Of course, other issues come up, such as further and farther, less and fewer, and who and whom — just to pick a few. Only a modicum. All right, with two l’s, versus alright, with one l — that’s 8:1, and all right, with two l’s, is winning. It’s 4:1 in printed books. There actually never has been. I became acquainted with you some years back, when your book Reading Law, which you co-authored with the late Justice Scalia, came out. On that book, I had 12 appellate-judge co-authors, including Judges Kozinski and Bea of the Ninth Circuit, and 10 other appellate judges — mostly federal circuit judges. There is a very interesting essay on between you and I or between you and me. Justice Scalia and I had been working hard on the second edition of Reading Law, and I’ve brought that to a close, but we’ll see what happens. Cases will often turn on that. A good usage book gives you a snapshot of the language as it is today. Now every judge is a textualist to begin with. They need some heavy-duty books. Now, am I going to say that my books need to be on every lawyer’s desk? And we try to be as precise as we can, but sometimes meaning gets clouded, despite our best efforts. You’ve been so prolific; books have been emerging at an unbelievable pace from your desk. If you’re going to make a good textual argument about the meaning of a statute, before you go to purpose or legislative history, you need to be savvy about the English language. Not even close. In January 2016, my 200-page Guidelines for Drafting and Editing Legislation came out under the auspices of the Uniform Law Commission. That was the real reason for the change. But you know, Fowler was saying to do that in 1926. We’re not to that point yet, though. Well, perhaps that will be a subject of another interview. So you can take almost any error — or supposed error — and put it on that graph and figure out what stage it’s in. I look forward to seeing that book, and whatever else you do in this field! That sounds like something that will be very interesting to our readers of the law section. But of course, it took a major push to bring it to press. I didn’t even know about the other two until now! He is also an adjunct professor at UCLA’s Herb Alpert School of Music teaching on the law and the music industry and the Legal Affairs editor for LARB. So there’s a kind of compendium on English usage in the Chicago book, and then it covers punctuation in great detail, as well as all kinds of linguistic terminology at the end of the book. “Home in on” arose in World War II as a bombing-mission term, homing in on the target and hitting home. A lot of the most influential grammarians over the ages have been lawyers. But it’s just a pile of prepositions. It’s about a child named Bertie, and it’s about English usage and grammar — but it’s for children aged eight to 15. No. JULY 14, 2017
BRYAN A. That’s what usage guides deal with. You can! But we have nothing but words. There’s a problem with that too, though: the canon against surplusage. Fowler is my hero, and someone I’ve sought to emulate in my writings on English grammar and usage. I think it is not quite the vox populi because the data is drawn from published books. But every judge looks first at the text. I’m writing a children’s book called Bertie Gets It Right. In the Chicago Guide to Grammar, Usage, and Punctuation, I actually reproduce a lot of graphs showing the lines of what, over time, diachronically, the predominant usages have been. I’m constantly writing new editions of books. Some judges say, “We look at the text first,” and then they go far afield and consider all sorts of other things. But I also think lawyers need to be very savvy about how they use language. But just speaking about the two we have at hand, Usage and Grammar and Punctuation, you mentioned Fowler’s, which of course is the usage book we all grew up with. You can look things up, and it’s got links to other entries. Starting with something like Fowler’s great work on usage, you went on to write Garner’s Modern English Usage. But you’ll find that professional editors most likely won’t approve of it. Somehow in talking to you, a phrase from a Morris Bishop poem came to mind, which has somehow stayed in my memory all these years: “And yet I wondered, ‘What should he come / Up from out of in under for?’”
