A Punctuation Conspiracy

Law professor Eugene Volokh, of the eponymous blog The Volokh Conspiracy, posted today on punctuation rules. A self-described “descriptivist,” he writes that “descriptivists don’t deny there are rules — they just say the rules are dictated by “the will of custom, in whose power is the decision and right and standard of language.” He then goes on to discuss one of the two punctuation rules that befuddle my writing students throughout the semester–be they freshmen or seniors:

1. Place commas and periods inside quotation marks, e.g.,

The Court’s answer to this was “no.”

Seems simple enough, but it’s apparently not. I’ve stressed this little rule semester after semester, and yet . . .

This rule has a corollary:

2. Place all other punctuation marks outside quotation marks, unless they are logically parts of the quotation. I have seen some departures from this where semicolons or question marks are involved, but my sense is that those departures remain rather rare exceptions in modern legal publications.

The Court’s answer to this was “no”; but two years later, the Court changed its mind.
Was the Court’s answer “yes” or “no”?
The Court’s response was, in essence, “Says who?” [The question mark is logically part of the quotation.]

For what it’s worth, I’m a repenting prescriptivist.

Court or Steamroller? When Rights Conflict

I don’t care which side you are (were) on in the recent outcry over Arizona’s SB1062, but I assume you are interested in the facts of what the bill did and did not do. From what I’ve read, the bill was badly misrepresented. And in the process, its proponents were labeled haters and homophobes, while Jon Stewart called the bill repugnant–even though SB1062 did not even mention same-sex marriage or homosexuality and even though it essentially copied laws that are already on the federal books and on the books of 18 states.

In fact, the proposed law would have come into play if, say, the government attempted to force a small business to provide birth control. It would have applied to a government’s attempt to compel a business to pay for abortion services for its employees. If you can think of a case where the government–state or federal–might impose a burden on someone’s sincere religious belief, the proposed law would apply. Yes, it could have come into play had a baker refused to bake a cake for a same-sex wedding.

But the bill WOULD NOT have decided the case. The bakery would still have to pass GO. The owner would still have to demonstrate that he or she was acting out of a sincere religious belief. The same-sex couple would still be able to argue that the baker’s belief was less than sincere and did not justify refusing them service. And a court would ultimately have to decide between the two parties—based on the rules set out in the proposed law. In other words, the bill did not create an exception, so religious people could discriminate willy nilly. It simply sets the standards by which a court would adjudicate such a case.

Don’t believe me? Here, for your reading pleasure, is the best description of the proposed law I’ve read. It’s written by 11 prominent law professors, some of them Republicans, some Democrats; some of them support same-sex marriage, some don’t. Nine of them felt that Gov. Brewer should have signed the bill. Two were unsure. Among the 11 are Mary Ann Glendon of Harvard and Michael McConnell of Stanford, two of the brightest lights in the legal academy.

You can read what they wrote at the link–without any filtering by the press or Comedy Central or by me. The following are three key paragraphs:

SB1062 would amend the Arizona RFRA [Religious Freedom Restoration Act] to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger. (Emphasis supplied)

A few paragraphs later, the 11 law professors summarize the bill’s impact as follows:

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision. (Emphasis supplied)

Did you catch that? Those who are refused service by a business can still sue. Those who are sued can assert the defense of sincere religious practice. And the courts get to sort it out–just like they would have done prior to the bill becoming law. The only difference is that the evidentiary rules governing that courtroom exercise would be codified.

And that’s repugnant? My eye.

Cross posted to PartialPosts.com.

Sexist Language Police Abuse Author of Charlotte’s Web

One of my favorite essays on writing is E.B. White’s  essay “Will Strunk” that first appeared in The New Yorker on July 27, 1957, according to Wikipedia, and later as one of the many essays that made up the Essays of E.B. White, my first introduction to the great stylist. A slightly different version of the essay later became the introduction to Strunk and White, The Elements of Style, White’s revision and update of Strunk’s “little book” by the same name.

White revised the essay a bit with each edition of the book. In the first edition, the essay begins,

A small book arrived in my mail not long ago, a gift from a friend in Ithaca. It is The Elements of Style, by the late William Strunk, Jr., and it was known on the Cornell campus in my days as “the little book,” with the stress on the word “little.”

In the second edition, the first paragraph of the essay begins differently and ends on a new note of information:

At the close of the first World War, when I was a student at Cornell, I took a course call English 8. My professor was William Strunk, Jr. A textbook required for the course was a slim volume called The Elements of Style . . . It had been privately printed by the author.

The third edition begins like the second. It’s not until the 4th paragraph that White revises the essay, telling readers what changes they’ll find in this new edition. He even  admits that some

amplification has reared its head in a few places in the text where I felt an assault could be made on the bastions of brevity . . .

And this was all fine and good because E.B. White was in control, and it was his essay after all. But then came the fourth edition, the teal and silver version, where the sexist language police took over and revised the “little book” to include a

light redistribution of genders to permit a feminine pronoun or a female farmer to take their places among the males who once innocently served [White].

Fair enough. I’m all in favor of feminine this and thats, female doctors and department chairs. But, dear editor, in that introductory essay, please step away from the feminine gun and let classic essay live on, just the way White wrote it. Sadly, the editors didn’t ask my opinion, and hogwash ensued.

Here is the offending (and my favorite) paragraph as it originally appeared in The New Yorker and as it was repeated in the first three editions of White’s version of the “little book”:

All through The Elements of Style one finds evidences of the author’s deep sympathy for the reader. Will felt the reader was in serious trouble most of the time, a man floundering in the swamp, and that it was the duty of anyone attempting to write English to drain the swamp quickly and get his man up on dry ground, or at least through him a rope.

The image is perfect, the lesson important, and both stick in the reader’s mind–at least they have stuck in mine. They’ve stuck so firmly in my mind and helped me so much in my writing that I read that short paragraph to my writing students each semester in the hope of impressing those same lessons on their minds. But there are a couple of problems with that paragraph, problems that apparently bugged the sexist language police. Did you spot them?

All through The Elements of Style one finds evidences of the author’s deep sympathy for the reader. Will felt the reader was in serious trouble most of the time, a man floundering in the swamp, and that it was the duty of anyone attempting to write English to drain the swamp quickly and get his man up on dry ground, or at least through him a rope.

A man. His man. Him! As a general rule, we want to avoid sexist nouns and pronouns. We want both male and female to be represented on the printed page. We want the dear reader to know that women can be doctors and men nurses. As a father of two daughters, grandfather to soon-to-be three granddaughters, and father-in-law to two daughters-in-law, I agree with that proposition. But every time and always? Is there never an exception to that dictate? You be the judge. Here’s how that formerly great little paragraph appears now in the fourth edition, the one edited by someone with a tin ear. See if you can catch the changes.

All through The Elements of Style one finds evidences of the author’s deep sympathy for the reader. Will felt the reader was in serious trouble most of the time, floundering in the swamp, and that it was the duty of anyone attempting to write English to drain the swamp quickly and get the reader up on dry ground, or at least throw a rope.

“Man” is gone. “His man” is no more. “Him” is a mere memory. And to what effect? In the original version, White compares the reader to “a man floundering in the swamp.” In the new version, that comparison is gone. Instead we have the reader compared to a reader, albeit, a reader floundering in the swamp. No wonder s/he’s floundering. Put the book down for  hell’s sake, at least until you get out of the swamp! Who reads in the swamp anyway?

And if you–the person attempting to write English–can’t manage to drain that swamp, the revised version advises you to simply “throw a rope”! To whom? a careful writer might ask.

The editor attempting to revise the English in the fourth edition apparently felt it was better to bow to the sexist language police than to make sure that you–the writer–throw the rope in the general direction of the reader, the one floundering in the swamp, the one with the book in his or her hands. (And how is s/he going to catch the rope, book in hand and all? The problems with this passage mount.)

To make matters worse, the editors of the fourth edition failed to mention that they had changed this timeless essay to reflect their preferences rather than White’s. In fact, in a footnote at the bottom of the first page of the Introduction, they essentially lie to the now floundering writer, “E.B. White wrote this introduction for the 1979 edition.” That statement is wrong on so many levels, I won’t take the time to list them.

But I will take some liberties with the text. If the editors care so little about White’s essay, I figure it’s ok for me to tell you–my readers–to buy the “[third edition of] the little book” rather than the fourth and to remember this lesson: Cultivate an an ear for sexist language, but don’t be a mindless slave to the idea.

Edited to improve flow and clarify.

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