Law’s Love of Adverbs

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Category: Legal Writing, Public
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Ah—the maligned adverb. Many writers eschew them. Stephen King, for example, seems to hate them. In his book, On Writing: A Memoir of the Craft, he writes, “I believe the road to hell is paved with adverbs[.]” He likens them to dandelions: one of them might look pretty, but they’re actually weeds that can and do take over your lawn (or, in the case of adverbs, your writing).

What is an adverb? Generally speaking, it’s a word that ends in –ly (though not always; scroll down here to see adverbs as emphasizers, amplifiers, and downtoners—all words we lawyers like to use). The purpose of an adverb is to modify verbs, adjectives or other adverbs. Getting rid of adverbs can, in fact, make our writing better because we are forced to choose stronger or more precise words. For example, I could write, Losing that case made me very angry. In that sentence, the adverb is “very” and it modifies “angry.” I wasn’t just angry, I was very angry. But wouldn’t it be more vivid, more precise, if I instead wrote, Losing that case made me livid?

That being said, there are good reasons to use adverbs, especially in legal writing of all kinds—memos, briefs, judicial opinions, statutes, rules, and regulations. Why? The law operates in the grey areas. A legal writer who is asked to give an objective opinion on whether a person might be liable for a particular claim can sometimes do no better than giving a qualified answer, like Martin is probably not liable. Other times, a legal writer will throw in adverbs to emphasize her point in a brief: Plaintiff is clearly entitled to relief. In judicial opinions, judges may want or need the wiggle room that an adverb can provide. A legal rule that comes from case law might allow certain conduct so long as it does not substantially burden certain people, for example. The question that lawyers will argue about in future cases, then, is what it means to substantially burden, and in so arguing, those lawyers will likely rely on tons of adverbs.

See here for a delightful article on why adverbs seem to be here to stay—at least for lawyers. Obviously, you’ll find it really enlightening.

 

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Justice Ginsburg on Empowering Oral Argument

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Category: Judges & Judicial Process, Legal History, Legal Practice, Public, U.S. Supreme Court
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Justice GinsburgAn interview with Justice Ginsburg appears in the October issue of Elle magazine.  In the article, Justice Ginsburg describes her first oral argument before the United States Supreme Court.  Any advocate could relate to her story:

I had, I think, 12 minutes, or something like that, of argument.  I was very nervous.  In those days, the court sat from 10 to 12, and 1 to 3.  It was an afternoon argument.  I didn’t dare eat lunch.  There were many butterflies in my stomach.  I had a very well-prepared opening sentence I had memorized.  Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience.

Justice Ginsburg argued on behalf of Sharon Frontiero in Frontiero v. Richardson.  In that case the Court held that the United States military could not differentiate on the basis of gender in how it provides benefits to service members’ families.

In the interview, Justice Ginsburg recounts that as she spoke before the Court during oral argument her confidence grew:

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.  So I relied on myself as kind of a teacher to get them to think about gender.

 

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Daubert Has “Teeth” (and a Pulse)

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Category: Legal Practice, Public, Wisconsin Law & Legal System
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The first published case on Wisconsin’s (relatively) new rule on expert opinion testimony has emerged at long last. In 2011 the legislature replaced Wisconsin’s decade’s-old approach with the federal “Daubert rule,” a rule rejected by state appellate courts on several occasions. The old rule left disagreements among experts mostly to the trier of fact, provided the witnesses had suitable specialized knowledge that could assist in fact finding. The current Daubert rule unctuously anoints trial judges as “gatekeepers” responsible for ensuring that only “reliable” expert opinions are put before juries. Many critics, me included, thought the old rule served the same purpose quite well. In State v. Giese, 2014 WI App 92, the court of appeals wisely signals that the new rule is mostly compatible with the older approach.  Read more »

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A Global Survey on the Study of International Law (Part II)

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Category: International Law & Diplomacy, Legal Education, Public
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Last month I put up the first in what I anticipate will be a series of posts on the subject of international legal education. I summarized the results of a global survey on the study of international law, reported that a majority of law students around the world must complete at least one course on the subject prior to graduation, and pointed out that the overwhelming tendency for American law schools to offer international law exclusively as an elective is fairly abnormal. In this post, I’ll explain my methodology and elaborate a bit on the data underlying my conclusions.

The methodology was pretty simple: I relied on a collection of official government documents, information available on the websites of university law faculties, and, occasionally, email correspondence with faculty members. Where this evidence established that a curriculum includes a mandatory course that on its face substantially implicates public international law, I coded the corresponding university as requiring international legal training. Inversely, I coded a university as requiring no such training where the evidence demonstrated that courses on public international law are elective or unavailable. Finally, I coded a university as “no data” if it has a law faculty but evidence of its curriculum was inaccessible within the confines of the research methods. For present purposes, the key point is that the numbers only reflect what I could find. This probably amounts to all relevant data for many states. But for others, particularly in the developing world, the data are less complete because not all universities have functioning websites and even those that have them often omit information about their curriculum. Read more »

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Attorney General Candidates Raise Profile of Low-Key Race in Eckstein Hall Debate

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Near the end of an hour-long debate Sunday between the two candidates for Wisconsin attorney general, moderator Mike Gousha asked if either wanted to bring up something that hasn’t gotten enough attention during the campaign.

Democrat Susan Happ, the district attorney of Jefferson County, answered first and talked about consumer protection.
Republican Brad Schimel, district attorney of Waukesha County, answered that the entire race hadn’t gotten enough attention. It’s an important race, he said, and there should be more awareness of it.

Indeed, the race has not sparked widespread public attention. A Marquette Law School Poll released on Oct 1 found that about four out of five of those polled did not have an opinion of either Schimel or Happ. Overall, the race was close, according to the poll, but people expressed an opinion on who they would vote for only in response to a question that identified each candidate by party.

With a little over three weeks to go until the Nov. 4 election, the debate Sunday, in the Appellate Courtroom of Eckstein Hall, may have helped give awareness of the race a boost. The debate, co-sponsored by Marquette Law School and WISN-TV, was broadcast live across Wisconsin. The candidates are scheduled to take part in two more debates. Read more »

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New Research on Violence

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Category: Criminal Law & Process, Public
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The new issue of Criminology features several interesting papers relating to violence and its control. This has been a hot topic here in Milwaukee over the past few months. Perhaps some of the emerging policy proposals would benefit from the new research.

First, an unusual controlled experiment in St. Louis provides support for “hot spots” policing, especially when officers proactively engage with citizens in the high-crime neighborhoods. Researchers working with the St. Louis Metropolitan Police Department randomly assigned hot spots of elevated firearm violence to one of three conditions: (1) a control group; (2) an enhanced visibility group in which officers were directed to patrol slowly through the targeted areas, but to refrain from self-initiated activity unless a crime was in progress; and (3) an enhanced activity group in which officers were directed both to increase patrols and to increase self-initiated activities, which might include arrests, pedestrian stops, vehicle checks, and so forth.   Read more »

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This Hallowed Ground

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Gettysburg1863-Forever-single-BGv1Part of the Army War College curriculum at Carlisle Barracks involves the study of past battles. While a student at the War College this last June, I spent several hours at nearby Gettysburg Battlefield as part of the College’s National Security Seminar. Consideration was given to issues of command and control as well as tactics. There was much to be learned from this pivotal battle.

We began the tour on the ground defended by the Iron Brigade (also known as the Black Hat Brigade). The Iron Brigade, with many soldiers from Wisconsin, suffered the highest percentage of casualties of any brigade in the Civil War. The Iron Brigade played an important role in slowing down the Confederate advance until more Union troops arrived in Gettysburg.

Having read about the Battle of Little Round Top—one of several key fights in the battle, walking around the scenic (and now peaceful except for the sound of tour buses) hill (and its neighbor, Big Round Top) one could only wonder at the ferocious fighting that took place there.   Read more »

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Spouses, Income, Alimony

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alimonyThere are few things in family law more controversial than alimony (also referred to as spousal maintenance), which is defined as a series of support payments made by one former spouse to another. Traditionally, alimony may be awarded when one spouse has need of financial support to maintain the marital standard of living, the other spouse has the ability to pay it, and the award meets certain criteria of fairness (e.g. it should not plunge the paying spouse into poverty or excuse the payee spouse from engaging in paid employment). Historically, alimony was paid by ex-husbands to their ex-wives, but today’s laws make it plain that either a man or a woman may be the payor. Spouses who have stayed home or reduced paid employment to raise children may claim that their activities at home made success at work more possible for the other spouse to succeed in the workplace, and that this should result in a greater share of the property division or an alimony award to either compensate the stay-at-home spouse for the sacrificed opportunities (restitution) or enable him or her to re-tool for a job with good pay (rehabilitation). Indeed, statutes like Wisconsin’s §767.56 direct judges to consider all of these factors (and others) in determining whether to award alimony to a divorcing spouse.

Nonetheless, alimony has never been common and has become less so: the few empirical studies that have been done show that only a small minority of divorcing spouses are awarded alimony of any amount and for any duration. The reasons for the always-low and still-declining numbers of alimony recipients are many and varied, and a full discussion of all of the theories requires more than a blog post.

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Wisconsin to Allow Same-Sex Marriage

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Category: Civil Rights, Human Rights, Public, Seventh Circuit, U.S. Supreme Court, Western District of Wisconsin
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wedding cakeOn Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.

Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Read more »

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Reflections on Judicial Contract Interpretation and the Boden Lecture

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Category: Business Regulation, Judges & Judicial Process, Public, Speakers at Marquette
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agreement-signingThis week in my Contracts class we are discussing how to interpret a contract — that is, how to give contractual language meaning. This discussion inevitably focuses on how courts interpret contracts, because Contracts casebooks primarily examine principles of contract through case law. Cases do, in fact, provide a useful lens through which to study contract interpretation, for they allow an examination of courts’ goals and tools in approaching conflicting arguments about how to interpret an ambiguous term. Yet we also considered judicial interpretation of contracts from a policy perspective.

Specifically, in light of Professor Robert Scott’s Boden lecture “Contracts Design and the Goldilocks Problem,” I asked my Contracts students to reflect on the wisdom of judicial determination of the meaning of ambiguous contractual language. Read more »

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New Marquette Lawyer Magazine Looks At Evolution of Important Issues

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fall-2014-coverHow did we get where we are today? Consider that a central question underlying many of the stories in the Fall 2014 Marquette Lawyer magazine, being mailed this week and now available online.

As Wisconsin’s heated election for governor heads to a conclusion Nov. 4, the cover story of the new magazine provides both rich detail and thoughtful perspective on how Wisconsin, especially the Milwaukee area, became so politically polarized. Craig Gilbert, the Washington Bureau chief of the Milwaukee Journal Sentinel, spent much of the 2013-14 academic as Marquette Law School’s Sheldon B. Lubar Fellow for Public Policy Research. Gilbert worked closely with Charles Franklin, the Law School’s Professor of Law and Public Policy and director of the Marquette Law School Poll, in developing insightful data that show the changes. Gilbert calls southeastern Wisconsin “the most polarized part of a polarized state in a polarized nation.” Six experts provide perspective on what Gilbert’s findings mean in essays that accompany the piece. You may read it all by clicking here. Read more »

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Prisoner’s Dilemma Game Show

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Category: Arbitration, Negotiation, Public
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In class last month, we rebooted the idea of the prisoner’s dilemma as previously portrayed on The Bachelor Pad (discussed on the Freakonomics Blog and four years ago on this site). This time, the conversation revolved around a British game show called Golden Balls that was very popular several years ago. I can only assume that you’ve already discounted Golden Balls’ educational value based on its name alone but bear with me . . .

The typical scenario plays out like this: two parties sitting across from one another with one crucial decision that decides how a lump sum of money will be divided. That decision revolves around the four golden balls that sit on the table. Each part can anonymously choose their split ball or their steal ball. If they both steal, they walk away with nothing. If they both split, they split the money. However, if one contestant chooses to split and the other chooses to steal, the thief will walk away with all of the money.

The typical situation ends something like this. But one contestant shows us a unique way to handle the prisoner’s dilemma in this video. Most importantly for class, some good commentary on the second situation can be found here. The class really enjoyed learning the real story behind the winning strategy.  Enjoy the show!

Cross-posted at the ADR Prof Blog.

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