Search the Lounge


« In Memoriam: Robert Burt, 1939-2015 | Main | Don Weidner Stepping Down As Florida State Law Dean »

August 06, 2015


Feed You can follow this conversation by subscribing to the comment feed for this post.

Derek Tokaz

"The writer of this brief is himself a son of a confederate veteran, but believes notwithstanding in the sanctity of our constitution, as an able writer has said inspired almost by The Almighty on High."

I have no idea what I just read. Is this incomprehensible, or is there just some serious gardenpathing going on?

Alfred L. Brophy

Yeah, it could have been clearer. I guess in the era before word processing this doesn't surprise me. But thanks for asking about this. There's a lot to unpack about that brief.

The lawyer is saying that he's the son of a Confederate veteran and also that he believes that the Constitution is almost a divine document. The "as an able writer has said" part is, I'm guessing, an allusion to George Washington, but could have been to a lot of people, because the "Constitution was almost divine" sentiment was common in the 18th and 19th centuries. I wonder if the source for this might have been -- get this -- a former US general speaking in 1913 about the honorable service of Confederate veterans in an issue of the Confederate Veteran (a monthly magazine for Confederate heritage):

If that is the source, this links the Confederate cause and the US Constitution to the cause of property rights for African Americans. Holy cow Ralph Ellison would have loved this. And perhaps that wasn't such a bad strategy to use in arguing to the Oklahoma Supreme Court in the 1930s. (More about this in the next few days.)

But there's no particular need to think that the lawyer was lifting directly from that magazine article. The arguments about the centrality and importance of the Constitution were commonplace in the 1920s and 1930s and what this lawyer did was link support for the Constitution to the case for equal treatment/protection of property rights of African Americans. And he won, though not on the constitutional argument. The Oklahoma Supreme Court simply concluded that the restrictive covenant was improperly executed (I think that there weren't enough signatures).

There's some other very intersting stuff in that paragraph, too. He refers to waving the bloody shirt of prejudice. That's a reference to the argument that southerners complained about -- that Republicans waved a bloody shirt of a US soldier to stir support for Reconstruction. And here he's taking that reference and turning it to a very different use -- to talk about how those supporting the restrictive covenants are referring to race hatred. He uses the bloody shirt allusion to discredit racial prejudice. Pretty cool how he was turning these references on their head, I think. Finally, he uses language from the fifteenth amendment to conclude his call for protection of African American property rights.

Derek Tokaz


To go completely off-topic, I wonder if there are any studies regarding grammatical errors before and after the era of word processing. I had the exact opposite expectation, that before the ability to make edits people would have been more careful. Knowing that we can fix our mistakes lets us be a bit lazy, and then we don't actually go back and fix them, resulting in bad writing.

If you play video games, you'll know this is an increasing trend (and one that's getting a lot of complaints lately). Companies rely a lot on patches downloaded after the fact to fix bugs in the game. It's also pretty common with tabletop games to have an online FAQ fixing problems and adjusting the rules. Go back 20 years and I don't think you see this. All the bugs in Super Mario Bros need to be ironed out before the cartridge hits shelves.

I wouldn't be too surprised to see this creep into the legal arena either. Just look at the most recent ACA case and the Supreme Court's willingness to fix a mistake in the legislation.

Back to the point at hand though, if you like the strategy used in this argument you should read some speeches by Lincoln. He does the exact same move quite a lot. Rather than arguing that someone's principles are wrong, you argue that their principles require a different conclusion. Pretty good thing for every writer to have in his toolbox.

Alfred L. Brophy

I don't know of any study about this, but it's an interesting idea. Partly I think our culture has changed and is a lot looser, so that might interfere with a study about grammatical/simple sentence errors In briefs pre and post word processing. As you point out, we can fix errors later, often, so we probably are more willing to let errors ride with the idea they'll be fixed (even if they aren't). I'm guilty of that in blog posts, for sure.

I've noticed quite a few errors in judicial opinions in the pre-Civil War era, particularly as they relate to citations. In a non-negligible number of opinions and treatises from that era, there are incorrect citations. Enough that it poses problems for me tracking cases. That may also reflect that the original cases aren't available, so judges and treatise writers are relying on other reports of the cases.

Tying into key values -- but suggesting that there's another conclusion -- is a good strategy, for sure. Great if you can get people to go there with you. I think part of this lawyer's strategy was to turn to core property rights (with allusions to the Constitution) and then say in essence, "hey, I'm not any more a supporter of civil rights than the rest of you, but this is goes too far. The right of property shouldn't be violated here." Steve Lubet had the apt observation yesterday that this lawyer sounds a lot like what we now think Atticus was like.

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad