Law in Contemporary Society
Eben made many corrections on students' papers involving number-agreement. For example, "Why does everyone ignore their passions?," as opposed to, say, "Why does everyone ignore (his) / (her) / (his or her) passions?"

I was curious what Eben and others had to say about this construction. Unlike a mere typo, this construction comes out in people's papers because it's common in colloquial speech. But more than that, I would say that it has now achieved a status of sounding correct to native American English ears. And I would even go so far as to say that it is close to having achieved a "correct" status in written English prose, if it is not there already. Eben clearly disagrees with this proposition. My questions are: 1) Is the construction "wrong" in formal writing?

2) If it is "wrong," is it close (say, a decade or two away) from being right, as a result of natural evolutionary tendencies in language?

3) As lawyers, or even as professionals in general, are we well-advised to write conservatively, with traditional rules of grammar ("up with which I will not put"), or will it be considered sloppy (and make us seem illiterate, as Eben says) to push some of these rules toward what seems to be their natural dissolution, in our own writing?

-- MichaelBerkovits - 19 May 2008

I cannot speak for Eben, but personally think that he is generally right. Even if the construction is not "wrong" in colloquial English, it is distracting for the more conservative readers. Put it this way - you could write with informal solecisms and put off half your readers, or you could write with elegant style and "conservative" grammatical constructions and not put off any readers.

Writing almost always lags behind oral linguistic innovations. Natural evolutionary tendencies in language are sometimes slow and other times rapid, as well as sometimes random and other times deliberate. I wonder whether the "everyone" and "their" construction is a result of the gender faux pas in using "him" as the default singular neuter pronoun. We have the neuter subject pronoun "one" but no corresponding neuter direct object pronoun. That asymmetry may explain the recent outburst of confusing our grammatical numbers to keep our genders neutral.

It seemed evident to me that Eben's critical generalizations of a writer's literacy in response to a grammatical error were intentionally exaggerated. The harsher the criticism, the more scrutiny in the revision and future drafts. That said, I think it would be sloppy because any writer must keep his audience in mind when composing a written piece. If your reader is a judge, write for a judge; if a reader of McSweeney? 's, then strap on your literary flare.

-- JesseCreed - 19 May 2008

As you pointed out, Jesse, a major reason for this sort of number-disagreement in educated writing is the reticence to use the word "he" or "him" as the neuter (in order to avoid sexism), coupled with the terrible awkwardness of "he or she" or "him or her." You also correctly point out that some readers, perhaps many, are put off and "distracted" by number-disagreement.

However, it's interesting to note that one accepted solution to the "male pronoun as the neuter" is to use the female pronoun instead. For example, "When a judge writes an opinion, she..." But this solution, which is both anti-sexist and acceptable to "conservative" readers, actually makes for distracting reading for many people. When I'm reading along and come across sentences like those, it's momentarily unsettling - because it disrupts the default mental state of assuming that anyone mentioned in prose who is not obviously female is male. The fact that this is the default mental state for me is unfortunate, and is indicative of our sexist cultural past (and, hopefully to a lesser extent, present). But I know it's like that for many other people too; otherwise the following children's riddle wouldn't work:

A father and his son get into a terrible car accident. They are taken to separate rooms of the hospital. The doctor in charge of the boy looks at him and says, "I can't operate. He's my son." How is this possible? Answer: The doctor is the boy's mother.

My point is that there are problems with all of the possibilities for the neuter. The male neuter is sexist; using the female neuter or switching between the male and female neuter can be confusing and distracting; saying "he or she" is awkward; and using "they" or "their" causes number-disagreement.

I happen to alternate between the male and female neuter in my own writing, because I understand that number-disagreement is unacceptable to many readers, including most of the important ones (e.g., judges, lawyers, professors). But I'm trying to suggest not that we should have number-disagreement in our writing (because that's distracting), but rather that the pronoun "they" is steadily gaining a secondary grammatical identity in which its grammatical number is one, in constructions like those we've been discussing. Writing lags behind oral linguistic innovation, as you say, but in this case the oral innovation happened long ago and my impression is that it is close to becoming acceptable in writing, as well. This is what I was soliciting agreement or disagreement with (to appropriately end this post with a sentence ending in a preposition).

-- MichaelBerkovits - 19 May 2008

I hope your prediction turns out to be correct, Mike, and "their" and "they" take on second meanings as singular gender-neutral pronouns. While I know it is incorrect to use "their" or "they" as singular pronouns in formal writing (and I do try to catch myself, though often unsuccessfully) in casual writing and speech I use them that way all the time. It definitely sounds awkward to me to use "one," "someone" or "a person" and then get stuck with the "he or she." I also tend to use "she" as a neuter or flip back and forth between "he" and "she," but I agree that it reads a bit unnaturally as well.

As a sidenote, in trying to write this post my shaky grasp of grammatical rules has become painfully clear. It's interesting (and disconcerting) that I've learned the grammatical rules of the other languages I've studied, but always just played it by ear in English.

-- ClaireOSullivan - 19 May 2008

I think the general question of avoiding gender bias in grammar is based on mistaken premises. In the first place, it's only because English is so weakly gendered that we even consider identifying grammatical gender with human gender. French feminists worry about the question of justice for women just as urgently as we do, but they don't identify the gender of French nouns, or the resulting grammar, as an injustice.

Granting, however, that English speakers do think there's a social justice element to this dispute, it need never result in bad grammar. Michael's specimen sentence would better have been written "Why do people ignore their passions?" That would have been clearer because the real point is that people in general do, not that a sequence of people in particular do. When the sentence concerns the particular, even the particular indefinite, it's appropriate to use singular pronouns, both subjective and possessive. When the sentence concerns the general, it's good style (for clarity as well as grammar) to use plural nouns and pronouns, subject and possessive.

People are amazingly committed to their non-prescriptive grammar, I must say. I don't know where the idea originates that your standard of expression is the average of what people are sloppy enough to try to get away with. If you are hearing people make agreement errors, that's because you are hearing uneducated people. We are not part of the "write like they talk" vernacular culture: we write as educated specialists in the use of words are trained to do. Your grammar should be impeccable, not merely capable of escaping conviction by a random sample of nonprofessional speakers, as your ethics should not be measured by whether you've violated the criminal law. Your writing needs to be better than correct; it needs to be forceful, supple, and attractive. If you settle for less you are shortchanging your clients and your causes.

So far as the use of "everyone ... she" constructions is concerned, I decided years ago to use them in regular alternation with "one ... he" constructions. You listened to me use them in class for fourteen weeks, and almost all of you barely noticed they were there. You heard me say sometimes "the judge ... he" and sometimes "the judge ... she" and everyone just took it as normal. I think that's something we all ought to train ourselves to do, because that's not about grammatical gender: it's about how our use of metaphors and hypotheticals creates a narrative of what's possible in our world. We should use our speech patterns to imagine everyone doing every sort of job, and all people marrying whomever they want. By doing so we prevent the usual forms of our expression from making assumptions against which we want otherwise to contend.

-- EbenMoglen - 20 May 2008

I believe Cixous used the pronoun "illes" (a combination of ils and elles) in her writing to deal with this very problem. Of course, she was a theorist and not a lawyer, and so had considerably more leeway with grammar rules than we do.

-- ClaireOSullivan - 20 May 2008

I think for me this is definitely an extension of what for me is an awkward decision between using he or she as a general pronoun (although I've made the mistake on a paper for this class when he was clearly appropriate). However, I wonder if there is going to be a transition within the upcoming years of the acceptable use of the pronouns and what the acceptable use will be. I think Eben makes a very persuasive point about how precise we need to be given our future profession, but how long after a transition occurs will the change be found in legal language too?

-- AndrewWolstan - 20 May 2008

A father and his daughter get into a terrible car accident. They are taken to separate rooms of the hospital. The doctor in charge of the girl looks at her and says, "I can't operate. She's my daughter." Still surprised?

Michael:
If the gender of the pronoun "my" followed the gender of the words "she-daughter"/"he-son" surrounding it, then your example cannot help us know whether people assume a default male gender in general. That means that if we experiment with the terms of your story -- sometimes substituting "daughter" for "son", and at other times replacing "doctor" with "secretary," "ballet dancer," "teacher," or "nurse" -- the "daughter" substitution should best alleviate reader confusion about the ambiguously gendered character's gender. In which case, the outrage feminists feel when readers "default" the doctor to male is really just an artifact of the author's choice to make the male-biased "my" refer unambiguously to a doctor.

-- AndrewGradman - 20 May 2008

I think Andrew W and Eben have it though... If the goal is effective communication, sticking with formal rules is the way to go. Grammar has clearly not made the transition to 'their' as a singular neuter; the fact that it bothered Eben enough to comment on it (and the fact that it still sounds wrong to me), means that there are others who will be bothered by it.

As Claire and Eben argued, we are lawyers, not theorists. Our job is to communicate, not to press the envelope of grammar. I steer away from 'their', because I feel like it never contributes to your goal... at best, people don't notice it, at worst it looks like you don't know how to write. Alternating she or he, on the other hand, can earn you points with a substantial subset of readers, and at worst sounds discordant instead of wrong.

(I typically use the alternating approach, but I will stick with 'he' when I am writing for someone who seems like a staunch traditionalist.)

-- TheodoreSmith - 20 May 2008

Andrew, I'm not sure I understand the takeaway, but I do appreciate the point about various occupations and characteristics being gendered one way or the other, not all of them male. But I submit that many occupations which are currently split 50-50 by gender in real life (college students, for example, where females make up slightly more than 50% of the pool) retain a default male connotation. So, the sentence "The college student did his taxes on time" is easier to process than "The college student did her taxes on time." Now, of course, this is nothing more than my intuition. However, it could be tested experimentally, and I suspect that one would be able to show that cognitive processing of the first version is easier than the second. If true, this would be an interesting result, given that America today is roughly equally split between male and female college students.

  • If you thought I was making a point about the gendering of occupations, then one of us has much worse language problems than number agreement. My point was that the reason people assume the doctor is male is because her child is male ("he's my son"), NOT because she is a doctor, or because her gender is left unstated. So what does your story tell us about bias? -- AndrewGradman - 21 May 2008
-- MichaelBerkovits - 20 May 2008

I am with Eben et al on this one as well. I do not think that we can make any generalizations about what is or is not incorporated into vernacular, especially given the inherent regional nature of "vernacular."

More importantly, our profession is one of precision and, especially after learning the estates and future interests unit in property, it is delightful (for grammar nerds like me) to see how much comma placement is the name of the game.

ralph wiggum said it best --> me fail english? thats unpossible.

-- AdamGold - 21 May 2008

I'm happy to report having just discovered that Wikipedia has a lengthy discourse on this very subject: Wikipedia on "Singular they"

The most interesting things I learned:

1) "Singular they" has a long history in the English language, e.g.,

Caesar: "No, Cleopatra. No man goes to battle to be killed." / Cleopatra: "But they do get killed". —

Shaw, Caesar and Cleopatra (1901)

  • Not a good example. Caesar makes a statement: no particular indefinite soldier ever goes into battle intending to be killed. Cleopatra points out that notwithstanding this fact, soldiers die in great numbers. The shift from singular to plural is intentional, grammatical, and effective.

I would have everybody marry if they can do it properly. — Austen, Mansfield Park (1814)

(I will admit that I myself find the Austen sentence awkward, but not the Shaw sentence.) (I also am fully aware that dialogue in novels is not a good guide to how to write correctly, as its goal is to capture how people speak, not reflect how people write.)

  • This example is worse than the other, because we are not likely to model our writing on the diction of the early 19th century. Miss Crawford is also the speaker who says, a moment earlier, "If your Miss Bertrams do not like to have their hearts broke, let them avoid Henry," which is wrong as to modern sequence of tenses (we use the past perfect "broken" in that place), and stilted. I want to emphasize again that the issue is what your writing should be like, not what examples can be found in the OED. You should know the difference between "shall" and "will," regardless of the absence of a remaining understanding on that point among the bulk of even literate American English speakers, and you should be aware that conditions contrary to fact in English require the subjunctive no matter what you may hear from the floor of the United States Senate.

2) Some prescriptive grammatical authorities find the usage acceptable, but most don't. For example, 82% of The American Heritage Dictionary of the English Language usage panel rejected the usage (though that means 18% did not).

