“I don’t believe there are obscure words–just neglected ones.” Judge Bruce M. Selya.

Senior Judge Selya, a Reagan appointee to the First Circuit, is renown for his use of obscure (neglected) words in opinions. One article about the sesquipedalian septuagenarian notes criticism from some members of the bench and bar that his linguistic fillips render his opinions unclear. The article further discusses a law clerk’s perspective:

But for Selya, the more exotic, the better. In a book of memoirs his clerks gave him for his 15th year on the federal bench, Sara Lord recalls how the judge often flipped through his thick, dusty 1934 Funk & Wagnalls New Standard Dictionary to find the right word.”It wasn’t enough that the word be obscure,” she writes, “it also had to be ancient and exotic in origin. Anglo-Saxon words were good, but I remember the judge being particularly excited when he was able to use an ancient Persian word that probably no living person had seen or heard in the last thousand years.”

I would avoid words that no living person (besides the poor dictionary editors) had seen or heard in the last thousand years. At some point, neglect kills a word and we should just move on and let the poor word go. More reasonably than the law clerk’s hyperbole, the interviews linked above clarify that Selya does have mercy on his readers, and prefers to use precise words that can be decoded from context. (An example is in the post below.) A few lines I found in internet searches do seem excessive or contrived, in more than just word choice:

Plaintiff, as if bent on out-heroding Herod, see generally W. Shakespeare, Hamlet, Act III, sc. ii (1601), harangues stridently that brevis disposition of his complaints contravened both the general purposes of Title III and the specific rationale behind the statute’s consent exception. Turning up the volume, however, cannot mask the paucity of content contained in plaintiff’s argumentation. Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990). See here.

Because Cytyc failed to develop these embryonic arguments, we treat them as stillborn. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”). Cytec Corp. v. DEKA Prods., No. 05-2371 (1st Cir. Mar. 1, 2006).

I do appreciate his efforts (and those of his clerks) to make reading more interesting. The fun with language, however, must be tempered by the dignity of the parties before the court. A prisoner without a good dictionary probably does not appreciate the whimsical wording of an opinion deciding his fate (and, to Selya’s credit, the interview notes that he avoids puns with parties’ names now). Nonetheless, I would enjoy sitting down with Judge Selya for an afternoon, perusing his dictionary, and sharing Article III Bundt Cake* with his chambers.

* The Bundt cake deserves a post of its own some day soon.