That’s very good. That sounds fascinating. Words are the only tools lawyers have. At the moment, I would call it stage three or four. Split infinitives would be mostly five. Bringing Google into it, and other resources …
I’ve worked a lot over the years with the Google legal department, and Google licensed me to use their Google Books corpus in the form of ngrams. I think the current ratio in print is 3:1 in favor of “home in on” versus “hone in on,” but at some point, the common oral usage will hold sway, and we’ll say that it began as a mistake but now it’s good English. So it seems to me that lawyers, as the most highly paid rhetoricians in the world, ought to know how to use standard punctuation. Now here’s another hot topic. Having published over 20 books on law, language, and good writing, he has few, if any, peers in the field. Of course, since this is the legal section, I am drawn back to ask: Are these books that should be on every lawyer’s desk? An example would be “home in on the problem.” The whole history of that phrase is about homing devices and homing pigeons. But you’re right. Now, the Chicago book is primarily a book on English grammar. Well, one of the principles Justice Scalia and I wrote about in Reading Law is the punctuation canon. Garner’s Modern English Usage is the fourth edition of a book that was amplified a great deal in this edition and renamed by Oxford University Press. We should add them to our list to discuss. I think I have 20 to 25 books in print, including my course book. Recently, Professor Garner sat down with LARB’s Legal Affairs editor, Don Franzen, to discuss these two volumes, Garner’s work on usage and grammar, the interpretation of contracts and statutes, and why good writing is the sine qua non for good lawyering. Ever. That, too, can cause problems. He, by the way, was the mentor to John Jay, who would later become the first Chief Justice. Would you like to hear about the other two published last year? Justice Scalia and I are … (I can’t even use the past tense in reference to him. If this fails, then we have that one to fall back on. At stage five, it’s universally accepted, and the only people objecting to it are eccentrics. Judges quite justifiably look at punctuation. Judges will assume that every provision has a purpose, that every word carries meaning independent of others. But it’s a common shibboleth you hear from time to time. Now, it’s true that a non-predominant form, or what I would say is the form to avoid, probably appears often even in those sources — in, say, dialogue or reported speech, where you would expect fiction writers to choose the form that is not necessarily recommended in good, edited English. But gradually that linguistic virus spread, and I’d guess that today probably 80 percent of Americans say “hone in on,” and they confuse it with sharpening in on a point. I haven’t gotten used to that yet.) We’re textualists, and we believe in the primacy of the text. Virtually everyone who has written professionally on English usage has said that sometimes you need to split the infinitive. Thank you, Bryan, for being a guardian of good usage and grammar, and I thank you for your time today. What were you looking to add to the literature that wasn’t already covered in other books on English usage? Sometimes you see the lines cross and see that what used to be the predominant usage is no longer predominant. But in these two books now, you’re trying to give some instruction on how to write well. The Chicago Guide to Grammar, Usage, and Punctuation was 12 years in the making, and just happened to come out this last year. But generally speaking, in most forms of mathematics, there is one answer and that is the answer. Doctors have imaging equipment, all kinds of chemical tests, lots of different gadgets they use. These are huge works. No previous lexicographer had this tool at his or her disposal, and I have found it enormously useful. It shows how to draft and edit statutes, and has about 400 statutes from all over the United States — every state in the country, plus a lot of federal statutes — rewritten in plain English. They look at commas; they look at semicolons. It does that very systematically in a way that Modern English Usage couldn’t. But Google’s corpus is so wonderful because it’s not just the vox populi, it’s not what people say; it’s what book editors, book publishers, and book authors have consciously chosen over the last 250 years. It’s very similar to the quote often attributed to Winston Churchill, “That’s the kind of arrant pedantry up with which I will not put.”
Somehow we understand that, and it makes sense to us. It seems a bit antiquated, but it’s quite fun to read. It’s half the price of the book, and it’s available on iTunes now (with an Android version coming soon). Well, 2016 has been the biggest year of my publishing life. In law, we are working with words. His mentor in the practice of law was Oliver Ellsworth, the third Chief Justice. What does the statute say? So the linguistic virus has spread. But is that a good way to settle issues of grammar and usage? To me, it’s no surprise that the father of English grammar was a lawyer — a New York lawyer who left New York to go to England and left his law practice. Between these two books, your Guide to Grammar and your Modern English Usage, certainly there is some overlap. My book on English usage probably contains three times as many entries as Fowler’s Modern English Usage, but it’s still very Fowlerian. Is it vox populi, vox Dei? The only people making that mistake, you would say were not well read. Garner is the president of LawProse Inc. In that book, you were collecting rules for interpreting legal texts. Both the chief lexicographer and the chief grammarian