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Francis Pileggi on Corporate Law Blogging

Our friend Francis Pileggi, the managing partner of the Wilmington office of Lewis Brisbois and proprietor of Delaware Corporate and Commercial Litigation Blog, is interviewed by LexBlog's This Week in Legal Blogging video cast. Francis' blog is, of course, essential reading for those of us who labor in this vineyard.

The video cas offers an interesting discussion about how Francis melds blogging into his successful legal practice. Recommended.

My thanks to Counselor Pileggi for his very kind shout out at about 31 minutes.

A sentence too far?

So as I worked away at one of my current projects this am, I wrote this sentence:

Despite the nattering of effete academics and miscellaneous activists,[1] the opinion of the relevant legal authorities of the only state that matters is unanimous that [the law is X].

[1] [Citations to works by said academics and activists]

I thought about it a while and then changed it to:

Despite the nattering of effete academics and miscellaneous activists,[1] the opinion of the relevant legal authorities of the only state that matters is unanimous that [the law is X].

[1] [Citation to an article by somebody else that cites the works by said academics and activists]

I thought about it a while more and decide to search the Westlaw Lawrev database for "nattering": Used in just 63 out of all of those 1000s of articles.

Then I searched for "effete": Just 278 uses.

Then I searched for "effete academics": Zero uses. (I find that surprising.)

Then I searched for "effete /s nattering": Zero uses.

So I decided to let somebody else go first.

So I rewrote the sentence to say:

Despite the lucid arguments of many prominent academics and activists,[1] the opinion of the Delaware courts is unanimous that [the law is X].

[1] [Citations to works by said academics and activists]

Boring but safe. Sigh.

Decision making and decision-making versus decisionmaking

Once again, I have run into a law review that has adopted the convention of using decisionmaking as a one word unhyphenated noun and adjective. I hate to be pedantic about this, but the Chicago Manual of Style still says that decision making is an unhyphenated two word compound noun and a hyphenated two word compound adjective:

FWIW, Word's and Safari's spell checkers agree with me and the Chicago Manual. Granted, I used to use decisionmaking, but I have seen the light and now--like a reformed smoker--become an apostle for the correct usage.

 

 

Clarity is not the mark of a weak mind; Jargon is not the mark of a great one

I want to like John Finnis. I want to respect him as a scholar. But how can you do that when he writes stuff like this? I've read this paragraph about a dozen times and I have no idea what it means. I've considered and, perhaps predictably, rejected the possibility that I'm just too dumb to get it. I think he's just a bad writer.

 

Sadly, it's not the worst example of jargon I've seen in Finnis' work.

 

And don't even get me started on Oliver Williamson!

 

Clarity is a virtue! Taking the time to make sure that your meaning is accessible to bench and bar ought to be the goal, rather than obfuscating with impenetrable jargon.

 

Celebrities on the Oxford comma

My friend Bill Klein sent me this fascinating link. What surprises me is that some of these celebrities even know what the Oxford commas is (although perhaps they cheated).

Can I have WordPerfect 5.2 back?

I hate MS Word. It's overly complicated. It's cumbersome. It's unreliable. And I'm not alone in so thinking:

Today, it's become an overbearing boss, one who specializes in make-work. Part of this is Microsoft's more-is-more approach to adding capabilities, and leaving all of them in the "on" position. Around the first time Clippy launched himself, uninvited, between me and something I was trying to write, I found myself wishing Word had a simple, built-in button for "cut it out and never again do that thing you just did." It's possible thatthe current version of Word does have one; I have no idea where among the layers of menus and toolbars it might be. All I really know how to do up there anymore is to go in and disable AutoCorrect, so that the program will type what I've typed, rather than what some software engineer thinks it should think I'm trying to type. 

Word's stylistic preferences range from the irritating—the superscript "th" on ordinal numbers, the eagerness to forcibly indent any numbered list it detects—to the outright wrong. Microsoft's inability to teach a computer to use an apostrophe correctly, through its comically misnamed "smart quotes" feature, has spread from the virtual world into the real one, till professional ballplayers take the field with amateur punctuation on their hats.

Virtually all of the Word features I use daily were available all the way back on WordPerfect 5.2. Everything else is useless crap that has just made life worse. 

One more way Bill Gates has made the world worse.

Stephen Fry on Language

Delightful to both eye and ear, with a surprise ending. Thanks to BAA for the tip.

One space or two after a full stop?

In Slate, Farhad Manjoo takes up the contentious question of whether to leave one or two spaces after a full stop.

Two-spacers are everywhere, their ugly error crossing every social boundary of class, education, and taste. You'd expect, for instance, that anyone savvy enough to read Slate would know the proper rules of typing, but you'd be wrong; every third e-mail I get from readers includes the two-space error. (In editing letters for "Dear Farhad," my occasional tech-advice column, I've removed enough extra spaces to fill my forthcoming volume of melancholy epic poetry, The Emptiness Within.) The public relations profession is similarly ignorant; I've received press releases and correspondence from the biggest companies in the world that are riddled with extra spaces. Some of my best friends are irredeemable two spacers, too, and even my wife has been known to use an unnecessary extra space every now and then (though she points out that she does so only when writing to other two-spacers, just to make them happy).

Andrew Sullivan collects a few links on the topic, but he overlooked PB.com. We thoroughly hashed out this issue back in 2004 in connection with Rathergate:

How many spaces after a full stop?

Two spaces after a full stop?

Personally, I come down on the one space side of the debate. To be sure, I used to fall in the two space camp, but I retrained myself a decade ago or so to conform with the stylistic preferences of my case book coauthors. Not too difficult, especially with global search and replace to catch any slip ups. So it comes as a surprise that the otherwise estimable Megan McArdle brushes the issue aside with the dismissive comment that "it's not worth the effort to retrain myself." Nonsense. It just takes a bit of will power. Much easier than, say, quitting smoking (about which more in the next post).

I split infinitives. So what?

MS Word's grammar checker continues to annoy me. Today it seems to have a particular peeve with split infinitives (I suppose the problem could be that I'm splitting more of them than usual).

When I was a summer associate at the New York office of White & Case many years ago, one of the partners for whom I did a lot of work handed back a draft memo on which I had spent a great deal of time and asked me to spot and fix all the split infinitives. Being a cheeky lad, I sent her a xerox of the relevant page of The American Heritage Dictionary of the English Language, which states:

The only rationale for condemning the [split infinitive] construction is based on a false analogy with Latin. The thinking is that because the Latin infinitive is a single word, the equivalent English construction should be treated as if it were a single unit. But English is not Latin, and distinguished writers have split infinitives without giving it a thought. Noteworthy splitters include John Donne, Daniel Defoe, George Eliot, Benjamin Franklin, Abraham Lincoln, William Wordsworth, and Willa Cather.

Surprisingly, I nevertheless received an offer of permanent employment, which I ultimately turned down. In any case, I shall continue splitting as I see fit.

My voice is passive. So what?

Jacqueline Lipton:

Like many of us I'm sure, I'm currently (and diligently!) working away at suggested edits by various law journal editors.  In recent years, I've been very good about trying to avoid the passive voice in my drafts, but a couple of instances always sneak through.  And I usually wonder (as I redraft) why are we all so obsessed with active versus passive voice?  When I'm reading the work of others, I'm never particularly aware of whether they write in the active or passive voice or a combination of both.  But when did the "no passive voice" rule initially hit the law reviews, and what is its basis?  And do people think it affects your chances of a "good" placement if there's too much passive voice in the initial submitted draft?

Eugene Volokh:

...unwise editors often turn good general advice into a bad categorical rule. So it is here: "Generally avoid the passive voice" is good, "never use the passive voice" is bad.

In particular, if your discussion focuses more on the object than on the subject (the actor), it's often better to use the passive voice, which has a similar focus. If you're writing about the substance of the USA Patriot Act, for instance, the passive sentence "The Act was adopted shortly after the September 11 attacks" may be better than the active "Congress adopted the Act shortly after the September 11 attacks." The passive voice properly focuses the discussion on the Act, where you want it to be, rather than on Congress, which is not terribly relevant to your thesis. (Of course, if you were writing about Congressional decisionmaking related to the Act, "Congress adopted ..." may be exactly right -- but again the point is to choose the voice that fits what you want to emphasize, not to mechanically make everything active.)

MS Word claims that the bolded section of the following excerpt from my current project is in the passive voice:

In Grimes v. Donald, the Delaware supreme court identified three reasons for excusing demand: “(1) a majority of the board has a material financial or familial interest; (2) a majority of the board is incapable of acting independently for some other reason such as domination or control; or (3) the underlying transaction is not the product of a valid exercise of business judgment.” As to the first prong, directors are interested if they have a personal financial stake in the challenged transaction or otherwise would be materially affected by the board’s actions.

I say it's a perfectly fine sentence and trying to turn it into the active voice would make it less--rather than more--clear. But some frakking second year law review editor would probably try to do so.