Saturday, December 1, 2012

Euphemism or Understatement?

Speaker of the House, John Boehner, said this week that he was “disappointed” with the President’s proposal for resolving the looming Fiscal Cliff problem. This reminded me a bit of the moment when Michael Corleone in Godfather II states that he is “disappointed” with his brother Freddo, whom Michael eventually arranges to whack. In either case, the use of the word “disappointed” suggests something quite different than what most parents mean when they say to their kid “I’m disappointed that you didn’t get all of that homework done before dinner.”
Human beings turn to euphemisms most often as a means to soften discussions of bodily events, such as (1) death (passing away), (2) sex (making love), (3) farting (breaking wind). That is, euphemisms, generally involve a subclass of “understatement” designed to cover topics beloved throughout human history by 14-year-old boys.
Trying to soften what you are saying by picking more delicate words can be risky business in legal writing. One risk is that the subtlety will be lost on the reader; especially in a persuasive context, the reader may just miss the point. Another risk is that the reader will perceive the attempt to soften or pretty-up the presentation of an awkward fact and conclude that you are being disingenuous. For instance, Chief Justice Roberts scolded an Assistant Solicitor General during a recent oral argument about a description in footnote 9 of a brief in an ERISA case that had been filed on the Secretary of Labor’s behalf.
The situation that spawned the footnote is a shift in the government’s position from one taken ten years ago. The footnote begins by acknowledging the position the government had taken in some older ERISA cases, e.g.: “Previously, …, the Secretary of Labor had filed an amicus brief in which she urged that where plan terms expressly provide for full reimbursement and expressly disclaim responsibility for attorney’s fees and costs, courts should enforce the plan’s terms and should not apply the common-fund doctrine. [citation omitted]. ” The footnote then provides an explanation for the departure from that position: “Upon further reflection, and in light of this Court’s discussion of ERISA’s preservation of the equity court’s core remedial powers in Amara, …, the Secretary is now of the view that the common-fund doctrine is generally applicable in reimbursement suits under Section 502(a)(3).” (emphasis added)
Roberts reacted to this footnote by suggesting “It would be more candid for your office to tell us” that the change was a result in “a change in position”—that is, a change in who was occupying the White House and thus the helm at Labor. Roberts did not like the “upon-further-reflection-of-the-secretary” characterization: “It's not that the secretary is now of the view—there has been a change. We are seeing a lot of that lately. It's perfectly fine if you want to change your position, but don't tell us it's because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it's because there is a new secretary.”
 The ASG tried to explain that it wasn’t merely that the person occupying the secretary position had changed but also that the law had changed in intervening years: ““With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly 10 years ago in the court's review.” (Note that, as quote above, the footnote does in fact mention two reasons separated by the conjunctive “and.”)
But Roberts was having known of it: “Then tell us the law has changed. Don't say the secretary is now of the view. It's not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”
He is the Chief so he gets to dress people down about their footnotes. (And footnotes do tend to be places were lawyers stash snarky or awkward arguments.) But this particular footnote reads to me merely as an understated, polite even, acknowledgement that both the Executive and Judicial branches had changed their positions during the intervening years on an aspect of ERISA law at issue in the case.
Understatement can be rhetorically powerful. Euphemisms, however, work best, in my view, if they are both funny and graphic. Shakespeare was a master of this variety. He described death, for instance, as “shuffl[ing] off this mortal coil” (Hamlet) and sex as a chance to “die in your lap” (Much Ado about Nothing) unless a male partner has imbibed too much such that the drink makes him “stand to, and not stand to” (Macbeth).
When it comes to farts, Shakespeare’s euphemisms were not as creative, generally involving extended references to wind. One of the most artful of these is Harry Hotspur’s response to the leader of the Welsh rebels, Owen Glendower, when the latter tries to intimidate Hotspur in battle by bragging that the very earth shook when Glendower was born. Hotspur retorts:
O, then the earth shook to see the heavens on fire,
And not in fear of your nativity.
Diseased nature oftentimes breaks forth
In strange eruptions; oft the teeming earth
Is with a kind of colic pinch'd and vex'd
By the imprisoning of unruly wind
Within her womb; which, for enlargement striving,
Shakes the old beldam earth and topples down
Steeples and moss-grown towers. At your birth
Our grandam earth, having this distemperature,
In passion shook.
Henry IV, Part I, III.1

In other words, Hotspur suggests that, if indeed the earth shook at Glendower’s birth, it was merely because Grandma Earth had developed a bad case of indigestion as a result of his baking in the womb; she rumbled with discomfort and then expressed massive relief upon freeing herself of the burden when Glendower was at last born.

Seems to me Hotspur’s description captures aptly what the nation will continue to feel until Congress gets its euphemism in gear so as to divert another gratuitous showdown over national fiscal matters. . . .

1 comment: