To boldly split
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This new 2nd Cir. brief for @nytimes has a good example of how the fear of splitting infinitives can lead to awkward or ambiguous sentences. "Plausibly" modifies "allege," not "failed." (PS also change "assist it in addressing" to "help it address") https://t.co/kbRUa2LVtf pic.twitter.com/cPtnl9SSql
— Ross Guberman & BriefCatch (@legalwritingpro) August 22, 2019
[h/t Daniel Deutsch]
Craig said,
August 22, 2019 @ 4:30 pm
I probably would have either split the infinitive or written "failed to allege plausibly". I agree that "failed plausibly to allege" is awkward.
Jerry Friedman said,
August 22, 2019 @ 4:46 pm
What Craig said.
And why quotation marks in "address the 'plausibility issue'"? If someone forced me to use quotation marks, I'd put them around "plausibility" by itself, since what was addressed certainly seems like an issue to me. But IANAL (OAL).
Lars said,
August 22, 2019 @ 5:01 pm
@Jerry Friedman, re "plausibility issue": Perhaps because the judge refers to it again later on; we'd need to see more of the text to say for sure.
chris said,
August 22, 2019 @ 6:11 pm
@Jerry, Lars: Given the citation immediately after, I'd bet that "plausibility issue" is the exact wording used by the district court on page 319-20 of whatever "A" stands for. (Appendix?)
(IAANAL, but I used to work for some.)
Although if you need an evidentiary hearing to decide whether someone has *alleged* something, then maybe I don't understand what is going on here. Plausibility seems like an odd thing to try to address at a motion-to-dismiss stage (precisely because it normally occurs before you start taking evidence). Unless the allegation involves lizard people faking the moon landing on direct orders from Satan, or some such.
Lars said,
August 22, 2019 @ 7:11 pm
Ah, so that's a citation. That only strengthens my assumption.
Ted McClure said,
August 22, 2019 @ 9:35 pm
The requirement at the pleading stage is that the complaint must plausibly allege the elements of the claim. It doesn't matter what "plausibly" modifies, because "plausibly allege" is a single unit. The writer was probably old enough to try to not split the infinitive (intentional). And there are some pleaders who fail to remember the "plausibly" part of the requirement. The Federal Rules of Civil Procedure were revised in the 1980s(?) from "a plain statement of the claim", which could be as simple as "Defendant wronged me." This was just too expensive, as almost every case made it to the evidentiary stage. So SCOTUS changed the rule to require claimants to lay out the elements of the claim. If the claimant doesn't do that, the court usually gives the claimant leave to amend. Once. If the claimant defeats their own case in the complaint, or can't lay out all the elements in a way that could happen in the real world, good bye.
Before the change in the Rules, it was a sport among prisoners to file suit after suit with claims like "They got beet juice on my chicken nuggets."
Jerry Friedman said,
August 22, 2019 @ 10:22 pm
Lars and chris: Thanks, that makes sense.
rosie said,
August 23, 2019 @ 2:38 am
Would the motion to dismiss have been inadequately worded if it had used a sentence such as "Palin's allegation … was not plausible"? To what extent does the FRCP mandate that a legal document should be worded so that, in the restatement of what legal condition it is intended to fulfil, two salient words of the condition which form a unit must appear in the document as a unit?
KevinM said,
August 23, 2019 @ 11:30 am
IAAL (is that a thing?).
The "plausibility" requirement generally refers to a pair of Supreme Court cases that tightened up the standard for pleading in a civil complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (referred to, Brangelina-style, as "Twiqbal").
Neither opinion, however, indulged the split-infinitive superstition. Nor is "plausibly to allege" a fixed phrase or quotation from either. (They use such phrases as "a plausible entitlement to relief," "the requirement of plausibility," "a claim to relief that is plausible on its face," or "facial plausibility.")
Nor, for that matter, did either case hold that the complaint "failed adequately" to state a claim (alas, a fairly common infelicity in legal writing).
