Misnegation of the week

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From the 5/16/2013 decision of the Third Circuit, invalidating an NLRB decision based on the argument that the "recess appointment" of one of the board's members was invalid:

The "main purpose" of the Recess Appointments Clause, therefore, is not—as the Eleventh Circuit held and the Board argues—only "to enable the President to fill vacancies to assure the proper functioning of our government." Evans, 387 F.3d at 1226. This formulation leaves out a crucial aspect of the Clause's purpose: to preserve the Senate's advice-and-consent power by limiting the president's unilateral appointment power. Accord Noel Canning, 705 F.3d at 505 (explaining that the Eleventh Circuit's statement of the Clause's purpose "omits a crucial element of the Clause, which enables the president to fill vacancies only when the Senate is unable to provide advice and consent" (emphasis in original)).

The importance of this aspect of the Clause's purpose is difficult to understate. [emphasis added]

More than you probably want to read on this topic:

"Why are negations so easy to fail to miss?", 2/26/2004
"We cannot/must not understate/overstate" 5/26/2004
"Overstating understatement" 6/22/2004
"Multiplex negatio feblondiat" 7/14/2007
"Weird logic and Bayesian semantics" 7/15/2007
"'Cannot underestimate' = 'must not underestimate'" 11/6/2008
"Misunderestimation" 4/4/2009
"Gov. Cuomo and our poor monkey brains", 1/21/2011
"…not understating the threat", 6/5/2012
"(Not) Underestimating the Irish Famine", 9/16/2012
"Overestimating, underestimating, whatever", 1/10/2013
"CIA unable to underestimate the effect of drone war", 4/7/2013

But in case you need more….

[h/t Jonathan Falk]



8 Comments

  1. Rodger C said,

    May 17, 2013 @ 12:17 pm

    Misnegations fill a much-needed gap.

  2. J.W. Brewer said,

    May 17, 2013 @ 12:49 pm

    I would note only that Judge Smith is in reasonably distinguished company as the list of links to earlier iterations of this issue would document, and further that this is an unusually long opinion as federal appellate opinions go (just over 100 pages in the "slip" version, not counting the 55-page dissent which the majority judges would have reviewed in draft in order to decide whether they wished to tweak their own work in response). It is no doubt difficult to, um, underestimate/overestimate/ come-on-you-know-what-I-mean how difficult it is for ones poor monkey brain to notice this sort of error in editing/proofreading ones own prose (where one already knows what the intended meaning in context is), and when it is one sentence in an unusually long document that difficulty is probably further exacerbated.

    I actually once knew a federal appellate judge who had a regular practice of having someone in his chambers who had *not* been previously substantively involved in drafting a particular opinion give it a careful read with "virgin eyes" when everyone else who had been working on it thought it was ready to go, just because it is so hard to spot certain sorts of errors (of logical structure and flow as well as of syntax) after you've reread your own draft a dozen times. I think that was quite sensible but afaik it is not standard practice for most judges (to be fair, that judge may have had the luxury of sitting on a court with notably lower-than-average case load compared to much of the rest of the federal judiciary).

  3. Rubrick said,

    May 17, 2013 @ 1:24 pm

    I'll note in passing that "invalidating an NLRB decision based on the argument" has a highly ambiguous parse tree (was it the invalidation or the decision that was based on the argument?).

    English is hard. Let's do math.

  4. Steve Treuer said,

    May 17, 2013 @ 3:23 pm

    Should the advice of Nick Carroway's father at the beginning of Great Gatsby be called a misnegation or something else: ""Whenever you feel like criticizing anyone, just remember that all the people in this world haven't had the advantages that you've had"? The problem is where the negation is placed, not too many negations. It would be fine if he said, "not all the people in this world have had the advantages that you've had." But as written it seems to mean that all the people in the world, including Nick, haven't had the advantages that Nick has.

  5. Rebecca said,

    May 17, 2013 @ 8:55 pm

    @Steve Treuer
    That just seems to be a case of scope ambiguity, with either the quantifier "all" or the negation able to take wide scope over the other. Context and stress can make it clear what's intended. Eg: "Well, ALL of you can't go first."

  6. Andrew (not the same one) said,

    May 19, 2013 @ 10:43 am

    Steve Treuer: That seems to me to be the same usage as 'All that glisters is not gold'. At one time this was widely used as equivalent to 'Not all that glisters is gold', and it's possible that it was even seen as a more correct way of saying it.

  7. Steve Treuer said,

    May 19, 2013 @ 2:11 pm

    Rebecca and Andrew: both good examples. I wouldn't have recognized them as being the same as the Gatsby example, but I see that they are.

  8. KevinM said,

    May 21, 2013 @ 2:49 pm

    Everybody loves my baby but my baby loves nobody but me. Of course I'm not my baby. It's about the implied or context-based limitations on "all" or "everybody."

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