by Barry Goldman
The term legaldegook appears to have been coined by Bryan A. Garner. He is the author of several books on language in general and legal language in particular. Garner co-wrote a book with Antonin Scalia called Reading Law: The Interpretation of Legal Texts. He is a leader in the plain English movement. The idea there is that legalese unnecessarily complicates things. If we could scrape away the legaldegook and get down to bedrock, simple language, the theory goes, the law would be clear and understandable, and everyone would be happier.
This is partly true. Legal language is often ridiculously complicated. It’s fun to come up with examples. Garner and his colleagues used to publish The Legaldegook Awards for particularly egregious passages. Here’s one winner:
No savings and loan holding company, directly or indirectly, or through one or more transactions, shall … [a]cquire control of an uninsured institution or retain, for more than one year after other than an insured institution or holding company thereof, the date any insured institution subsidiary becomes uninsured, control of such institution. 12 C.F.R. § 584.4(b) (1989)
This is obviously gibberish. And it is equally obvious that it would be a good idea to reduce the amount of gibberish in the Code of Federal Regulations. But the overall theory is false. The sad truth is there is no bedrock. Beneath the confusion there is only more confusion. It’s legaldegook all the way down.
From time to time, legal scholars acknowledge this. The great Lon Fuller wrote:
Formal legal principles of interpretation… tend to come in offsetting pairs. One can find a maxim according to which when you say “trees” you must mean shrubs also, shrubs being so much like trees. By another maxim one can argue that when you say “trees” you must mean to exclude shrubs because if you had meant shrubs you would have said so; shrubs being so much like trees, and so naturally suggested by them, you couldn’t have forgotten about them when you said “trees” and stopped.
I have written both decisions many times myself. I have said “the drafters know how to say X. They said it in Article 1 and Article 2. If they had meant X in Article 3 they would have said it there too.” And I have said, “The purpose of Article 3 is clear from the context. The drafters clearly intended to prohibit Y and Z. To prohibit Y and Z and at the same time to allow X would defeat the obvious purpose of the provision. As a matter of simple logic, that cannot have been the intent of the drafters.”
My point is, you can scrape away as many layers as you like, ultimately someone is going to have to make a determination about the meaning of the language in a legal document. It is not going to interpret itself. In particular, legal language is not going to present itself clearly and simply when there are lawyers getting paid to make it appear complicated. Yes, there are rules that can be applied to the interpretation of legal language. Many of those rules are in Latin, which gives them the appearance of ancient gravitas. But as Fuller said, they come in offsetting pairs, and there is no rule about which rule to apply.
Here is another example. There is what is called the plain meaning rule. According to this rule, if language in a legal document, a contract say, is clear and unambiguous, it is to be applied according to its clear and unambiguous meaning. Even if it is silly. There is no law against parties entering into silly agreements. Legally competent parties have the right to enter into whatever silly agreements they like. On the other hand, there is a rule against absurd results.
If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).
So which is it? Are statutes and contracts to be “construed” according to their clear and unambiguous meaning or are they to be construed to avoid absurdity?
The immortal Fred Rodell discusses a closely related point in his classic, Woe Unto You, Lawyers:
Any judge, engaged in deciding a dispute over an alleged business agreement, knows that if he pushes the buttons marked “offer,” “acceptance,” “consideration,” and a couple of others, the answer will come out – valid contract. But if he pushes the “no offer” button or the “no acceptance” button or the “inadequate consideration” button, the answer will be – no contract. It is just as simple as that.
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But the machine of The Law does not tell the Court which button to push.
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Thus, the layman who would have defined Consideration as what there is when a court upholds a promise and what there isn’t when it refuses to uphold a promise is absolutely right. Consideration – and every other so-called concept or principle of the law – amounts to a vague legal way of stating a result, applied to the result after the result is reached, instead of being, as the lawyers and judges stoutly pretend, a reason for reaching the result in the first place.
Again, I have written decisions on both sides of this question many times. How do I do it? I use my judgment. I apply my years of experience. I consider the evidence and the arguments and the context. I apply the relevant precedents. I weigh the equities and balance the interests. In other words, I MAKE SOMETHING UP. And then I try to construct an award that makes it appear my decision was compelled by the facts and the law.
In many cases, reasonable people of good will, with nothing to gain or lose, who are trying their best to do the right thing could come out either way. It is a deeply flawed system. But it works, more or less, in the context of labor arbitration at least, for a few reasons. It works because the parties have confidence that labor arbitrators are genuinely neutral. The system depends on the parties’ mutual selection of arbitrators, mostly one case at a time. “Permanent” panels also exist, but they are permanent only so long as both parties agree. An arbitrator who showed bias in favor of one side or the other would quickly cease to be selected.
It works because we hold hearings, listen to testimony and argument, read briefs, and explain our reasoning. The losing party in an arbitration will seldom be convinced that the arbitrator got it right, but he must at least be able to see how the arbitrator reached the result he did. An arbitrator who failed to produce plausible arguments or failed to produce any argument at all in support of his decisions would simply cease to be selected. The same is true of an arbitrator whose decisions were unreasonably delayed.
And the system works because it has to work. Disputes need to be resolved. The shop can’t function if nobody knows whether Jones is fired or not.
Lawyers advocate. That’s their role. The lawyer whose advertising says, “Just Because You Did It Doesn’t Mean You’re Guilty” is telling the truth. There is a difference between what actually happened on the night in question and whether the prosecution can prove beyond a reasonable doubt that the accused committed the crime. That lawyer is saying, “Give me your money and I will flood the zone with so much legaldegook that the jury will be unable to convict.” Fine. That’s the system we have. That’s her job.
But a judge is not an advocate. A judge’s job is not to flood the zone. It is the opposite.
And that is what is so deeply disturbing about the Supreme Court majority and its abuse of the emergency docket. These are people with lifetime appointments. We can’t decide not to select them. They are riddled with conflicts of interest. They have shown an eagerness to time their decisions to benefit their political co-religionists. They no longer even bother to hold hearings or to justify their decisions. And they are deep in the tank for Trump.
The system has muddled along for 250 years. It is unclear whether it will survive the next three and a half.
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