't exercise fairness in listing what sort of hazardous cargo you're carrying in your truck.
2.14.2007 7:24pm
I think one of the roots of this oft recurring problem is a fetish for brevity. People set a maximum limit for a brief (or other document) and try to cram as much information as possible into that word count. "If it's too long, people won't read it!"

When you combine a brevity fetish with sloppiness, you end up with sentences that are frustratingly ambiguous to all but the writer himself. A few extra articles, prepositions, and such, combined with a use of the Oxford comma, as mentioned above, may make your papers a bit longer. But that marginal length will often make the paper more readable.

I believe that in most cases, an effective argument should be effortless to the reader. Fifteen pages of clear prose is much easier and quicker to read than twelve pages of frustrating ambiguity.
2.14.2007 7:40pm
Mitch Stoltz (mail):
Reminds me of a sentence I've seen a few times in opinions, something like "we hereby adopt the clearly erroneous standard."
2.14.2007 7:47pm
Guest J (mail):
I saw this and immediately thought the sentence should have used "nor". I see dearieme has beaten me to the punch.

Familiarity with "nor" is sadly in decline, but sometimes it is absolutely the crucial word, as in this case.
2.14.2007 7:48pm
PDXLawyer (mail):
Short, declarative sentences are good.

I've used the multiple "of" solution before, because it is both unambiguous and concise. Unfortunately, many people have a hard time absorbing it (usually thinking it is a typo). Most of the bench and bar aren't that up on formal logic.

As to this specific problem, this message does not require a complex sentence structure. My preferred solution would be:

We do not confront here a claim of failure to exercise discretion. Nor is there a claim of manifest injustice.

True, more sentences usually mean more words. On the other hand, packing too much logical content into a short text often causes people's eyes to glaze over. Math / logic and language are different enterprises. An eloquent peice or writing is frequently rather inelegant, if thought of in strictly logical/mathmatical terms. I'm an engineer, and I learned the hard way that good computer code and a good brief are vastly different things.

If you want absolute proof of this, try construing a few patent claims. The convention in patent claims is to use language in a concisely logical way. The result is something very difficult indeed to understand.
2.14.2007 7:52pm
Bill Woods (mail):
"We do not confront here a claim of failure to exercise discretion or manifest injustice."

Isn't the simplest fix to stick in another word, to highlight the parallelism?

'We do not confront here a claim of failure to exercise discretion or of manifest injustice.'
2.14.2007 9:02pm
bornyesterday (mail) (www):
Dearieme wins. And gets added points for clarity and strength of presentation because the use of "we confront" as opposed to "we do not confront" is more active.
2.14.2007 9:06pm
JStory (mail):
Actually I think if the sentence were reworded to be more parallel in its prepositional phrases most of the confusion could be eliminated.

We do not confront here a claim of an abuse of discretion or of manifest injustice.
2.14.2007 10:31pm
Jstory - an abuse of manifest injustice?
2.15.2007 9:23am
lucia (mail) (www):
I like PDXLawyer's solution best.

Dearieme's solution is ok, but I think moving the "here" to the beginning of the sentences changes the emphasis. It tends to focus the mind of the idea of "Here" instead of "We find no". I guess that would be ok if that's what the authors wish to emphasize, but I bet they don't.
2.15.2007 10:22am
I thought of "We here confront...." but it seemed to me to carry distracting echoes of Lincoln and his era. "We confront here..." is pleasantly low-key though.
2.15.2007 10:46am
Problem. "We do not confront here a claim of failure to exercise discretion". Well, if that claim has been made, why not confront it? Or do they mean to mean that no such claim was advanced? Anyway, why are they in the confronting business rather than the judging biz?

The claim before us is neither a claim of.... nor of....
2.15.2007 10:51am
Alex650 (mail):
I agree with JP2 and PGofHSM: mathematical/logical notation comes in very handy with grammar. For example, which of the following is correct:
(1) Give this to whoever is in charge.
(2) Give this to whomever is in charge.

The answer is (1), and parenthesis help reveal why. Without the "is in charge" the sentence would be "Give this to whomever," in which case the word takes the objective form. The real sentence, however, can be viewed like this:
Give this to (whoever is in charge). The entire parenthetical phrase is the object of the sentence, and within the phrase "whoever" is subjective.

By the same logic, counterintuitively, "To whom it may concern" is correct, but b/c not because of the "to" -- parenthesis show that the sentence is "To (whom is may concern)" -- or "it may concern whom" -- which is why the objective "whom" is correct.

Basic point: parentheses are fun, especially for grammar!
2.15.2007 11:03am
Alex650 (mail):
Parentheses are less useful for catching typos, it seems -- my apologies.
2.15.2007 11:06am
Porkchop (mail):

We do not confront here a claim of failure to exercise discretion or manifest injustice.

Poorly written, but, really, it's not that hard to fix:

"We do not confront here a claim of manifest injustice or [of] failure to exercise discretion."

The only problem is confusion over which preposition "manifest injustice" should follow. The ambiguity is easily cured by inverting the order of the "non-claims." No parentheses or mathematical analysis required -- just a red pen or a word processor.
2.15.2007 1:22pm
Jonathan Burdick (www):
All of which dovetails with that question making the rounds awhile back about editing one's blog posts after publishing 'em. Myself, if it hasn't been "too terribly long" since the initial publication, I just edit the rare post that upon re-reading suggests that disambiguation is called for (or has a typo, e.g.). Otherwise, I make the correction and then add an update that I edited the original post, as per what I fondly think of as [my] "Orin Kerr Update Protocol".

How long is "too terribly long"? Why, that's proprietary information, of course. Surprised you'd ask ...
2.17.2007 2:57am