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"Arguably" Instead of Argument:

I see this often in legal arguments, especially (but not only) in student work -- the writer says something like "This option would arguably violate the right to jury trial," and feels that this sufficiently distances him from the assertion that he doesn't actually need to defend it.

This sort of usage is, and should be, quite unpersuasive. If you want to argue that the option would violate the right to jury trial, argue it. But if you don't think you have enough of an argument to support the position, then don't just assert that the position is "arguably" true.

Of course, sometimes a substantial possibility of some legal outcome might be enough to counsel against risking that outcome: For instance, a prosecutor might shy away from a (relatively low-benefit) litigation tactic simply because that tactic could cause the eventual conviction to be reversed, even if that result isn't certain or even highly likely. But there too "arguably" isn't enough -- you have to argue why there is such a material risk, and why this risk is reason to reject the option.

So the word "arguably" always puts on me guard that there might be an assertion being made without any supporting argument. And most of the time, that's precisely what's going on.

Related Posts (on one page):

  1. "Professor X Says":
  2. "Arguably" Instead of Argument:
Eric Muller (www):
I find that this is an especially common term on law school essay exams!
5.29.2009 2:31pm
TolleyJenkins:
Seems like it would be fine for a typical 3 hour law school issue-spotting exam, no?

As a young practitioner, I appreciate this reminder.
5.29.2009 2:34pm
David Welker (www):
Eh,

I think that, arguably, there is any problem with the use of the word arguably -- as long as it is used properly.

Time, after all, is a scarce resource. So, sometimes one could imagine arguments for a position, but you haven't really had the time to flesh them out. Maybe it just isn't worth the resources. But, you are saying something here: you are saying, looking at this in less depth, it tentatively appears that one could argue a certain position.

Of course, for an exam in a law school class, one actually does need to expend the time to make the actual argument (unless it is a fringe issue that really is outside the scope of the exam). But, in other contexts, there isn't always enough time to make every argument, or if there is enough time, one is inclined to spend it on other things.

Another context in which arguably is useful is as a conversation starter on a particular topic. You haven't made the argument yet, and you aren't sure it can be made but you think it probably can be. You assert "arguably X" and see how things develop in conversation. Maybe after that conversation, you will have, you know, an actual argument.

Overall, I agree that "arguably" is definitely not persuasive in making an argument. I don't think it is intended to be. It really is a signal that one is not certain that the argument can be made, but that you have a superficial sense that it probably could be made. In a world of imperfect information and for everyday decisions that are not important, that is more than nothing. Just barely though.
5.29.2009 2:37pm
kormal:
[i]I find that this is an especially common term on law school essay exams![/i]

In that context, I think "arguably" has its place. If I'm writing dispassionate legal analysis (as opposed to arguing a position), I would use "arguably" to identify an argument that might seem appealing upon first blush with the facts and law, but is easily dismissed. (E.g., "The statute arguably violates the Equal Protection clause, but . . . .".) It helps as a signifier of an argument that is non-frivolous but would by quickly dismissed by scrupulous advocates and wise Latina jurists alike. Its usage can be helpful, because you save space (don't have to outline the full argument), but you identify that you've recognized the issue and don't think it merits a great deal of analysis to reject.
5.29.2009 2:42pm
Anon Y. Mous:
To me, it seems that using the word "arguably" indicates that there is an argument to be made, but that you don't necessarily endorse it yourself. For example, although I believe that racial preferences are unconstitutional, immoral and counterproductive. But, in discussing them, I may say, "Arguably, Affirmative Action is justified by the disadvantages Black people as a whole face in having inherited the proceeds of slaves rather than that of their owners." Of course, I would hope I would go on to make a case why I felt the argument was insufficient.
5.29.2009 2:43pm
kormal:
I see David Welker already made my point. And I messed up the italics tags. I have epic FAILed the comments section.
5.29.2009 2:43pm
martinned (mail) (www):
After pondering how I use it, I think I do normally use it with arguments. I write arguably for propositions that I don't believe are true but that do have non-frivolous support, or for propositions on which I haven't decided yet. In both cases, I think I would write "arguably" somewhere in the middle of explaining what the argument would be.
5.29.2009 2:45pm
Grobstein (mail) (www):
I use this sometimes. Not every piece of writing is the right place for a full exploration of every issue. In addition, sometimes the outlines of a given argument will become obvious simply by flagging the conclusion, and the whole argument need not be supplied.

How appropriate this is, say, on an exam depends heavily on who is grading it.
5.29.2009 2:48pm
Commentor (mail):
Use of the word "arguably" works well when you want to compare two assertions, one of which is merely "arguable" while the other is not.
5.29.2009 2:58pm
Realist Liberal:
Usually the only time I use "arguably" is when I'm describing part of opposing counsel's argument but I'm really going to attack another part.

If the other side has to prove A and B, it might go something like... "Arguably, the plaintiffs have shown A. However, they certainly have not met their burden in showing B because...."
5.29.2009 3:01pm
Juan Inukshuk:
My favourite use of this in a law review was an aside talking about globalization: "It could be argued that the ultimate global standardization of behaviours, practices or social structures could pose risks to the very survival of humanity, susceptible as it would all be to attack by viruses or terrorists able to exploit a universal vulnerability."
5.29.2009 3:05pm
alkali (mail):
Alex Beam of the Boston Globe remarked several years ago that "arguably" is usually best read as "not." (E.g., "Titus Andronicus is arguably Shakespeare's greatest play.")

That said, if there was ever a place to use the word, it is on a law school exam.
5.29.2009 3:18pm
tvk:
I have to disagree in part. It is a hedge term, and sometimes they are really useful:

1. To preserve wriggle room if you are ever up for Supreme Court confirmation. E.g. denying abortion is arguably involuntary servitude in violation of the 13th amendment.

2. To float a high-risk, high reward argument that the judge might take up and run with himself, but insulate yourself from being really slammed at oral argument. E.g. my opponent's argument is arguably fraud on the court.

3. When writing truly objective review pieces on close legal questions, which pretty much describes every law school exam, and many memos in practice.
5.29.2009 3:30pm
lucia (mail) (www):
INAL. But I would usually use arguably to indicate that I concede someone might have a good argument against my argument or plan, but, for now, I'm going ahead with my plan. For example:

"Arguably, skipping dessert might wise, but I am going to order the chocolate cake."
5.29.2009 3:44pm
Chico's Bail Bonds (mail):
"Arguably, under the local rules, we can serve by email alone, but to be safe, let's serve by us mail and email."

In the alternative, you can research and write a 10 page memo on service by email under the local rules.
5.29.2009 4:04pm
Duffy Pratt (mail):
It's not as bad as when someone says "I would argue..." If that's what you would argue, then argue it.

On sports radio, the phrase that annoys me most is "...in the conversation." Thus, its arguable that "arguably" is not the worst offender along these lines, but its in the conversation.
5.29.2009 4:07pm
martinned (mail) (www):

It's not as bad as when someone says "I would argue..." If that's what you would argue, then argue it.

That's at least one thing that we Dutch have in common with our American friends: not much patience with tact. In other places, though, a hedge like this one would be used to soften the rudeness of disagreement a bit.
5.29.2009 4:15pm
Hedge (mail) (www):
"Arguably" is appropriate in some circumstances, not in others.

Arguably, EV needs to loosen up about the use of "arguably."
5.29.2009 4:25pm
David Welker (www):

If the other side has to prove A and B, it might go something like... "Arguably, the plaintiffs have shown A. However, they certainly have not met their burden in showing B because...."


I really don't like this. It sounds like a concession. You are practically begging the judge to rule against you on A.

I think the time-honored "even if A were true (and I am not conceding it is), the appellant has not shown B."

As in:

(1)
"Even if the defense counsel's choice to not expend scarce resources investigating X were so unprofessional that they violated the highly deferential leeway given to defense counsel in such matters, the defendant has not shown prejudice."

I prefer this to:

(2)
"While the defendant has arguable demonstrated that defense counsel rendered him ineffective assistance of counsel, he has not shown prejudice."

In my mind, the second sentence nearly seems to concede ineffective assistance of counsel, whereas the first sentence makes it quite clear that no such concession is forthcoming.
5.29.2009 4:28pm
adam Scales:
Re: Alkali's Boston Globe point:

I have noticed that students in recent years have tended to use it in this fashion - that is, the arguable point is not at all sound, but let's move on - rather than the sense in which EV uses it (which is the sense I've used it). I wonder if this is because a synonym for "arguable" is "debatable", yet we tend to use the term "debatable" in the negative sense described above.
5.29.2009 4:32pm
einhverfr (mail) (www):
One other valid use of "arguably" would be to try to argue that an assertion is not relevant to the case at hand.

"Such a decision might arguably violate the right to a jury trial, but only in circumstances removed from the present one," makes a nice caveat and suggests keeping certain things open for future argument. It might be particularly useful when granting opponents arguments as possibly valid while dismissing them as removed from the present case.
5.29.2009 4:47pm
dmv (www):
I'm with einhverfr on this one.

I can see it used as a replacement for "plausibly," except using "arguably" doesn't go so far as to expressly concede plausibility, while still saying that the argument you're going to reject isn't totally fruit loops.
5.29.2009 5:06pm
TruePath (mail) (www):
Also it is often appropriate to note the existance of a potential argument that you don't wish to or lack the time to consider.

