Foster, Lynn

English

University of Arkansas at Little Rock: UALR Bowen Law Repository

University of Arkansas at Little Rock Law Review Volume 10 Issue 3 Article 7 1987 A Dictionary of Modern Legal Usage Lynn Foster University of Arkansas at Little Rock William H. Bowen School of Law, lcfoster@ualr.edu Follow this and additional works at: https://lawrepository.ualr.edu/lawreview  Part of the Legal Writing and Research Commons Recommended Citation Lynn Foster, A Dictionary of Modern Legal Usage, 10 U. ARK. LITTLE ROCK L. REV. 615 (1988). Available at: https://lawrepository.ualr.edu/lawreview/vol10/iss3/7 This Book Review is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. BOOK REVIEWA Dictionary of Modern Legal Usage. Bryan A. Garner. New York:Oxford University Press, 1987. 640 pp. $35.00.Lynn Foster*Books to help attorneys and law students write better are numer-ous, ranging in format from treatises1 to nutshells2 to dictionaries3 tothesauri.4 But until now, no book in the area of legal writing hasborrowed the format of H.W. Fowler's classic reference, A Dictionaryof Modern English Usage,5 which for decades was one of the mostimportant sources for writers and grammarians.Fowler mixed discussions of specific topics with entries aboutparticular words, all arranged in a single alphabetical order. In addi-tion to simply discussing the language, Fowler had his own opinionsabout what was good and bad, and frequently disagreed with thescholarly consensus of his time. Some of his judgments on the Eng-lish language are famous. For example, his five divisions of the Eng-* Law Library Director and Associate Professor of Law, University of Arkansas at Lit-tie Rock; A.B., M.S., University of Illinois; J.D., Southern Illinois University. Professor Fos-ter is coauthor (with N. JOHNSON & E. KELLY) of LEGAL RESEARCH EXERCISES (2d ed.1986).1. Some of the recent books on legal writing include: G. BLOCK, EFFECTIVE LEGALWRITING (3d ed. 1986); N. BRAND & J. WHITE, LEGAL WRITING: THE STRATEGY OF PER-SUASION (1976); V. CHARROW & M. ERHARDT, CLEAR AND EFFECTIVE LEGAL WRITING(1986); M. FREEMAN, THE GRAMMATICAL LAWYER (1979); R. GOLDFARB & J. RAYMOND,CLEAR UNDERSTANDINGS: A GUIDE TO LEGAL WRITING (1983); G. GOPEN, WRITINGFROM A LEGAL PERSPECTIVE (1981); D. MELLINKOFF, THE LANGUAGE OF THE LAW (1963);D. MELLINKOFF, LEGAL WRITING: SENSE AND NONSENSE (1982); M. RAY & J. RAMS-FIELD, LEGAL WRITING: GETrING IT RIGHT AND GETTING IT WRITTEN (1987); H. WEI-HOFEN, LEGAL WRITING STYLE (2d ed. 1980); R. WYDICK, PLAIN ENGLISH FOR LAWYERS(2d ed. 1985). Obviously, the legal profession is concerned about the quality of legal writing.2. L. SQUIRES & M. ROMBAUER, LEGAL WRITING IN A NUTSHELL (1982).3. BALLENTINE'S LAW DICTIONARY (3d ed. 1969) and BLACK'S LAW DICTIONARY(5th ed. 1979) are the two leading legal dictionaries in the United States, but a number ofothers exist.4. W. BURTON, LEGAL THESAURUS (1980), was the first modern legal thesaurus pub-lished, although it has been joined by a companion, W. STATSKY, WEST'S LEGAL THESAU-Rus/DICTIONARY (1985).5. H. FOWLER, A DICTIONARY OF MODERN ENGLISH USAGE (2d ed. 1965).UALR LAW JOURNALlish-speaking world (also quoted by Garner) are: "(1) those whoneither know nor care what a split infinitive is; (2) those who do notknow, but care very much; (3) those who know and condemn;(4) those who know and approve; and (5) those who know anddistinguish."6Mr. Garner has attempted to follow in Fowler's footsteps with abook intended for legal writers. Legal writing has its own vocabularyand its own very formal style. It is written for (usually) a specializedaudience, and tends to be confusing (to say the least) if it is writtenpoorly. In his introduction, Mr. Garner states that "[flor a special-ized langauge that is highly developed, the language of law remainsremarkably variable, largely because it has been incompletely re-corded and mapped."' 7 One of the unique aspects of this book is thatMr. Garner provides just this sort of mapping for many legal words.For example, an attorney looking up "discriminatee" ("a person un-lawfully discriminated against") would discover that, according toGarner, the word cannot be found in any legal dictionary, but that itis beginning to appear in cases. Three examples of its use in judicialopinions are listed, with citations.8 Such mapping of word use can bevaluable, and is now possible on a large scale with the advent of freetext searching on WESTLAW and LEXIS.Another purpose of A Dictionary of Modern Legal Usage is to"serve as an instrument of reform."9 The book clarifies meanings ofterms; for example I was interested and educated by the differencebetween "deprecate" ("to disapprove regretfully") and "depreciate"("to belittle, disparage;" or, "to fall in value"), having misused "dep-recate" for "depreciate" myself on several occasions.The book also contains short entries on various aspects of poorlegal writing; for example, the entries "jargonmongering," "lawreviewese," "Biblical affectation," and "purple prose" attack variousaspects of bad writing. Mr. Garner distinguishes between Latinwords which have become terms of art or parts of legal argot-like"locus" ("a place where something is situated or is done") or "protanto" ("as far as it goes")-and "bombastic, vestigious Latinisms"such as "vel non" ("or not"-Garner says of it that it "is almost al-6. Id. at 579.7. B. GARNER, A DICTIONARY OF MODERN LEGAL USAGE xi (1987). The book jacketstates that Mr. Garner was an associate editor of the Texas Law Review, later clerked for theUnited States Court of Appeals for the Fifth Circuit, and is now an attorney with the Dallasfirm of Carrington, Coleman, Sloman & Blumenthal.8. Id. at 191.9. Id. at xii.616 [Vol. 10:615BOOK REVIEWways superfluous; it is always vexatious") or "particeps criminis"("accessory"). Mr. Garner is ruthless in weeding out "archaisms,"outmoded words or expressions, like "aforementioned" and "to wit."Finally, since legal usage is, after all, a part of general Englishusage, the book also contains discussions of various types of nonlegalusage that will be useful to the legal writer. All of the examples (andthere are many) in these entries are derived from legal writing. Theentry on "sexism" is representative. Mr. Garner begins by discussingthe fact that English has no singular personal pronoun that can beused for both sexes. Traditionally, the practice was to use "he" and"him" for both sexes, but many writers have become increasingly un-comfortable with this and have searched for alternatives. Mr. Garnerquotes Fowler's three alternative solutions, which Fowler described as"makeshifts: first, as anybody can see for himself or hersef; second, asanybody can see for themselves; and third, as anybody can see for him-self.' 10 Mr. Garner offers a fourth makeshift, now commonly used:"as anybody can see for herself." He rejects an alternative found in aUnited States Court of Appeals case: "s/he," and concludes thatprobably "he" and "him" will continue to survive (I'm not so sure ofthat). The other major problem with sexism is words ending or begin-ning with "man" ("manful," "chairman," "foreman," etc.). Mr. Gar-ner notes statutes and court cases that have used more neutrallanguage, taking note of terms that seem to him so neutral that theyare ridiculous, like "personpower." He concludes by stating that it ishard to find a middle ground between minimizing sexism in writingand resorting to awkward devices. 1It is certainly hard to find a delicate balance when writing a bookof this nature. Obviously, a book like this cannot be directed towardvery poor (or "basic," as the current euphemism has it) writers. Onthe other hand, directing the book toward fanatic grammarians andaficionados of the English language risks attracting only a very smallaudience. By and large Mr. Garner has done an excellent job. Thebook's format is unique among legal texts. It should be very helpfulas a reference. One criticism is that since it is meant as a reference,perhaps entry words like "deictic" and "hypallage" and "tmesis"might have been left out and instead words like "pronouns" and "epi-thets" and "compound words" substituted. Few readers, if any, knowwhat the former terms mean. The book does have cross references,but they do little to alleviate this particular problem.10. Id. at 500 (quoting H. FOWLER, supra note 5, at 404).11. Id. at 499-501.1987-88]618 UALR LAW JOURNAL [Vol. 10:615The book covers not only American legal usage, but also usage inthe United Kingdom. It is not a book that will teach one how towrite-a book that covers the writing process-and for that reason Ido not recommend it for "basic" writers, or for first year law students,who already have enough books to read. But I do recommend it as areference work for all upperclass students and all attorneys who seekto improve their writing. It is a unique and valuable addition to theliterature of legal writing.

A Dictionary of Modern Legal Usage

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A Dictionary of Modern Legal Usage

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