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Say What?

South Carolina Appellate Law Blog reports:

Here's one for all those arguing for simplicity in legal writing. This is from Jamison v. Ford Motor Company [a South Carolina Court of Appeals decision]:

The cognoscenti of federal preemption jurisprudence bestow panoramic application so as to limit state common law tort actions. We decline to accept this broad-brush federal judicial barricade....

Importantly, scholars on basic conflict preemption principles inculcate in regard to the fundamental elixir of the rule when juxtaposing federal/state constitutional analysis. If a state statute, administrative rule, or common law cause of action conflicts with a federal statute, it is incontestable that the state law has no efficacy. It is pellucid that the Supremacy Clause does not bless unelected federal judges with carte blanche to utilize federal law as a conduit to impose their own views of tort law on the States. Assumptively, we recognize that common law tort actions are historically within the scope of the States' police powers and are safe from preemption by a federal statute unless Congress reveals a clear and manifest purpose to preempt....

Finally, we place our imprimatur and approbation upon the arbitraments of the circuit court in regard to ....

Ugh.

James S:
A meritorious manifestation of thesaurus abuse.
3.21.2007 8:27pm
TF:
I had no idea Judge Selya joined the South Carolina state bench.

I actually applaud the desire to keep our vocabulary rich, but poetry, not public record, is the place for that.
3.21.2007 8:29pm
great unknown (mail):
This language is designed to confound the Federal Judge to whom this will be appealed enough to delay the reversal until after the author has retired.
3.21.2007 8:37pm
anonVCfan:
Ugh, indeed.

TF, this is an order of magnitude worse than Judge Selya, and has none of the occasional redeeming virtues of Judge Selya's prose. This sounds like the work of a 1L who has not yet been smacked down by his legal writing instructor.
3.21.2007 8:41pm
elChato (mail):
Reminds me of the Oswald Bates character Damon Wayans used to play on "In Living Color"- the character was a prison inmate who was constantly using big words.
3.21.2007 8:48pm
Justin (mail):
That's terrible. I love it. I wonder if it is intentionally bad.
3.21.2007 8:49pm
Justin (mail):
PS The bluebooking and grammatical editing is equally awful.
3.21.2007 8:52pm
tmittz:
Pellucid? I consider myself to have an expansive vocabulary, and I have never heard of that one.
3.21.2007 9:00pm
Shelby (mail):
Bingo!
3.21.2007 9:01pm
Mike BUSL07 (mail):
Send 'em a free copy of Academic Legal Writing!
3.21.2007 9:32pm
neurodoc:
If there were a Bulwer-Lytton non-fiction contest, this one would be a serious contender for the prize.
3.21.2007 9:35pm
fishbane (mail):
I'm especially amused by the use of the word "pellucid" in the passage.
3.21.2007 9:53pm
Doug Sundseth (mail):
I'm surprised the author missed the opportunity to use "disambiguate". I'll not pass by the opportunity to at least mention the applicability of "blatherskite".
3.21.2007 10:06pm
dbm (mail):
I would be curious to read the briefs (well, not that curious, really). One possible explanation for this thesaurus abuse is that the briefs were full of ridiculous language, too (particularly the brief for the losing side), and the judge was just giving the attorneys a taste of their own medicine. Just a thought.
3.21.2007 10:10pm
Dave N (mail):
Whatever else this is, this decision is an example of bad writing at its worst. Where is Richard Posner when you need him?
3.21.2007 10:18pm
Anderson (mail):
FWIW, the arch language is deliberately put on, to condescendingly reject the apparent challenge by one party to the application of state (vs. federal) law.

One used to see more of this kind of thing, though I scarcely regret its decline.
3.21.2007 10:22pm
U.Va. 2L:
That reads like an essay I wrote in sixth grade, when I used the thesaurus every other word hoping to impress my English teacher. She flunked me and made me re-write it. Apparently this judge never had that experience.
3.21.2007 10:34pm
abean:
Actually... I think it reads quite vividly and smoothly. Though I must echo tmittz with regards to Pellucid. I can't comment on whether the words are accurate wrt to the law and the intent but it reads quite plausibly.

This does not on first glance appear to be fairly classed as "thesaurus abuse". Thesaurus abuse typically results in language which is wrong in the application while bearing a literal connection to the right words.

I am rather surprised that you Prof. are being so dogmatic with the less-is-more writing philosophy. I suggest you compare this text to some of the examples Orwell gives in his famous 'Politics and the English Language' essay. You will see that you are truly off-beat in judging this opinion so harshly.
3.21.2007 11:05pm
Dave Hardy (mail) (www):
Some of those words sound pretty dirty to me.

At least he didn't use "quintessential," which in my day the Justice Department considered mandatory, at least once per brief or motion.
3.21.2007 11:09pm
Brian G (mail) (www):
Probably some Yale law review clerk. That is the dumbest thing I have ever read, and I read dumb legal junk 8+ hours a day.
3.21.2007 11:10pm
Daniel Messing (mail):
"Society is part of the fatal flaw of language," says Sartre; however, according to Sargeant[2] , it is not so much society that is part of the fatal flaw of language, but rather the dialectic, and eventually the collapse, of society. Baudrillard promotes the use of predeconstructivist narrative to deconstruct hierarchy. Therefore, several constructivisms concerning not narrative, as Sartreist absurdity suggests, but subnarrative exist.

