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This post may try your patience, but there are two questions of passing interest to me that I'd like to pose regarding some research I did regarding today's word, which is perscrutation. I have to quote in some detail two articles that I found via my library's excellent data base search, and which I couldn't find elsewhere to link to.
The first article is from the Providence Journal, dated Oct 10, 2004:
PROVIDENCE - While there's debate about Judge Bruce M. Selya's sesquipedality, researchers say the influence of his written opinions is Brobdingnagian.
In other words, while there's debate about Selya's use of big words, researchers say his opinions have made him one of the country's most influential federal appellate judges.
Selya, the only Rhode Islander on the 1st U.S. Circuit Court of Appeals, had his portrait hung last month at the federal courthouse in Boston. It's an honor usually not afforded active judges.
But Selya, 70, of Providence, remains highly productive in the 22nd year of his career on the federal bench. It's a career framed by written opinions that are noted both for how often they use unfamiliar words and how often they're cited by other judges.
Rhode Island Lawyers Weekly now plucks words from Selya's opinions to test the vocabulary of readers in a feature called "Selya's Scrabble."
"Anyone familiar with 1st Circuit Judge Bruce M. Selya's decisions knows that having a dictionary handy can go a long way toward deciphering some of the more recondite (not easily understood) recitations in his opinions," the Feb. 16 installment stated.
Some examples, compiled by news editor Jason M. Scally, include abecedarian (elementary or relating to the alphabet) and salmagundi (a mixture or assortment, potpourri).
Selya cites two sources for his extensive vocabulary: he's always been a voracious reader, and at Classical High School he took four years of Latin, which sparked his interest in the origins of words.
SELYA ALSO can be playful, even mischievous in his word choice.
In 1982, when ruling on a music-industry case, Selya wrote his opinion in movements, starting with an "overture" and ending with "the crescendo and curtain call."
In 1983, when untangling claims that a prospective Scituate teacher was denied a position because of political and community activities, Selya set out a cast of characters, or "dramatis personae," which included "Nancy Zito: Like cream she floated to the top" and "Jean Dube: A highly rated docent, she opted for the cosmopolitan delights of Woonsocket in lieu of Scituate's more pastoral splendors."
Some say Selya can go too far.
In a 1992 New York Times article, Bryan A. Garner, editor in chief of Black's Law Dictionary and author of several books on legal writing, took Selya to task for his use of puns, saying the judge's plays on words had demeaned litigants and the legal process.
For example, in a 1987 opinion involving Brad Foote Gear Work Inc., Selya used phrases like "put its best foot forward" but "does not toe the mark." Garner said Foote "probably had to put up with sophomoric jokes about his name throughout adolescence. Judge Selya allowed Mr. Foote to revisit those years."
Selya was asked about The New York Times article in Howard Bashman's Web log, "20 Questions for the Appellate Judge."
"While I do have a penchant for puns, I also have an instinct for self-restraint," Selya replied. "I do agree that basing puns on the names of the parties in a case is an undesirable practice, and, having made the mistake once or twice, I will not make it again. Witness my ability to resist -- until now -- the impulse to refer to these questions as 'judge-Bashing.' "
AS FOR THE BIG words, Selya told Bashman: "I am unapologetic about my word choices. Words are merely vehicles for conveying messages. There is no point in putting certain words off limits: if a word fits the need -- if it conveys the message -- I will use it. If it does not fit, I won't submit. I may be incurably lexiphanic -- but lexiphanicism for its own sake is not my style."
Lexiphanicism is defined as the use of pretentious words, language or style.
As a law clerk for the late Chief U.S. District Judge Edward W. Day, Selya used to riffle through a massive 1934 Funk & Wagnall's dictionary. And in later years, law clerks would run to that dictionary to decipher the meaning of Selya's opinions.
The tome still rests on a stand amid mahogany bookshelves inside downtown's grand granite federal courthouse. But now Selya can't read the small print. The convergence of three eye conditions -- glaucoma, amblyopia and the wet form of macular degeneration -- has left him with "no conventional reading vision," he said.
Selya is able to continue his work by using enlarged text and video magnification. Besides, colleagues say, there aren't many words he needs to look up.
State Superior Court Judge Robert D. Krause said he once gave Selya a copy of Peter Bowler's The Superior Person's Book of Words, a paperback packed with unusual words and phrases. "He just smiled and told me he didn't need it," Krause said.
Krause, who used to appear before Selya as a federal prosecutor, said, "Reading a Bruce Selya opinion is a bit of an adventure. Sometimes it can be a bit prolonged because he is such a wordsmith, and one often needs a dictionary to decipher some of the words he uses. After all, pleochroic, acarpous and jannock are not typical court jargon."
BUT SELYA'S opinions can be fun, too, Krause said.
"Most of all, however, reading a Selya opinion is an intellectual feast," he said. "If you find a Selya decision, you need look no further, because it is extraordinarily reliable, complete in every aspect and uncommonly instructive."
Krause said Selya is often quoted by other judges -- not just because he can turn a phrase but because he can analyze and resolve legal issues. "Simply put, his decisions are, in a word he probably would use, indefectible -- that is, flawless," he said.
Not everyone would choose that word. In his book The Elements of Legal Style, Garner referred to Selya without mentioning his name, saying: "One federal appellate judge habitually uses the following words (and many others like them) in his opinions: decurtate, encincture, eschatocol. . . . "
"In an age when many of our judicial opinions lack originality and freshness, this use of the English vocabulary is peculiarly striking," Garner wrote. "But it strikes us negatively in almost every instance because the writer has strained to find the unfamiliar word when the ordinary one comes immediately to mind. Why perficient instead of efficient, or perscrutation instead of scrutiny?"
In an interview, Garner said many of Selya's big words are labeled "archaic" in the Oxford English Dictionary. "They are not words that are alive except in Judge Selya's opinions," he said.
"If many judges began writing this way, it would not be a good thing for American jurisprudence," Garner said. "There is a difference between people who use big words because they have irreducible meaning and showing off, and I'm afraid he's showing off."
Selya said he is not showing off and never pulls out a thesaurus to search for an arcane word. To convey a precise meaning, he will sometimes use a big word that he is familiar with, he said, and other times, "it's a method of calling attention to the point."
Selya said he strives to make his opinions readable. "There is a tendency to write judicial opinions in stilted prose," he said. "I subscribe to the view that there is nothing incompatible about good prose and good jurisprudence."
Also, Selya said, he remembers his roots and tries to write opinions that are helpful to lawyers and trial judges. "A federal judge in Maine once said I write 'how to' opinions on how to handle a particular legal problem, and I took it as a compliment," he said.
FORMER U.S. Attorney Margaret E. Curran, who was Selya's law clerk from 1983-84, said Selya never obscures the main point of his opinions and tends to put unfamiliar words in introductory sections. "He always articulates a rule of law or procedure in words everyone can understand," she said.
Curran credits Selya with an uncanny ability to zero in on the key point in a case. When she was doing appellate work in federal court, Selya would question her sharply, making it clear that his former law clerk would get no special treatment. "He'd torture me," she said. "I would write every brief assuming he would be on the panel because he'd cut to the heart of the case and the weakest part of the case."
In his Web log, Bashman asked Selya whether the big words discourage others from citing his opinions. "I doubt that I am less quoted by appellate advocates and other judges because of my word choices," Selya replied. "However, if diminished citation is the price of liberty, so be it."
SELYA NEED NOT worry about diminished citation. In a study published in the June 1998 University of Chicago Journal of Legal Studies, three law professors analyzed how often federal appellate judges were cited in opinions written by other federal judges. Of 205 judges, Selya ranked second in a measure of citations by judges from other circuits, and he ranked first in a measure of total citations.
This year, a pair of law professors went a step further in a study titled "Choosing the next Supreme Court Justice: An Empirical Ranking of Judicial Performance."
The study, whose theoretical version ran in the January 2004 California Law Review, criticized the current judicial appointment process, saying, "Both sides claim that their candidates are the 'most meritorious' and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates' likely positions on hot-button political issues like abortion, gun control and the death penalty."
As an alternative, the professors proposed a "tournament of judges" based on measures of productivity, quality of written opinions and independence.
Selya ranked 13th out of 98 federal circuit court judges based on the number of opinions produced between 1998 and 2000. He ranked fourth based on the number of times judges from other circuits cited his opinions.
And he ranked 33rd in an independence measure, which factored in dissents, concurrences and the political party of the president who appointed judges. (Former President Ronald Reagan appointed Selya, a Republican).
But when the professors got down to deciding who should win the theoretical tournament, Selya didn't make the cut because he's 70 years old.
"We suspect that the President will select a Supreme Court nominee younger than 65," they wrote. "The reason being that a younger appointee will likely have a longer tenure (and, therefore, greater influence)."
In interviews, University of California at Berkeley Prof. Stephen Choi and Georgetown University Prof. Mitu Gulati said their study confirmed that Selya is a highly respected judge. "Selya has been among the most cited judges for a long time, so why has there been no debate about whether he should be one of the people elevated to the Supreme Court?" Gulati asked.
One answer is that while Selya's name has been sent to the White House as a possible Supreme Court nominee, Democratic presidents were unlikely to pick a Republican, and Selya has never been pegged as conservative enough for a Republican president. The late Sen. John H. Chafee, a moderate Republican, recommended Selya for the federal bench. Selya was Chafee's campaign manager and longtime friend.
When asked about the "tournament of judges," Selya said, "The idea is errant nonsense." He said judges would be able to manipulate the ranking criteria, and the tournament wouldn't remove politics from the process. Also, he said, "Judges ought not to compete for rankings. They ought to be trying to decide cases as best they can."
AT THIS POINT in his career, Selya could easily rest on his rankings and retire. He graduated from Harvard Law School magna cum laude and was a successful private attorney. He helped create Lifespan and was the hospital system's first chairman. He was chairman of the board at Bryant College (now University) and spent the past five years on the Judicial Panel on Multidistrict Litigation, which assigns groups of big legal cases such as the antitrust suits against Microsoft.
Earlier this year, Selya, who has a lifetime appointment and $167,600 salary, considered taking "senior status," which would mean less 1st Circuit work, or leaving the multidistrict panel, which requires a lot of traveling. He chose to give up the multidistrict work and remain on active status in the 1st Circuit.
"I continue to delude myself that I'm being useful," Selya said. "My colleagues have encouraged me to stay on active status. And part of it is I can't think of what I'd rather do. I love the work."
When a reporter entered his office last week, Selya was preparing an upcoming opinion, poring over a legal memorandum. He'd just come across a commonly misused phrase. "I'm going to have to add a footnote," Selya declared. "Pandora didn't have a box. She had a jar."
Here's the earlier New Yorks Times article, dated Mar 27, 1992 (byline Margolick, David):
When Bruce M. Selya became a judge a decade ago, he vowed that his opinions would not be the bromidic, otiose, etiolated, jejune, dessicated tomes that had put him to sleep as a practitioner. He would forge at his judicial smithy a gleaming alloy of wit and erudition rather than the leaden dross pounded out on lesser legal anvils.
In other words, Judge Selya, who sits on the United States Court of Appeals for the First Circuit in Boston, would forsake the usual boring legalisms for lively, polysyllabic words of the sort found only in the unabridged Oxford English Dictionary, puns of the sort once found in the headlines of Barron's and The Sporting News, and figures of speech found primarily in the "Block That Metaphor!" department of The New Yorker magazine.
In Judge Selya's linguistic armamentarium, various entities may be described as exiguous (meager), struthious (ostrich-like), neoteric (modern, recent) or inconcinnate (unsuitable, awkward). His world is populated with people who are forever repastinating (digging again), resupinating (turning upside down), prescinding (withdrawing attention from), perfricating (rubbing thoroughly) or vaticinating (prophesizing).
Woe betide the litigant with an unusual name or occupation and thin skin. Consider, for instance, his 1987 opinion in a case involving Brad Foote Gear Works Inc. Judge Selya used phrases like "Foote's stance sidesteps the established principle" and "does not toe the mark"; Foote "stumbled" and "put its best foot forward"; and the trial court had not allowed Foote "to slip free of his laces." Not surprisingly, he kicked Foote out of court. "The shoe, fitting, must be worn," he concluded.
Similarly, a Selya opinion involving the International Ladies' Garment Workers Union uses phrases like "a lingerie manufacturer made a slip," "plaintiffs' own filings place them in the tightest of corsets," and the union had "played pantywaist." In another case, he wrote that the Boston Edison Company had "blown a fuse" and that its legal "surges" were "of low voltage." A prisoner complaining about poor meals provided Judge Selya with "scant food for judicial thought." Such persons, he said, were "receiving their just desserts."
Judge Selya has spoken of his eagerness "to desert the long line of solemnity which stretches from Blackstone to Burger and beyond." But in the manner of Ralph Kramden, some critics greet his attempts at humor with a jeering "ha-ha-hardee-har-har." One is Bryan Garner of Dallas, author of "A Dictionary of Modern Legal Usage" and editor of the Scribes Journal of Legal Writing.
In an article in the most recent issue of Scribes, Mr. Garner faults the judge's use of words that, while arguably more precise than more commonplace synonyms, sends even a professional wordsmith like him to the dictionary. He compared Judge Selya to Holofernes, the pedantic schoolmaster who spouts Latinisms throughout Shakespeare's "Love's Labor's Lost."
"Many of his words are not in most dictionaries and have been obsolete for a long time," he said. "To say 'perscrutation' instead of 'examination' is ludicrous." But deep down, he was asked, wasn't he impressed by Judge Selya's word power?
"I might have been when I was 17," Mr. Garner replied.
He is even more agitated by Judge Selya's puns. In an article entitled "Cruel and Unusual English: When Judges Play with Words," which appeared in the Dallas Bar Association's newsletter, he asserted that the judge's plays on words demeaned litigants and the legal process.
Take the Foote case. "Behind the company name, one assumes, is a person named Brad Foote, who probably had to put up with sophomoric jokes about his name throughout adolescence," he wrote. "Judge Selya allowed Mr. Foote to revisit those years." As for the Garment Workers case, "one wonders whether the other judges on the panel felt perfectly comfortable in joining in the opinion," Mr. Garner wrote.
"I think he thinks he's very funny, but to me it's the worst example of a judge's abusing his position rhetorically," Mr. Garner said in an interview. "To me, the puns are mean-spirited and the big words are pompous."
Judge Selya, whose spoken language is surprisingly normal, has no apologies for his vocabulary. "I don't go looking for unusual words to use, but if it pops in my mind I don't withhold it simply because it may not be in common usage," he said. "There are worse things than forcing people to go occasionally to the dictionary, which is one of the most under-used books in the library."
And though conceding there were a few phrases in his opinions he would, in retrospect, like to strike, he said he had no intention of muzzling himself.
"Legal humor has got to be used, no pun intended, judiciously," he said.
now, finally, here are the two questions:
1. How do you feel about a judge using this kind of language in his rulings?
2. Did you get any kind of uncomfortable feeling when you read the earlier NYTimes article in regard to the later article?
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Carpal Tunnel
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Prolly best if I abstain from this discussion.
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Quote:
Prolly best if I abstain from this discussion.
and here's me thinking I should have addressed this to you (and other interested parties).
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Pooh-Bah
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Quote:
Prolly best if I abstain from this discussion.
All due respect: bunk.
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Carpal Tunnel
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1. I think we need more judges like Selya, but that prolly doesn't surprise anyone who has seen more than seven of my posts here, does it?
2. I think the writer of the second article had neither sense of humor nor soul. In my career I read a lot of legal opinions, and unfortunately never ran across this guy. There really is room in the law for someone like this, the second article notwithstanding. Actually there's room for lots of people like this, come to think on it.
TEd
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Carpal Tunnel
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You've got to love this quote: "If it does not fit, I won't submit."  Personally, I think life is to short not to view it with a sense of humo(u)r. I wonder if he ever used the word "absquatulate" in any of his opinions?
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Carpal Tunnel
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sounds like someone who enjoys his job, and makes the most of it. more (word)-power to him.
formerly known as etaoin...
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Carpal Tunnel
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1. How do you feel about a judge using this kind of language in his rulings?
I think it's great, with a couple of caveats (heh), plus the fact that all I'm going on is the article and not an in-depth study of his rulings: a.) that his name puns not actually mock anyone, and b.) that little-known words do not obfuscate, confuse, or misdirect interpretation. I was relieved to read where the U.S. Attorney said, "...Selya never obscures the main point of his opinions and tends to put unfamiliar words in introductory sections. "He always articulates a rule of law or procedure in words everyone can understand,".
2. Did you get any kind of uncomfortable feeling when you read the earlier NYTimes article in regard to the later article?
Nary a bit. All that came across was that the writer didn't like what the judge was doing, and found someone to support his position; plus, I don't feel the need to particularly respect the opinions of anyone who could come up with and publish, "He would forge at his judicial smithy a gleaming alloy of wit and erudition...".
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addict
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addict
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I have no problem with a judge using these words - beats the hell out of bafflegab.
The puns and plays on words may be a bit roll-your-eyes, but none of them struck me as cruel.
The writer of the second article definitely has no sense of humour.
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Carpal Tunnel
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1. How do you feel about a judge using this kind of language in his rulings?
When it comes to the more obscure words, I agree with judge Selya, "There are worse things than forcing people to go occasionally to the dictionary, which is one of the most under-used books in the library," especially if the words do come naturally to him. His rulings are read by educated people, why would they complain about a little more knowledge. If they often read perficient (instead of efficient) then they too might help invigorate this seldom-used word.
It is also important to know that he keeps his more obscure words to his written rulings. This means that when he speaks to litigants he makes sure that he speaks in a way that they will understand him.
In regards to the puns, I think it is unprofessional, and disrespectful, because it pokes fun at the litigants. Not everybody has the same sense of humour. When you have not been the brunt of a joke for all of your life, you cannot know how horrible it can make you feel.
Constantly harping on one “punny” theme also denigrates one of the litigants in respect to the other. Both litigants are owed respect.
If he made puns that did not have to do with either litigant, then I wouldn't have a problem with it.
2. Did you get any kind of uncomfortable feeling when you read the earlier NYTimes article in regard to the later article?
Do you mean that the second article seems to use the previous article and elaborate on it? Like using the Foote examples?
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