3) Wonder of wonders, there has been a study very much on point. I very much encourage anyone interested to read it. But I've summarized some of the key findings (hopefully accurately) below.

a) Sentences involving use of "singular they" are processed as efficiently as uses of, say, singular "he" when the antecedent is stereotypically male (e.g., truck drivers). "Singular they" is processed more quickly than is a singular pronoun which does not match the antecedent (e.g., using "she" when referring to a generic truck driver). This matches Andrew's intuitions.

b) When the antecedent is specific, as opposed to generic (e.g., a sentence about "that truck driver" as opposed to truck drivers in general), uses of singular they are processed less efficiently than use of the gendered pronoun that matches the stereotype (e.g., "he" for "that truck driver," and "her" for "that nurse").

Of course, this study should be taken with a grain of salt. First of all, as many people pointed out, we are lawyers-to-be, not ordinary people. Just because the average American is not impeded in her reading of a sentence where singular they is used, does not mean that people in our future audience (professors, judges, colleagues) are not - the average American will read a sentence containing singular they just as efficiently as one containing "he" or "she," but Eben and many of us will not, because of our special attention to precise writing. The study would no doubt have come up with different results if, say, the members of the American Heritage usage panel were the test subjects.

However, if the goal is writing that is not distracting, alternating "he" and "she" can cause trouble anytime the referent is stereotypically male or female, and the pronoun does not match.

The study did yield a finding that was opposite to my prediction: "neutral" antecedents (like, "The runner") take "he" or "she" equally well. I'm not sure if follow-up studies have been done, but it would seem that this experimental methodology could ferret out which nouns are stereotypically gendered and which are truly neutral. Are there nouns that are not quite as gender-stereotyped as "truck driver," but not quite as neutral as "runner?" What about "doctor," "lawyer," "artist," "hair stylist?"

The study also found that in sentences like "Anybody who litters should be fined $50, even if he/she/they cannot see a trashcan nearby..." the singular they is actually the pronoun that leads to fastest reading times. Again, I would imagine that the same result would not hold for people very attuned to prescriptive grammar; but it is worth noting that the test subjects here were university students, not street rabble.

-- MichaelBerkovits - 21 May 2008

I'm not sure I understand this proposition that the goal is writing that is not distracting. Sure, writing shouldn't distract readers in certain ways (as when something blatantly ungrammatical jars one out of the meaning of the text and into criticism of the author), but linguistic choices, and encouraging a reader to think more deeply about them, can be as important as the meaning of a text. And if we accept as a given that using "he" as a default is sexist, then perhaps alternating "he" and "she," especially in cases where the referent is not the matching stereotype, furthers the cause of gender equality, or whatever it is that people are interested in when they take issue with "he" as a gender neutral singular pronoun. I certainly find "they" as a singular jarring in a "judging the writer's grasp of grammar" way, and "she" occasionally jarring in a "challenging my assumptions about gender" way. The two do not seem equivalent to me. And mightn't faster reading be the very opposite of what legal writing should be about?

-- AmandaRichardson - 22 May 2008

And while I'm posting, I just want to say "Go Oxford comma!" because I'm not sure there's another place where I could even hope anyone would care.

-- AmandaRichardson - 22 May 2008

I should preface this comment by stating that I am in the alternate between “he” and “she” camp. I am also pretty sure that I use “she” when my referent is doing something positive (like doctoring) and “he” when my referent is say, killing someone. Surely this is silly, but it beats using “their” as a singular.

I agree with Amanda. I do not think plainness (or avoiding distraction) should be the goal of writing, even legal writing. While lyricism should not be the goal in legal writing, I do not think it should be avoided. I do not think we should get to law school and turn off the creative portion of our brain. I think there is some room for beautiful memo writing, and there is certainly room for lyricism in more academic writing.

As for the Oxford comma thing, I don’t even understand why some people are so enraged by the Associated Press Style. (NYT does not use Oxford comma) Is there a history behind this? I use the Oxford comma most of the time, but a missing comma does not send me into a rage tailspin. I don’t understand the investment.

Last point: I share Claire’s worry. I last studied grammar in the 6th grade (in a French school. Egad!). I am a little insecure about my grammar. Should I read Strunk and White this summer? Is there a better source?

-- ThaliaJulme - 22 May 2008

The classic example of the need for the Oxford comma is this book dedication: "To my parents, Ayn Rand and God." There it looks like the author's parents are Ayn Rand and God, when this was clearly not the intention of the author. On the other hand, it can introduce ambiguity as well. Honestly, I don't like eliminating it because dropping the comma was an invention of the newspaper business to save space and I am apparently both a prescriptivist and against saving paper. It just seems so brusque and unnecessary to clip the comma and for some reason it gets under my skin. But I am obviously a little unbalanced when it comes to grammar.

-- AmandaRichardson - 22 May 2008

Amanda, Thanks for the Ayn Rand and God example (it provided me with both a good laugh and argumentative ammunition). My husband and I have had a running dialogue for years about whether that comma should be left in or taken out (I'm the traditionalist, he's the "why bother with the extra keystroke" pragmatist.) Now I've got new ammunition to convince him with humor of the validity of my point (the most effective ammunition, in my opinion). Thanks -- hope you have a great summer.

-- BarbPitman - 23 May 2008

Without having thought about it much, wouldn't the Ayn Rand example show that the cases where the comma is necessary for clarity are exceptional, and not the norm? Shouldn't the comma, then, be used only where it is necessary for clarity, and not in other cases? Couldn't educated writers be trusted to apply the comma on an "as-needed" basis, much the way that all writing involves making choices "in the moment" in order to enhance clarity in ways that wouldn't have been obvious in the abstract?

I can see at least one argument for the other side: Prescriptive rules are easy, unthinking ways to protect against potential ambiguity. For example, I didn't recognize dangling modifiers until my ears were trained to listen for them, probably in my teens (is that what you call them? A sentence like "While hanging from a tree, the banana Peter was holding dropped from his hands" - you grammar mavens will know the correct term for this incorrect construction). Oftentimes, there's no ambiguity, because it's obvious from context who is doing the action (and I'm pretty sure there are dangling constructions that don't sound as awkward as the one I wrote, though I couldn't think of any on the spot). But sometimes, there will be ambiguity, and unthinkingly applying an across-the-board rule helps protect against those times.

Before anyone boxes me in as an "anything goes" grammarian, I'm actually a staunch supporter of the comma. Also, I very much appreciate learning what it was called, through this thread. Thanks, Amanda and Thalia!

-- MichaelBerkovits - 23 May 2008

Michael, I don't understand why the Ayn Rand example that Amanda cites would "show that the cases where the comma is necessary for clarity are exceptional, not the norm."

Is it because we less frequently say "To my parents, Ayn Rand and God" than say "To my mother, Ayn Rand, and God"?

Given that most English-speakers practice religions that command them to honor both mother and father, I would think that the former example is heard MORE frequently than the latter.

-- AndrewGradman - 23 May 2008

And the takeaway is that, book dedications aside, the use versus the omission of the serial comma have an equal potential to confuse. And that, for the second time in this thread, an anecdote passing for insight has instead shown how little we think about the gimmicks that get forwarded to us in mass emails.

-- AndrewGradman - 23 May 2008

Andrew, even gimmicks can contain points relevant to the discussion, and both Amanda and Michael recognized the fact that whether one leaves the comma out or puts it in can produce confusion, depending on what message one wants to communicate. And you've gotta cut me some slack -- with all the new thinking that I've been doing this past week on a variety of legal issues that I've never thought much about before, I'm extremely receptive to diversions that provide amusement without making me think too much. Perhaps that's my shortcoming, but I'm sure I'm not the only one reading and posting to this website who is suffering from this shortcoming right now.

-- BarbPitman - 24 May 2008

I'll second the diversions comment!

-- AndrewWolstan - 24 May 2008

I was trying to make a point relevant to Michael Berkovits's original question -- namely, whether these wordgames cast any light on the relationship between language and meaning. I didn't mean for what I said to target anyone's personal choices. If you actually stand in awe of my judgment, then I hereby authorize you to enjoy whatever wordgames you find most diverting.

-- AndrewGradman - 25 May 2008

Andrew -- thanks for the clarification. And if anyone has any more wordgames, gimmicks, or anecdotes, no matter their source, please share, as I (and perhaps others) am looking for the most diversion possible right now. (I assume Eben and others are groaning at my base tendencies, but an end-of-the-summer job offer could be credited at least in part to this diversion opportunity -- so thanks.)

-- BarbPitman - 25 May 2008

I'm not sure I understand what is meant by the reference to "wordgames." Linguists work with ambiguous constructions all the time in an effort to better understand the structure of language ("I fired guns with zebras" vs. "I fired guns with zebras," where the first refers to guns with zebras painted on them and the second refers to going out on the shooting range with a bunch of my zebra friends). I definitely think they're wordgames in the sense that they're fun, but I disagree that this example, the Oxford comma, etc. don't shed light on the structure of language (though they may not shed light on "language and meaning," which may be a different endeavor).

Andrew's first construction was: "To my parents, Ayn Rand and God." Syntactically, that's "To my parents, (who are) Ayn Rand and God."

Amanda's original construction was: "To my mother, Ayn Rand, and God." The ambiguity stems from the different syntactic readings of:

"To my mother, (to) Ayn Rand, and (to) God,"

vs.

"To my mother, (who is) Ayn Rand, and (to) God."

I haven't taken enough linguistics to do any sort of meaningful analysis. But, most likely, some of the above constructions are grammatical in English, but not in other languages. Maybe in some languages, the clause "To X" simply can't govern anything outside the same clause, so that the construction "To X and Y" wouldn't be grammatical (because it wouldn't admit of the reading "To X and (to) Y."

In a language like that, the construction "To my parents, Ayn Rand and God" wouldn't be ambiguous (and hence wouldn't admit of any comma issues), because there would be only one grammatical reading: "To my parents, (who are) Ayn Rand and God."

The above analysis may be linguistically wrong, but it's an example of the types of deeper things you could do with "wordgames."

I hope no one takes this post as anything more than it is, which is just an expression of how much I like playing around with language, and my conviction that wordplay and language-play is anything but frivolous.

Anyway, for those looking for a diversion, I've always liked this one:

A reporter for a sensationalist early 20th-century newspaper walks through a grocery, whereupon he hears a great crash in Aisle 12, due to a customer knocking over an entire section of products. The next day, the headline in the paper reads:

"Stocks Plummet in Market Crash."

-- MichaelBerkovits - 25 May 2008

I do not want to be too hurriedly inductive on this subject, but it seems to me that a particular quote from one of our readings sums up this conversation as succinctly and elegantly as possible: Irony is the infinite plenitude of chaos, and (to add) language is a powerful tool to generate irony. It is no wonder why we learn so much about this figure of speech in literature courses (and even linguistic courses where Chomsky's seminal quotation to illustrate how our minds can parse meaningless, yet grammatical phrases is iterated again and again: Colorless green ideas sleep furiously. Contrast this meaningless, grammatical sentence with the meaningful, ungrammatical sentence: Ran I supermarket to the.)

I am adding what I think is a fun example of linguistic playfulness and a further illustration of inevitable linguistic irony in the vein of Chomskyan linguistics and generative grammar. It is the famous excrement passage from Watt in which Beckett masterfully manipulates linguistic syntax so chaotically (and ironically) as to induce the invention of the word "syntacticon" in literary criticism to describe his work in contrast to Joyce's liberal manipulation of the lexicon in Finnegans Wake. Try to parse these two sentence fragments meaningfully:

"And the poor old lousy old earth, my earth and my father's and my mother's and my father's father's and my mother's mother's and my father's mother's and my mother's father's and my father's mother's father's and my mother's father's mother's and my father's mother's mother's and my mother's father's' father's and my father's father's mother's and my mother's mother's father's and my father's father's father's and my mother's mother's mother's and other people's fathers' and mothers' and fathers' fathers' and mothers' mothers' and fathers' mothers' and mothers' fathers' and fathers' mothers' fathers' and mothers' fathers' mothers' and fathers' mothers' mothers' and mothers' fathers' fathers' and fathers' fathers' mothers' and mothers' mothers' fathers' and fathers' fathers' fathers' and mothers' mothers' mothers'. An excrement."

 

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