If one examines the dialectic paradigm of context, one is faced with a choice: either accept predeconstructivist narrative or conclude that the significance of the writer is social comment, given that the premise of postdialectic construction is invalid. De Selby[3] implies that we have to choose between predeconstructivist narrative and capitalist theory. Thus, the example of neotextual discourse which is a central theme of Fellini's La Dolce Vita is also evident in Amarcord, although in a more self-justifying sense.

"Sexual identity is used in the service of capitalism," says Baudrillard. The dialectic paradigm of context holds that the Constitution is capable of truth. In a sense, if predeconstructivist narrative holds, the works of Fellini are empowering.


--just a brief selection from the post-modernism generator
(http://www.elsewhere.org/pomo); perhaps there's one for 'real deep' legal writing for those what don't have the latin for the judgin'
3.21.2007 11:30pm
Alec (www):
Perhaps this was a comment on the troubled field of preemption (no pun intended).
3.21.2007 11:54pm
Truth Seeker:
A lawyer once ordered a book from my company with a letter that I saved and sent around as a joke (with his name blacked out). Instead of saying "Enclosed is $20 for a copy of your book..." he said something like "Enclosed herewith for your negotiation is my check number 1234 on First Midtown Bank, in the amount of U. S. Twenty ($20) Dollars for which I request that at your earliest convenience, by U. S. Mail you send to me care of this office a copy...." It was better (worse) than this. Sorry I don't have it handy.
3.22.2007 1:42am
wooga:
The only time I resort to using "fancy pants" language in pleadings is when I need to conserve space on the page and I can get the point across quicker with an obscure word. Otherwise it tends to make the writer look like an ass. "Looking like an ass" is the #1 reason an attorney will lose a motion at the civil trial level. Being wrong on the law falls somewhere around #4.
3.22.2007 3:10am
Kovarsky (mail):
i had no idea that guy perseus was a judge.
3.22.2007 3:21am
Kovarsky (mail):
wait i got perseus mixed up with michael b. sorry perseus!
3.22.2007 3:21am
bornyesterday (mail) (www):
I have a part time job helping prepare traffic reports for local radio stations.

This reminds me of the guy who calls in to let us know that he has not had "any encumbrances on [his] commute."

And though I'm not familiar with the legalese, am I correct in believing that the writer basically said, "The current experts do this...I think this is stupid because...This is what I think we should do..."?
3.22.2007 8:31am
elChato (mail):
This was a suit against Ford in South Carolina, yet it wasn't removed to federal court. Anyone have an idea why a defendant in that part of the world wouldn't remove a suit involving serious injuries?
3.22.2007 9:36am
magoo (mail):
Re: pellucid

On Lexis, "pellucid!" gets 1131 hits in the federal courts data base, including including 22 SCOTUS hits....often combined with "clear" as in pellucidly clear.

Extirpate!
3.22.2007 9:52am
Zathras (mail):
I don't see a judge's hand in any of this opinion. This opinion reeks of over-educated clerk/lazy judge syndrome.
3.22.2007 10:02am
magoo (mail):
Shouldn't "imprimatur and approbation" be "imprimatur and nihil obstat"?
3.22.2007 10:03am
Dennis Nolan (mail):
No, this wasn't written by a Yale Law clerk. Judge Ralph King Anderson does this sort of thing all the time. Worse, that prose style typically continues for many pages. One of my colleagues has nicknamed him "Judge Prolix."
3.22.2007 10:19am
markm (mail):
It's probably much too late to send that guy a copy of Strunk and White.
3.22.2007 10:23am
Anderson (mail):
Anyone have an idea why a defendant in that part of the world wouldn't remove a suit involving serious injuries?

Maybe their local counsel thought he was in good with the local judges.

I cherish the (true) tale of the attorney in my part of Mississippi who declined to remove a sex-discrimination case from a heavily minority county to federal court, b/c his reasoning was that African-Americans "know real discrimination when they see it, so they'll know this suit is bogus."

In the same case, after his first appearance before the court on some motion or other, the judge had his clerk call the Bar ass'n to make sure the guy really was a lawyer.
3.22.2007 10:23am
J.P. (mail):

Actually, Judge Dennis, who was the trial judge in that case, is as good as any of the three federal judges they would have pulled. The jury pool would have been the same. That having been said, they probably should have removed it, if possible.
3.22.2007 11:34am
eddie (mail):
"It is pellucid that the Supremacy Clause does not bless unelected federal judges with carte blanche [..]"

