Adverbs and the Law

In today's Wall Street Journal, Jacob Gershman (lead writer of its Law Blog) wrote an article on about the various views, including by Supreme Court and Appellate Court Judges' on the use of adverbs in the law.  He noted that their use suffers much "adversity" and are the "grammatical equivalent of cheap cologne or trans fat."

Use of Adverbs in the LawMr. Gersham wrote that the use of adverbs "not only flourishes but wields power" in the American legal system. He asserts that they of late have taken on an "increasingly important - and often contentious - role in courthouses" helped by the fact that lawmakers fill new law with them. Mr. Gersham makes reference to the following court decisions:

• "Knowingly Aim" - the 8th Circuit's presented with the question as to the meaning of the the phrase containing an adverb "knowingly aim"  ["knowingly aimed a laser pointer at an aircraft] U.S. v. Smith, 756 F.3d 1070 (2014). Does "knowingly" modify both "aim" and "aircraft"? The Court looked at a common use of the word "aim" when a "ceremonial commander" orders "Ready, aim, fire!"   

• "Substantially Burden" - the U.S. Supreme Court was presented with the use of "substanially" in the context of "substantially burden[ing] a person's exercise of religion"  Burwell v. Hobby Lobby Stores, 134 S.Ct. 2571 (2014) 
• reference made to the "Dictionary Act of 1871" - 1 U.S.C. §1 (interesting states that "insane" includes "every idiot, insane person, and person non compos mentis")

• "Designed Quickly" - that is whether the taxpayer quickly designed to place property beyond the reach of the government, Fumo v. US, 2014 WL 2547797 (E.D. Pennsylvania 2014) 

Views CitedJacob Gerham notes various views as to the use of verbs: 

• "superfluous generally" - legal anthropology professor 
• "use has surged since the 1980s ... especially in the criminalization of white-collar and regulatory offenses" - Professor Lawrence Solan
• "legislators and adverbs need each other ...[s]tatutes have to be hyper-literal and generic" - Bryan Garner (editor of Black's Law Dictionary)
• "we have no problems with the use of adverbs" - Attorney General Eric Holder
• "tempting to use an adverb ...it says exactly what you mean" - Judge Gregory K. Orme
• "I don't think any of us can follow the rule as religiously as Hemingway did. I wish I could" - Chief Judge Alex Kozinski of the 9th Circuit
• "Caustic Exploitation" - Justice Antonin Scalia's "unapologetic" use of adverbs - a legal linquist
• "More likely to lose an appeal" - lawyer's excess use of adverbs in briefs - 2008 study by law scholars
• "Work in your favor" - if judge likes their use
• "I do not like adverbs...there use is a cop-out"  - Justice Anthony Kennedy
• "The road to hell is pave with adverbs" - Stephen King ("One Writing - A Memoir of the Craft")

Adverbs The dictionary defines "adverbs" as used to "modify the sense of a verb, participle, adjective, or other verb."  Examples are: as to a verb - he drove slowly (how did he drive?), as to an adjective - he drove a very fast car (how fast was his car?), as to another adverb - she moved quite slowly down the aisle (how slowly did she move?)  Adverbs often

• tell when, where, why, or under what conditions something happens 
• frequently end in -ly, but many words ending in -ly are adjectives
• have two forms, one ending in -ly and one that does not (late and lately) 

Three Functions: More, Less or Describe"Adverbs often functions as intensifiers, conveying a greater or less emphasis to something" and serve three different functions: 

• to emphasize  (I really don't, She simply ignored me) 
• to amplify (I so wanted, I know this city well) 
• to down tone (The employee almost quit, He sorta felt betray) 

Further ReferencesOxford Online English A Letter to Stephen King from the American Adverb Association
Jordan E. Bublick is a Miami Bankruptcy Lawyer