BTW, in the brief cited by Mr. Guberman, even if they didn't want to split an infinitive, why not just write that Palin "failed to allege plausibly"?
Jon W said,
August 23, 2019 @ 12:34 pm
FWIW, Judge Walker's opinion for the Court of Appeals (the one regarding which NYT in this brief is making its case for rehearing) gets the usage issue right. It just uses the phrase "to plausibly allege" (three times).
Vance Koven said,
August 23, 2019 @ 1:33 pm
Seems to me the real failure here was the use of the pompous legalistic construction "fail to" rather than a simple negation, such as "Palin had not plausibly alleged…"
Ben said,
August 23, 2019 @ 4:06 pm
I am an attorney working for a think tank and could use some help if anyone is willing. I will not hold anyone to their opinion, but am looking for some guidance. I am trying to understand the meaning of section 2 of the following provision of the Oklahoma constitution:
"(a) There is established as a part of the Judicial Department a Judicial Nominating Commission of fifteen (15) members, to consist of:
(1) six members to be appointed by the Governor, which shall include at least one from each congressional district established by the Statutes of Oklahoma and existing at the date of the adoption of this Article, none of whom shall be admitted to practice law in the State of Oklahoma or have any immediate family member who has been admitted to the practice of law in the State of Oklahoma or any other state;
(2) six members, which shall include at least one from each congressional district established by the Statutes of Oklahoma and existing at the date of the adoption of this Article who are, however, members of the Oklahoma Bar Association and who have been elected by the other active members of their district under procedures adopted by the Board of Governors of the Oklahoma Bar Association, until changed by statute."
Specifically, I am trying to determine whether the phrase "until changed by statute" modifies (1) "members of the Oklahoma Bar Association," (2) "who have been elected by the other active members," or (3) "procedures adopted by the Board of Governors." Or some combination of the 3. In other words, could a statute change only the procedures used by the board of governors, or could it allow the appointment of members of the Bar by some method other than election by other active members in their district.
Any ideas or language resources to look at are appreciated. Thank you.
Andrew Usher said,
August 25, 2019 @ 7:33 pm
I have never understood why people trying to 'correct' split infinitives seem to invariably move the adverb before 'to'. This placement is almost always unidiomatic and not infrequently confusing. Moving it after the verb would be more sensible.
Here, as an example, 'to allege plausibly' seems as good as 'to plausibly allege' (and has the same meaning), although if 'plausibly allege' is a term of art it should be kept together.
Again, the one people always quote or, as in your title here, allude to: 'to boldly go …' – one could as well say 'to go boldly …' and that might even be preferred if emphasis on 'boldly' is desired. But 'Boldly to go …' would be a clunker at least!
k_over_hbarc at yahoo.com
Viseguy said,
August 27, 2019 @ 11:12 pm
@Vance Koven: To this lawyer's ear, "Palin had not plausibly alleged" is not simply a less-wordy equivalent of "Palin had failed to plausibly allege". The former can be taken as a simple factual negative; the latter asserts a legally significant omission. And the latter is what you're trying to hammer home on a motion to dismiss.
Bloix said,
August 28, 2019 @ 10:50 pm
As most lawyers would suspect, "failed plausibly to allege" is a quotation. Here is the Second Circuit in Geffner v Coca-Cola (2019):
"Accordingly, Plaintiffs have failed plausibly to allege
that the “diet” label is misleading."
And you can find many other examples.
The passage from the New York Times brief is not intended to be concise, clear and compelling to a lay reader. It is intended to tie the fact pattern in the case before the court to a ruling in a prior case. To do that, the lawyers drafting the brief adopted the precise phrasing used in the ruling in the prior case. The decision to do so was the standard choice any litigator would have made.
Although it does not cite authority, presumably the Geffner case was itself adopting the phrase from a prior case. I'm not about to do the research to find the case in which the phrase originated but it appears to have taken on the force of a legal standard.
You can read Geffner here:
https://cases.justia.com/federal/appellate-courts/ca2/18-3548/18-3548-2019-06-27.pdf?ts=1561645804