Clearly a typo. He surely meant to say "In Pellucidar the Supremacy Clause does not bless [..]". Judge Anderson is attempting to apply principles from international (inner-planetary, no less) law to the case at hand. I think he's just asking for a reversal on appeal.
3.22.2007 11:36am
elChato (mail):
Thank you J.P.!!! Now there is some interesting information-- they are in a judicial district where defendants sometimes don't bother removing large tort suits, if they draw the right judge. I'm surprised the federal jury pool is the same as the one for the state courts. I wonder if it's a tough place for a plaintiff's lawyer to make a living.
3.22.2007 11:41am
Hans Bader (mail):
The South Carolina courts rate low for quality in surveys such as the Chamber of Commerce's survey of lawyers.

They deserve a low rating. They are anti-business and manipulate and construe laws in odd ways that benefit trial lawyers and divorce lawyers.

They are not elected by voters or picked by the Governor, but elected by legislators.

That blurs lines of accountability, since no one is sure exactly what legislator was the moving force behind the appointment of which judge.

Founding Father James Wilson warned against such collective methods of picking officials and judges, and that's one of the reasons why the federal Constitution contains an Appointments Clause forbidding such collective appointments, leaving federal judicial appointments up to the president, subject to the consent of the Senate.
3.22.2007 12:00pm
Dave N (mail):
Knowing nothing about the suit, and not really having the desire to use Weestlaw to find the opinion, it seems to me that the reason the case is in state court might be a simple matter of "Diversity 101"--Ford may not be the only defendant and another defendant may share state citizenship with Jamison.
3.22.2007 12:03pm
Colin (mail):
Eddie,

Very nice.
3.22.2007 12:27pm
elChato (mail):
Dave N., Ford Motor Co. is the only listed defendant in the case caption.
3.22.2007 12:40pm
Dave N (mail):
elChato.

Just because they are the only listed defendant in the caption doesn't mean that there weren't other defendants. Traditionally, only the first party is named in the case caption, particularly in appellate decisions.
3.22.2007 1:21pm
CJColucci:
I thought Judge Mussmanno was dead.
3.22.2007 1:53pm
elChato (mail):
Googling the judge's name led to a SC Bar website offering a book he had written. Do I detect a nod of the thesaurus here?

"Widely recognized as a scholar of inimitable talent and perspicacity, Judge Ralph King Anderson, Jr. has produced a volume that no South Carolina lawyer should be without."
3.22.2007 2:47pm
Carolina:

The South Carolina courts rate low for quality in surveys such as the Chamber of Commerce's survey of lawyers.

They deserve a low rating. They are anti-business and manipulate and construe laws in odd ways that benefit trial lawyers and divorce lawyers.

They are not elected by voters or picked by the Governor, but elected by legislators.


That's a pretty unfair and gross generalization.

There are some very sharp legal minds on the bench in SC and some perhaps not quite as sharp. Much the same as in most other states, I would imagine.

I would agree that the method of selecting judges is less than optimal. The old joke down here is: "Q: How does one become a judge in SC? A: Your law partner gets elected to the General Assembly." There is some truth to that.

On the other hand, I really don't see how popular election (used in some other states) would be better. I'd honestly rather have my state legislators (some of whom are attorneys) picking the judges than random voters who can't possibly make an informed judgment about who should be on the bench.

As to the main topic of the post, the style of this opinion cannot be blamed on law clerks. Judge Anderson has had a ponderous style for many years.
3.22.2007 2:57pm
KevinM:
Some think federal law broadly preempts state court actions; I don't go so far. [Second sentence, I have no idea - sorry.] Common law tort actions are presumptively within the States' police powers. True, the Supremacy Clause requires that a state statute, administrative rule or common-law cause of action yield if it directly conflicts with a federal statute. It does not, however, grant federal judges any broader power to influence state tort law.
3.22.2007 3:44pm
KevinM:
Some think federal law broadly preempts state tort actions - not court actions. sorry.
3.22.2007 3:46pm
Bruce:
Wow, usually you have to go to literary criticism for stuff this impenetrable. Good to know that the lawyers can hold their own!
3.22.2007 5:08pm
Christopher Cooke (mail):
A very enjoyable passage. Here is my re-write:

Some scholars think federal law broadly preempts state tort law, and state court actions based on that law. We don't share their view.

(No idea what the first sentence means). If a state law conflicts with federal law, the state law is invalid. But, the Supremacy Clause does not allow federal judges to impose their own preferences for tort law on the states. Common law tort actions are historically within the scope of the States' police powers and are not preempted by federal law unless Congress reveals a clear and manifest purpose to preempt the tort actions.

We agree with the circuit court . . .
3.22.2007 6:16pm
Ken Kukec (mail):
When faced with such ungainly prose as a law clerk, I urged my judge to require the offending lawyer, under threat of contempt, to diagram a few of his sentences.

"Pellucid" ought to be reserved to describe writing that is the polar opposite of the example presented.
3.22.2007 6:33pm
Colin (mail):

"Pellucid" ought to be reserved to describe writing that is the polar opposite of the example presented.


And to those who can explain the origin and usage of "per-" or "pel-" as a prefix.
3.22.2007 7:49pm
steve (mail):
It was a dark and stormy opinion.
3.23.2007 8:59am