For instance, "Arguably such a law would exceed congress's enumerated powers but here we only consider whether it would violate the 2nd amendment."
5.29.2009 5:16pm
Bob White (mail):
I use it the way others upthread have cited-to acknowledge the existence of an argument I myself most likely do not accept, at least in its stated form, and do not want to discuss, but whose existence I feel I should recognize in some way. Arguably, there's a better way to express that, but my general experience is that "arguably" gets the point across.
5.29.2009 5:30pm
resh (mail):
Wow. Deriding the use of arguably, now? Either esoterics are in search of a novel way to flutter the dovecoats or the soul of selective adverbs have mutated into literary phlogiston.

I once told a lady from Cleveland that I was arguably the man of her dreams. That she left immediately thereafter, sans a word, assured me that my case needed no added text.
5.29.2009 7:15pm
Rich Rostrom (mail):
I use "arguably" fairly often. I use it to describe a claim which is debatable or unproven, but for which a plausible argument can made.

For instance, baseball guru Bill James commented that it was plausible that at the peak of his career, Cubs shortstop Ernie Banks was the most valuable player ever. He didn't necessarily agree with that claim, but neither did he dismiss it: it was arguable (though he didn't use that word).

I can easily list a lot of propositions which I don't necessarily agree with, which are nonetheless arguable:

- Bush II was the worst President ever.

- Richard Nixon was unfairly hounded from office.

- The Italian campaign of WW II was a strategic mistake.

- Song lyricist Dorothy Fields was the greatest woman writer of the 1900s.

- Beer is proof that God loves us.

Unfortunately, for medical reasons I can't have any beer for the next ten days or so. Arguably, that is the worst thing in my life right now.
5.29.2009 8:13pm
Crunchy Frog:

Arguably, there's a better way to express that

Clearly, that's obviously the case.

Arguably.

I once worked with this girl who began every sentence with the word "actually", as if what followed was so implausible that it could not be believed otherwise. Drove me crazy.

Literally.
5.29.2009 8:18pm
Bruce Hayden (mail):
One other valid use of "arguably" would be to try to argue that an assertion is not relevant to the case at hand.
I think that this is probably the way that I use it the most. "Arguably, you may have a point there, but I would rather talk about something else". It can be used to accept that an argument was made, without debating it on the merits, so that you can address some other subject.

This works really well with significant others, daughters, etc., esp. when they haven't been through law school. Actually, it usually incites them, but not as badly as when one tries to get a discussion going about mens rea when accused of (intentionally) failing to take out the garbage.
5.29.2009 8:48pm
jim47:
I think "arguably" and "I would argue" are both highly appropriate for asides; because I would argue some point if I thought it was sufficiently relevant to be worth breaking up the larger structure of my piece for, or if I thought that my audience cared to hear my argument, but since I am not arguing it, you may safely assume that while I can argue it, in the present context I don't think I should, so I am not.

As others mention, "arguably" is also good for flagging a view that you view as legitimate, but with which you disagree.
5.29.2009 11:31pm
Barrister's Handshake (mail) (www):
I know it's just a typo, but when I read "always puts on me guard" in your last sentence I couldn't help but imagine you sitting at your computer in a pirate costume with an eye patch roaring in your best pirate voice.... arrrrrgh-uably!
5.30.2009 12:59am
Leo Marvin (mail):
kormal:

I have epic FAILed the comments section.

If you think that's epic FAIL, you haven't read many of these comment threads.
5.30.2009 3:57am
Tony Tutins (mail):

[Arguably] helps as a signifier of an argument that is non-frivolous but would by quickly dismissed by scrupulous advocates and wise Latina jurists.

I agree with kormal's shade of meaning: an argument with a couple points of support, but weak overall. I would immediately say, "because X fact supports Y issue, and Z fact supports A. But, C, D, and E..."
5.30.2009 11:13am
Anonymoose (mail):
I generally use "arguably" as an aside. To suggest that I could make a fair case on said point but it is not wholely relevant or worth devoting resources.

Of course, it could be asked why I bring it up at all if it isn't that relevant. The answer being that I am used to slashing paragraphs, sentences, words, and punctuation marks at work. When I write for personal reasons, I'll ramble on all I want. Because I can. I'm also not a lawyer.
6.1.2009 3:25am
Another Kevin (mail):
Hmm, "Arguably ...; nevertheless, ...." can also mean: "It might reasonably be supposed that my learned opponent will advance the argument that .... I do not reach the merits of that argument in this discussion, because, even assuming arguendo that ..., the argument is rendered irrelevant by ...."

Is 'arguably' abused in that context?
6.1.2009 2:58pm

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