One argument that plain-English legal drafters often face when cleaning the cruft out of old contractual boilerplate is that the old language is somehow more "precise."

Take, for example, the familiar phrases "due and payable" and "null and void." They are so common that ordinary lay people bandy them about when trying to "formalize" a business arrangement.

Yet a quick look at the respective terms' definitions reveals that these are needless dualisms. The words mean basically the same thing.

Of course, give a clever lawyer two words and she'll argue that they have different shades of meaning. After long use, there will be a strong reflex against deleting "due and payable" and substituting the simple "due."

Which is why it is very refreshing to run across a legal opinion like this one every now and then. This judge not only "gets" plain English, he explains one of the reasons why legal English frequently uses two words where one will do. Here's how he smacks down a lawyer for trying to argue that there is a difference between "free and clear" and simply "clear" title.

"Monfort contends, 'Although a "clear title" is one that is not subject to any restrictions, the case at bar involved a "free and clear" title, which is the same as a marketable title.' So, according to Monfort, a free and clear title is worse than a clear title. Say what?

"Would that Harold had not lost the Battle of Hastings.

"Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

"So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here - an assertion that they somehow have different meanings.

"The Norman Conquest was in 1066. We can safely eliminate the couplets now....

"Nine hundred years later, courts in Ohio are still dealing with the consequences of the Norman invasion. We can only hope that some day logic will prevail over silly tradition."

Would that there were more judges like Judge Painter. And more lawyers that would think rather than merely ape what previous lawyers have always done.

Posted by: JohnL at 09:52 PM | No Comments | Add Comment
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Must read. (via Vodkapundit).

Or, for another thousand words, just look at the picture in the extended entry...
more...

Posted by: JohnL at 10:05 PM | Comments (1) | Add Comment
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Via James Taranto, I learned that the American Political Science Association will hold its annual convention in Washington, D.C. in just a few weeks. On the program is a panel discussion entitled "Is It Time to Call It Fascism?"

Do you think the good scholars will finally take an honest look at the parallels between the Ba'ath Party in Syria and the NSDAP in Germany?

Oh, don't be silly. The email forwarding the conference announcement states:

The panel, which is cosponsored by the Conference Group on Theory, Policy, & Society, the Latino Caucus, New Political Science, and the Women's Caucus, emerged from a question that Kathy Ferguson started asking last winter-spring (at ISA and WPSA) to focus on both substantive aspects and strategic/tactical ones: is there theoretical-definitional grounding to make a claim for the present US administration as fascist, and is it useful, critically, to use that language at this point in time? One of the original intentions was also to create a teaching tool out of this discussion--a handout that presents these questions and offers relevant information to students to think about it for themselves. (Emphasis added).

I would love to get my hands on one of those handouts. I wonder just how much they will encourage students to "think about it for themselves."

Here's a political science experiment: Establish how long a culture can survive philosophical poison like this.

Too bad we live in the experimental society and not the control group.

Posted by: JohnL at 09:41 PM | Comments (1) | Add Comment
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I note with some pleasure that John Hood, a contributor to National Review Online's Corner expressed exactly the idea I framed last week about "brain life" being a way to start to untangle the emotional mess around abortion.

Not surprisingly, the dynamic half of the dogmatic duo, Ramesh Ponnuru (the other half being the grammaticaly-challenged but equally dogmatic Katherine Jean Lopez) leapt into the fray to defend the life-begins-at-conception idea. He did acknowledge the possibility that there is a distinction between human "life" and human "personhood" and even gave a nod to the idea that the key issue in Hood's (and my) proposal is a functioning cortex, though he wouldn't want to go too far down that road.

An emailer to "K-Lo" then criticized the whole concept of "brain birth" as fetishization of the brain. The same mailer later stated through Lopez that (paraphrasing) defining humanity based on brain function would lead to harvesting organs from people in comas. This is typical emotionally-charged sentimentalism that the mystics use to oppose human cloning and embryonic stem cell research (e.g., likening the harvesting of stem cells from a blastocyst to carving up people for spare parts).

In any case, National Review's pundits have taken up the issue and there is a good deal of civil, well-stated discourse. Just click to Hood's original post and scroll up.

Posted by: JohnL at 11:01 PM | No Comments | Add Comment
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Most of the time around here, I try to avoid the sensitive issues of the day (which usually bring me little joy) and focus on the things that make my life fun to live: my family, music, science fiction, space, and many trivial little things that I find here and there on the internet. Of course, underlying all these is a strong appreciation for liberty together with the culture and legal environment that fosters my ability to enjoy these things.

One reason I really enjoy reading Stephen Green is that he seems to have a similar outlook on life as a joy to live. And, even though he tackles more political issues than I do, he does tend to avoid the hottest-button political issues. But in a late-night ramble tonight, he stakes out his position on three topics that tend to lead to holy wars: abortion, gun control, and evolution. So, lest I be dismissed as a lightweight, or at least as one too cowardly to state his views on the same subject, here are my thoughts:

Abortion: People's opinions on this issue are driven by their definition of human life. A mother has a right to liberty, which in my mind includes almost total control over her being. However, at some point before birth, a fetus becomes a human being. I tend to think "viability" is a bit of a red herring in the argument until the fetus is actually human. I believe human life begins (and ends) with a functioning (or not) human brain.

At some point around the end of the first trimester, the fetus' brain begins to exhibit steady brain-wave activity --call it "brain life" if you will. At that point, I think the the fetus' viability is more of an issue. I.e., since both the mother and fetus are now human, their rights must be protected. But the fetus is essentially parasitic on the mother's life. As long as the fetus remains non-viable, I think the scales tip heavily in favor of the mother's choice. And I believe that the balance always should tilt in favor of the mother's life (even if just a little) right up to birth. Based on the above, I also think that an anencephalic or gravely ill fetus could be terminated at any point before birth without any major ethical qualms.

Gun Control. Read the Second Amendment. Read it again. See what Steve said.

Evolution. It's just a theory. Yeah, just like special relativity or quantum mechanics. A very powerful predictive theory that underlies tremendous advances in biology and medicine. But "just a theory." Intelligent design and creationism are not theories, but beliefs. Much less powerful than a scientific theory. To be fair, I am intrigued by the anthropic principle (soft creationism, perhaps), as well as the need for an "observer" to collapse certain quantum waves (in theory), but do not think you can "prove" the existence of a creator. You have to believe.

One question for Steve, though: what about Apple versus MacPC???

Update: I made some edits to the above, which was pretty poorly-drafted in its original form. Even the title is pretty godawful, but I'll leave it as a monument to my incompetence. Just imagine that the title reads "Three Subjects to Avoid..."

Posted by: JohnL at 12:32 AM | Comments (4) | Add Comment
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