But for …

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From reader V.D.:

Justice Kennedy got himself tangled in a quasi-double negative in today's DOMA decision:

Windsor suffered a redressable injury when she was required to pay a tax from which, in her view, she was exempt but for the alleged invalidity of § 3 of DOMA.

Either "but for" or "invalidity" is wrong.  If DOMA is invalid, she is exempt from the tax.

Certainly a misnegation — I'm surprised that none of the clerks caught it. Presumably Kennedy meant something like "from which she was exempt but for the allegedly invalid § 3 of DOMA".

The current version of the United States v. Windsor opinion at oyez.org starts with this:

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

So perhaps the error will be corrected. The opinion contains one other instance of "but for", that one logically sound:

In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and immediate economic injury,” Hein, 551 U. S., at 599, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.

It's probably worth noting that "but-for" is a legal term of art, one that played a central role in another recent case. Thus Gregory C. Keating et al., "Too Little, Too Late: The Supreme Court Adopts But-For Causation For Title VII Retaliation Claims":

On June 24, 2013, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013), the U.S. Supreme Court broke its long string of pronouncing expansive standards in the context of Title VII retaliation claims by requiring strict "but-for" causation and rejecting the more liberal "motivating factor" standard used for Title VII discrimination claims. Going forward, a plaintiff will be required to prove "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." […]

Before the District Court and the Fifth Circuit Court of Appeals, Nassar and the University squared off on the causation standard for retaliation under Title VII: the University maintained that Nassar needed to prove he would have been hired "but-for" his prior discrimination complaints, while Nassar argued he needed only to establish that those complaints were a "motivating factor" in the University's decision. The opposing positions mirrored a nationwide split on the Title VII retaliation causation standard. The split originated from the U.S. Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc., which held that "but-for" causation applied to ADEA retaliation claims. Consistent with its heightened interest in retaliation claims, the Court granted certiorari to resolve the split the Gross decision inspired.

The opinion in that case was also written by Justice Kennedy,  and contains 38 instances of "but for" or "but-for", e.g.

Concentrating first and foremost on the meaning of the phrase “ ‘because of . . . age,’ ” the Court in Gross explained that the ordinary meaning of “ ‘because of’ ” is “ ‘by reason of’ ” or “ ‘on account of.’ ” Id., at 176 (citing 1 Webster’s Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the “requirement that an employer took adverse action ‘because of’ age [meant] that age was the ‘reason’ that the employer decided to act,” or, in other words, that “age was the ‘but-for’ cause of the employer’s adverse decision.” 557 U. S., at 176. See also Safeco Ins. Co. of America v. Burr, 551 U. S. 47 –64, and n. 14 (2007) (noting that “because of” means “based on” and that “ ‘based on’ indicates a but-for causal relationship”); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –266 (1992) (equating “by reason of” with “ ‘but for’ cause”).

This sense of "but for" is rather rare these days in ordinary English — I associate it mainly with the expression "There but for the grace of God…" But it appears to be quite common in certain kinds of legal discourse, and it has certain been very common in some of Justice Kennedy's recent experience. So no doubt he (or his clerks) were over-primed to use it in United States v. Windsor.



  1. Ben Rosenberg said,

    June 27, 2013 @ 9:19 am

    What's a "but-for"?

    It's for pooping, silly.

  2. Michael Yuri said,

    June 27, 2013 @ 9:20 am

    "I'm surprised that none of the clerks caught it. Presumably Kennedy meant something like "from which she was exempt but for the allegedly invalid § 3 of DOMA"."

    One plausible theory — the clerk initially drafted it in the manner you suggest, but due to his antipathy toward "-ly" adverbs, Kennedy changed it, not realizing that he was inadvertently changing the meaning.

    See here for more: http://prawfsblawg.blogs.com/prawfsblawg/2013/06/amks-adverb-avoidance-.html

  3. Brett said,

    June 27, 2013 @ 11:54 am

    I actually remember puzzling out the meaning of, "There but for the grace of God," when I was a kid. Since then, I have occasionally encountered "but for" in legal contexts, and, although I am not a lawyer, the meaning there always seemed completely transparent.

