November 1, 2006

"It cannot be gainsaid..."

I don't know about you, but when I'm reading a judicial opinion and run into the phrase "It cannot be gainsaid..." I feel a sense of revulsion... almost dread. Why is the judge (or clerk) writing like this? Why the sudden desire to sound like a fusty old gasbag? I start mistrusting everything.

The one I just ran into is in Byrd v. Blue Ridge Rural Electric Cooperative, a 1958 opinion written by Justice Brennan: "It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts." What purpose do the first five words of that sentence serve (other than to annoy me)?

Supreme Court justices have only used the word 113 times in the entire history of the Court, but more than 70% of these were since 1950. It was only used 18 times before 1900. (There are also 59 occurrences of "gainsay.") I mention these details because they bear out my suspicion that this is sheer pretension, a modern person's idea of how to sound like you came from the 19th century. I'm irked that the modern Justices ever affect a 19th century tone, and I'm further irked that they lack an ear for it.

IN THE COMMENTS: Other irksome expressions that judges need to stop using: "it is beyond peradventure," "it is beyond cavil," and "obloquy."

17 comments:

Mortimer Brezny said...

Maybe Geoffrey Stone (pretentious Brennan clerk) wrote that.

Bissage said...

It is clear beyond peradventure that Justice Brennan anticipated a dissent from Justice Cleese:

Justice Brennan: "It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts."

Justice Cleese: "Yes it can."

Justice Brennan: "Oh I've had enough of this."

Justice Cleese: "No you haven’t."

Justice Brennan: "Oh Shut up."

altoids1306 said...

Supreme Court justices have only used the word 113 times in the entire history of the Court, but more than 70% of these were since 1950.

The damning sentence. Pretending to be old-fashioned, and failing miserably.

They should do a left/right analysis on word usage.

the pooka said...

Maybe Geoffrey Stone (pretentious Brennan clerk) wrote that.

Nah. Geoff Stone clerked for WB in the '72 term; he was roughly 12 years old when the Court decided Byrd.

I actually like the phrase, though I admit that Brennan uses it gratuitously here.

Too Many Jims said...

I gainsayeth that this is a pretentious use of the english language.

Balfegor said...

The best:

. . . the 1621 report of the prisoner "condemne pur felony que puis son condemnation ject un brickbat a le dit justice que narrowly mist, et pur ceo immediately fuit Indictment drawn per Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court."

from the Volokhoi

It would be a grave injustice if the law were all lifted into its own degenerate parole, so that the laiety could not understand, etc. etc. But such fun it would be! Alas, I get my scilicet's and videlicet's mixed up, so I couldn't quite manage it.

I gainsayeth that this is a pretentious use of the english language.

Oh, one cannot have too much of the good old sesquipedalian prolixity!

LarryK said...

How many instances did Justice Brennan use "forsooth," "verily" or "egad"? Methinks these terms reek of desuetude (which really is a legal term, correct?)

Pogo said...

Aw, arcane language can be a real hoot. Maybe it is pretentious, or maybe the clerk and Justice just got bored ("If I have to write 'denied' one more time...").

Since by definition scholarly humor is boring, its use should be pitied, not chastised. The poor old coot.

bill said...

copying from the best thesaurus I've come across, The Synonym Finder (for pretentious, it offers the wonderful British slang "toffee-nosed"):

gainsay, v 1. deny, dispute, controvert, naysay, disbelieve; contradict, traverse, nullify, negate, disaffirm; disprove, confute, refute, discredit; protest, oppose, contravene; dissent, differ, challenge, impugn; object, demur, refuse assent, disagree; say no to, turn thumbs down, turn a deaf ear; prohibit, proscribe, veto.

—n. 2. denial, contradiction, disaffirmation, negation, denegation; disavowal, unsaying, repudiation, disclaimer, disclamation, gainsaying, recantation; refutation, disproof, confutation; protest, objection, contravention.

Bissage said...

bill: Thanks! After all these years I finally learn the meaning of the insult "toffee-nosed."

And such a coincidence:

Graham Chapman: "Shut your festering gob, you tit! Your type really makes me puke, you vacuous, toffee-nosed, malodorous, pervert!"

Ha!

Richard Dolan said...

This is an odd protest, coming from a lawprof. Lawyers are taught to be verbose. Take a wild guess where they first receive that training. The modern law review -- student edited, but filled with articles by lawprofs -- is the parody par excellence of the common confusion between cluttered prose and careful writing.

But what's this "sense of revulsion" that has come over Ann, just from a chance encounter with "gainsaid"? If all it takes is bad writing in a legal document for Ann to "start mistrusting everything," then Ms. Mistrust will be her new name. From the way you weathered the Boobathon here a month or so ago, I thought you were made of sterner stuff.

Ann's suggestion that the use of "gainsaid" in Brennan's opinion was "sheer pretension, a modern person's idea of how to sound like you came from the 19th century," has a little pretense to it as well. The simplest explanation is that it's just careless prose by a lawyer who doesn't have an ear for language, and thus wouldn't recognize "19th century" writing if he tripped over it. Perhaps he used "it is clear beyond peradventure" a few times already, and was just reaching for the same verbal crutch in a different decorator color.

Would that the law schools instilled in their students a recognition that clear, concise prose improves any legal document. Statutes and regulations, even more than SCOTUS decisions, are long overdue for improvement on that score. So, Ann, now that you've raised the issue, what's your plan to accomplish the goal?

David said...

It goes without saying that no rhetorical tick is as annoying as "it goes without saying," or, in other words, "I'm about to waste your time."

Richard Fagin said...

I would have thought you'd had enough of Justice Brennan after reading World-Wide Volkswagen Corp. v. Woodson. As the great Atlanta Journal-Constition columnist and author Lewis Grizzard might have said, "Go stick your head in a bucket of obloquy."

Joe said...

It is beyond cavil that gainsaid is an annoying word.

Dave said...

Richard Dolan is onto something.

Victor said...

Gainsay means to contradict or deny.

Example: The athlete was unable to gainsay his positive drug test.

Example 2: It is impossible to gainsay the importance of a good education in today’s competitive job market.

When I read those examples, I can easily understand the meaning of the word. For a court justice, using gainsay doesn't come off as pompous, considering his/her education.

However, if I were on the high school debate team however saying Gainsay, then that would come off as pretentious.

Here's where I got the examples from: http://wordsinasentence.com/gainsay-in-a-sentence/

Victor said...

Gainsay means to contradict or deny.

Example: The athlete was unable to gainsay his positive drug test.

Example 2: It is impossible to gainsay the importance of a good education in today’s competitive job market.

When I read those examples, I can easily understand the meaning of the word. For a court justice, using gainsay doesn't come off as pompous, considering his/her education.

However, if I were on the high school debate team however saying Gainsay, then that would come off as pretentious.

Here's where I got the examples from: http://wordsinasentence.com/gainsay-in-a-sentence/