11.22.07
Word in Context: argot
I like finding the right word. Often the right word is a simple word. The mantra of an old English teacher to “prefer the simple word” still echoes in my head as I draft. Yet the English language provides a feast of vocabulary options with subtleties or efficiencies and, in the proper context, I think fancy, precise words are fun and admirable. On the Seventh Circuit, Judge Easterbrook (who is reputed to author his own opinions without initial drafts from law clerks) often offers a delicacy to the reader. I like his work because it never seems as if he is stretching to use a big word. He just chooses a precise word to convey his meaning. This suggests a trenchant mind that has plenty of word choices! Here’s one example (other favorites will follow from a variety of judges regularly).
“And without any prospect of rivals’ exit, there is also no prospect of higher prices later (“recoupment,” in antitrust argot) and no antitrust worry.” Schor v. Abbott Labs., No. 05-3344 (7th Cir. July 26, 2006). [It's a published opinion, but I don't have access to Westlaw or Lexis to get the F.3d cite, alas. I miss my passwords . . . ]
As you may have guessed, argot means a specialized vocabulary or idioms used by a particular group. It’s more formal than “lingo” or “jargon,” befitting a legal opinion, and more efficient and less cumbersome than “in the language of” or some such phrase. I like it.
D. Kelly said,
November 24, 2007 at 1:45 pm
This reminds me of a good Scalia opinion (I think) where he clarified, mercifully, the difference between “waiver” and “forfeit.” I think it might have been the Olano opinion, but then again, that may just be a random case name floating around in my head.
As my Contracts professor taught me, say what you mean, because the Courts will make you mean what you say!
Emmel Philips said,
November 26, 2007 at 6:11 pm
If I recall correctly without research, choosing the right word between waiver and forfeiture is especially important to determine the standard of review on appeal. If the issue is waived in the trial court, there is no review available on appeal (although there might be collateral review if the waiver amounted to ineffective assitance of counsel or some other constitutional violation). If there was only silence below, the issue may have been forfeited, but subject to plain error review on appeal (did the court plainly err by not fixing something?).
O’Connor authored the majority opinion in United States v. Olano, 507 U.S. 725 (1993) (and Scalia joined the opinion), in which she states: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see, e.g., Freytag v. Commissioner, 501 U.S. 868, 894 n. 2 (1991) (SCALIA J., concurring in part and concurring in judgment) (distinguishing between ‘waiver’ and ‘forfeiture’); Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U.Pa.L.Rev. 473, 474-477 (1978) (same); Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214, 1214-1215 (1977) (same).”