of English have been lawyers. I continue to take a pretty hard line on danglers, but dangling participles have been common for a very long time. Language changes. And that book has probably occupied more of my time than any other in 2016. But the coverage has always been broader than just American usage. Well, that’s another superstition: the idea that you should not end a sentence with a preposition. and Distinguished Professor of Law at Southern Methodist University Dedman School of Law. Thank you, Bryan, very much for taking some time to talk with me. So it’s kind of like having redundancy in a machine or engine. And two words. What does each book cover that the other doesn’t? Words are our tools, as lawyers. Actually, I’m not going to say that because I have a modicum of modesty. Garner’s Modern English Usage — the whole 1,100-page book — is now in an app. But here you’re looking at how usage and rules are evolving over time, within some parameters of what is understood to be proper English. All of which makes the book quite different in presentation from the Oxford book. I think you’re going to have a new licensee very soon. If this were a visual interview I would be holding them up as Exhibits A and B. Of course, the language was continuing to change and evolve, and nobody else was writing with those authors’ particular mindset — for all kinds of reasons, one being that the structural linguists had pretty much taken over the field of language studies, and the idea that you could have prescriptions about good writing or good use of language was increasingly passé. The most literate readers and writers continue to say “home in on,” but common usage is “hone in on.” Ultimately, that will probably be good edited English, and it will be a stage-five usage. Can you talk about that? But I think I am due for a rest. And that makes no sense to me because I’ve always thought that lawyers ought to be to writing what professional golfers are to golf or NBA players are to basketball. The other one is a 940-page treatise called The Law of Judicial Precedent. I commend you for saying that. I agree. Well, I’m very Fowlerian in my turn of mind, but the big change I’ve added to the literature on English usage is an overlay of empiricism — that is, I’ve placed a greater emphasis on how the language is actually used. It’s covered English usage, and in the fourth edition I’ve even broadened the coverage to World English. I looked at those graphs and found them really fascinating. GARNER: Glad to be here. So there is nothing inherently wrong with a split infinitive. And the only reason for American in the title of the first edition was that Robert Burchfield had just come out with Fowler’s Modern English Usage, third edition, and Oxford didn’t want my book to compete with Fowler’s. But I refuse to declare them stage five. About 10 years after that phrase became common, some people started saying “hone in on.” It began as a mistake, and probably the first people making that mistake were not well educated, probably did not graduate high school. It came out in October. But that’s kind of accidental in a way. But more to the point, he is the author of several monumental books published this past year, 2016 — one being The Chicago Guide to Grammar, Usage, and Punctuation, published by The University of Chicago Press in May, and another being the fourth edition of Garner’s Modern English Usage, published by Oxford University Press in April. But I do think that lawyers need some books on language and writing, absolutely, and that they need to pay attention to these matters. In fact, if you asked a professional copyeditor to look at a brief — even one written by a lawyer at the most reputable firm — the editor would find punctuation errors in virtually every paragraph. These are really fascinating because, as you say, here is some actual empirical data to look at, instead of one editor’s opinion. The reason you see contracts saying seemingly the same thing over and over and over again is that lawyers are trying to cover every possibility. ¤
DON FRANZEN: Among other accomplishments, Bryan A. Can you talk about that? What’s next? You just mentioned something very intriguing about both your books: that you actually resorted to big data to determine how words are used. Yes. Lawyers need heavyweight books on language, and they need books by several authors if they’re going to be able to make good textual arguments. GARNER IS among the most prolific and respected arbiters of grammar and usage in the English language. So dangling participles are probably stage three or stage four. So it’s kind of an arrant error. This is an interesting way of looking at it because I think some people with extreme viewpoints would say that grammatical rules are an effort to fossilize language, which is a living, breathing thing that keeps changing. What is the overlap, and where do they depart? At stage three, it’s very widespread, but the most careful, educated refined users of English don’t use it. And that typically comports with what we think of as good English. So it seems to me exceedingly important that lawyers know how these things are done. ¤
Don Franzen is an entertainment lawyer based in Beverly Hills. And the popular vote! And if we are using the tools imprecisely or inelegantly, we get into trouble. Modern English Usage is an alphabetically arranged usage guide that is 1,100 pages long and has great detail on every little problem point in the language. I don’t include every word in the language — only the problem points. But I’m able to use big data to buttress the judgments — and to really tie linguistic prescriptions to how edited English actually appears in print. The first three editions were Garner’s Modern American Usage (actually, the first edition was A Dictionary of Modern American Usage) — but it was always a book on English usage. Strunk & White is a 90-page primer. That’s quite false, and no reputable grammarian has taken that position ever really. Thank you. If there is a problem point in the language that I haven’t discussed in Modern English Usage, then I intend to cover it in the next edition. But the Chicago book does have a chapter about English usage that covers at least the basics in probably 80 pages. And, we don’t have equations like mathematics, where usually a clear answer comes out — unless you’re dealing with quantum equations! And you can register changes over time. So to me, it’s all part and parcel of what lawyers do and ought to be doing. And I think that’s very useful, because if it’s a stage-four misusage, it’s not so very serious. I’ll have a lawyer come to me saying he has a case involving the endorsement of a check, and on the pay line it says “this person/that person.” What is the meaning of that slash? I have devoted about seven months of this year to trying to perfect the app so that it’s as error-free and user-friendly as possible. That’s one reason why in Modern English Usage I give stages to language change. So, to any user of it, if you think there’s a word or phrase that presents a problem for editors and isn’t discussed, then I would want to hear about it for consideration for future editions. There was a time when they were closely competing. These things matter a great deal. I still have a well-worn old version with a gray dust jacket dating back to the ’60s, I think. Where would split infinitives be on the scale of one to five? Fowler and his brother, in the King’s English in 1906, were saying that the prohibition is quite misplaced and is a kind of linguistic superstition. At the same time, the chief lexicographer was Noah Webster, who was also a lawyer. Last year was a particularly productive one for Garner, with the publication of two major works, The Chicago Guide to Grammar, Usage, and Punctuation and the fourth edition of Garner’s Modern English Usage. So that’s something new in English usage. How would you justify a resort to empiricism as opposed to sticking to rules? How did you manage to bring out two large-scale works on the English language in one year? It’s 1,100 pages. You would never find an NBA player saying, “I don’t need to know how to dribble, do I? I suppose both books have been coming for quite some time — many years in the making. I think that’s no surprise at all because lawyers should be obsessed with language, grammar, usage, and these kinds of questions. So it’s a chapter book, and it deals with every phase of English grammar, all the parts of speech. I’ve always tried to be empirical; I’ve always used databases to back up my judgments and to be sure that I was within the mainstream of English usage. I enjoyed leafing through Modern English Usage, though I have to confess I did not read the entirety of it. And dangling participles? So I continue to update my books. I think no professional editor would want dangling participles to survive in a manuscript. They’re different types of books. For example, I see that a historical has won out over an historical. You might say it’s for people from eight to 99. It just happened that they both came out in 2016. But I leafed through it and looked for the sorts of things you covered. By 19, I had pretty well committed to memory four usage books: Usage and Abusage, Fowler, Theodore Bernstein’s The Careful Writer, and Wilson Follett’s Modern American Usage. BRYAN A. Fowler, Partridge, Bernstein, and Follett had to guess about what they thought was the predominant usage for a given linguistic problem. There are five stages: at stage one, a usage is rejected — it’s simply not good English; it’s widely rejected. How do grammar, usage, and punctuation fit in with the practice of law? At stage two, it’s widely shunned — some people do it, but it’s still not considered good English. In fact, just about every lawsuit ends up being about what a contract or a statute meant — which means that either it was expressed less than perfectly to begin with, or they forgot to think of some eventuality. You can use these ngrams to compare competing usages and find out what choices publishers have made over the last 250 years. I had pretty much memorized everything in Fowler’s English Usage by the time I was 17 — and everything in another book, by Eric Partridge, Usage and Abusage. Even the father of English grammar, a man named Lindley Murray (a New York lawyer who emigrated to York, England, after the revolution, wrote a book on English in 1795, and became known as the father of English grammar), had a habit of dangling his participles — even in his book on grammar. Winning the electoral college there for sure. And it’s about the way we use language and the most common mistakes that children and others make, and how the way you use language affects the course of your life. But mostly it’s a book on English grammar — both traditional and transformational grammar, and there is a whole chapter on sentence-diagramming. Now do most briefs follow standard American punctuation? Punctuation can affect the interpretation of a document, and ought to. What are you working on now? That’s something that’s way below my pay grade, dribbling.” Dribbling cannot be below a professional basketball player’s pay grade, and punctuation cannot be below a lawyer’s pay grade. So I can split my infinitives now? If you try to say the same thing several times, the judge will probably say you’re trying to say something different each time, and that can be a problem. At stage four, it’s all but universal, but some sticklers avoid it on good, principled grounds.