The Sesquipedalian Septuagenarian
posted by Frank Pasquale
That’s the Boston Globe’s apt appellation for Judge Bruce Selya of the First Circuit Court of Appeals. Howard Bashman interviewed the Juvenalian jurist a few years ago; the Globe adds a well-deserved profile.
Selya has a knack for combining linguistic raras aves, snappy dismissals, and an academic’s detachment. Opiniones ipsa loquitur:
This is a ghost ship of an appeal. One hears the creak of the rigging, the groan of the timber, and the muted sound of voices through the fog, but there is nothing solid to be grasped. In the end the appeal, like the ghost ship, vanishes into the mist, leaving things exactly as they were. The tale follows.
Sanchez v. Puerto Rico Oil Co. (1994). As the Globe reports, “he opened a decision in a libel suit against the Boston Phoenix by writing: ‘The oenologist’s creed teaches that we should drink no wine before its time. Much the same principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.’”
You may be wondering at this point: Is Judge Selya simply bored? Is this merely vaporous bloviation? Is Judge Gertner right to be chary of his verbal purfle, and to insist that “We need to be as clear as possible”?
At the risk of being accused of praeteritio, I don’t think so. I, for one, see Selya as a Noah of language (or King Azaz the Unabridged), shepherding endangered words into a genre desperately in need of the verve, variety, and precision unusual language preserves. Perhaps one might argue that judicial language ought to be as dry and neutral as possible, to stylistically manifest the ideal of a “government of laws, not of men.” But the law is ultimately written by individual persons, and to the extent a jurist’s bons mots illustrate that point, they advance rather than obscure important truths about our system. As in Robert Lowell’s Epilogue, “why not say what happened?”
And as in one choice Selyan phrasing (recalling Jackson on finality): “We need go no further.”
December 15, 2006 at 7:40 pm
Posted in: Humor, Law and Humanities
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Responses (10)
Pedant - December 15, 2006 at 10:02 pm
Would it either be “opinio ipsa loquitur” (probably this is right, because you mention only one opinion) or, if plural, “opiniones ipsae loquuntur”?
(I will remain anonymous for this one–rather too pedantic, plus I’m asking because I want to review my Latin–and this makes no difference to your substantive point whatsoever!)
Frank - December 16, 2006 at 10:07 am
Count me chastened! I did intend for both the opinions to be “talking,” as only the latter contained the unusual word. I believe “ipsa loquuntur” is right, since I was assuming ipsa was plural second declension neuter…but let me check with a latin prof.
Pedant - December 16, 2006 at 1:51 pm
I believe that in “res ipsa loquitur,” res is singular feminine nominative, as is ipsa, which modifies “res” (”the thing itself speaks”). (Loquitur looks passive, but it’s really deponent.) But let’s see what the Latin prof says….
(The heck with this law stuff–*this* is fun!)
Orin Kerr - December 16, 2006 at 3:52 pm
Frank,
To be fair, the criticism is not that Selya’s opinions fail to be “dry and neutral as possible,” but that the intentional use of unknown words can render them incomprehensible. Reading a Selya opinion can be like reading an essay filled with yurhnlippy. Perhaps some readers love bungulubru, which might explain a lot. But surely the law must stand for renkedew, right? I suspect most litigants would prefer a clear opinion that everyone can understand to an opinion filled with burlefted furghneist.
Pedant - December 16, 2006 at 4:23 pm
Not to stray from the obviously far more important Latin grammar issues, but–my dictionary does not include “yurhnlippy” (it does, of course, include “burlefted,” though (obviously) that form is listed under “burleft”).
My dictionary does, however, include all the words in Selya’s opinions. His opinions are “incomprehensible” only to someone who can’t be bothered to look up the words that he can’t comprehend.
Orin Kerr - December 16, 2006 at 4:39 pm
His opinions are “incomprehensible” only to someone who can’t be bothered to look up the words that he can’t comprehend.
Yes, true. However, that describes almost every lawyer, and probably every litigant. A handful of people may have the time and willingness to make the opinions understabable, but I suspect only a handful do.
I believe I completely translated a Selya opinion only once, when I put an opinion in a casebook I was publishing. And before I put the opinion in the casebook, I had to edit carefully and make sure that I wasn’t putting too much of a burden on students. I blogged about the difficulty here:
http://www.orinkerr.com/2006/05/24/choosing-opinions-for-a-casebook/
Pedant - December 16, 2006 at 5:11 pm
Ho. Ly. Cow. Orin, I’m impressed that you managed to edit that down for a casebook. That is seriously bad writing. I have no problem with unusual words, if they’re the right words. But the problem here isn’t unusual words; I know every word he uses and I had to read those paragraphs three times just to understand what he was talking about. This is not a problem a reader can solve with a dictionary; it’s a problem the writer must solve, preferably with Strunk and White.
(Also, he doesn’t use the words or allusions carefully, and so ends up saying perhaps too much. To “out-Herod Herod,” for example, is to overact. Does he mean to suggest that the plaintiff is lying–that he doesn’t really mean what he’s saying?)
On the other hand, is it possible that he’s intentionally explained this simple issue with verbose and histrionic paragraphs in order to point out the absurdity of the plaintiff’s (apparently) similar approach to litigation? If so, then I take back everything I said and stand in awe. (Though the joke could probably have been pulled off more smoothly, and in my view it’s a bit self-indulgent to play games like this instead of making the law comprehensible–but still. Wow.)
Peter the Preterit - December 17, 2006 at 10:39 am
Last year, at a lavish lawyerly lunch, I asked the judge about his linguistic excesses, and he explained that he only allows himself exactly the right word in exactly the right context — and guards against the inclination to decorate his opinions just for the sake of the glam and glitter that comes from glib grammar.
skeptical - December 19, 2006 at 10:39 am
I interviewed to be a Selya clerk (more than a decade ago) and prior to the interview, thought it might be a wonderful educational experience to work with someone with such an awesome vocabulary at his disposal. His clerks at the time made quite clear that one of the jobs of a Selya clerk was to find obscure phrases and words to spice up the opinions. Another job was to pick up his dry cleaning. I withdrew from consideration for the clerkship. Perhaps these clerks were exaggerating — I presumed not, but obviously don’t know first hand.
Frank - December 19, 2006 at 8:26 pm
As for Pedant: yes, you got me. I never won the certamen competitions!
As for Orin: It looks like we’ve got a conflict between Peter Preterit and skeptical as to exactly why & how Selya picks the rare words. If skeptical is right, I’m with you–this is mere obfuscation.
But I will say that, now that dictionary.com is but a mouseclick away, no one should be too worried about a rich vocabulary. If I put a weird word in, I usually assure it can be looked up online. Same for latin expressions (where I get the additional help of photographic-memoried commenters!)
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