  4. Boris said,

    June 27, 2013 @ 2:30 pm

    I always thought common use of "but for" today was a British, or maybe just Indian English thing. I hear it from Indians a lot.

  5. Eric P Smith said,

    June 27, 2013 @ 3:25 pm

    (This is my nth attempt, n>4, to make this comment: there seems to have been a glitch.)

    I'm surprised at the claim that "This sense of 'but for' is rather rare these days in ordinary English." I'm prepared to accept that that may be so, in which case it has become rare without my noticing. For me it is entirely standard, both in speech and in writing. (I'm British, b 1949, old-fashioned.) Indeed "but" meaning "except" is standard for me in a wide range of contexts. "I love no-one but her." "He arrived so late that the meeting was all but finished." "Andy Murray wants anyone but England to win the World Cup."

    [(myl) In COCA, the string "but for" occurs with a frequency of 39.1 per million words, or 18,154 instances in the 450-million-word collection. The great majority of these are things like

    It was that sense of having lost something you never had but for which you had held out hope of one day having.
    But for many of us, television and the computer suck away precious evening adult time
    It was a word much overused and Paul disliked it, but for the moment he could think of no better one.

    In a random sample of 100, only 4 were instances of the sense under discussion:

    It was like a track meet, recalled one of the participants, the transfer of football from quarterback to receiver so smooth and precise that but for the 50 or so yards between them, it seemed as if they were merely handing off a baton.
    In fact, there is no data, to the best of my knowledge — and I'd be happy to be corrected on this — that shows that but for doing the draconian quarantine measures, which I think would completely shut down the US economy for weeks or months […], you would not be successful by just vaccinating people.
    They were trussed up in heavy coats or blankets, making huge lumps atop their animals, with no bare skin showing but for the blowhole at their mouths.
    This idea that " There, but for the grace of God, go I, " is a bunch of baloney

    This yields an estimate of about 4*39.1/100 = 1.6 per million words, 95% confidence interval about 0.5 to 3.9 per million words.

    In comparison, "except for" (where pretty much all of the hits are interpreted with a similar meaning) has a frequency of about 28.65 per million words, or about 18 times more common.]

  6. J.W. Brewer said,

    June 27, 2013 @ 4:44 pm

    "But for" in the sense under discussion is indeed very common in American lawyers' English, even if apparently rare in other contexts. In most legal contexts, fwiw, but-for causation is not viewed as a particularly "strict" requirement because the claimant must meet the stricter-yet requirement of "proximate cause" which is but-for (a/k/a/ "cause-in-fact") plus something more, with exactly how much more being one of the great mysteries of the law . . .

  7. Marcia said,

    June 27, 2013 @ 8:06 pm

    I suspect it will be corrected to:

    "Windsor suffered a redressable injury when she was required to pay a tax from which, in her view, she was exempt but for the alleged validity of § 3 of DOMA."

  8. Neal Goldfarb said,

    June 28, 2013 @ 9:20 am

    Regarding University of Texas Southwestern Medical Center v. Nassar: The conclusion stated in the portion of the decision that Mark quotes—that because of X means "would not have happened but for X"—is demonstrably wrong, as shown by evidence of how because is actually used, including evidence of how it has been used by every member of the majority in Nassar.

    For example, consider this statement from an opinion by Justice Scalia (emphasis added): “As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto.” Each because-phrase here gives an independent reason for the conclusion that the legislation was underinclusive, so despite the use of because, neither reason can be seen as the but-for basis of the conclusion.

    I argued this point in the amicus brief I filed in Nassar, but to no avail. For the background about how the issue arose, see my blog post about the amicus brief.

  9. J.W. Brewer said,

    June 28, 2013 @ 12:07 pm

    Mr. Goldfarb makes an interesting point, although I must say that the failure of his arguments to gain traction is unsurprising to me given his brief's forthright admission that its claim about textual meaning "is not based on any dif­ference be­tween the statutory text here and the text at issue in Gross. Rather, we respectfully submit that Gross was wrongly decided." (Gross was decided in 2009 and all of the justices from the Gross majority are still on the Court.)

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