9th Circuit, Alex Kozinski, Benchslaps, Diarmuid O'Scannlain, Federal Judges, Reader Polls

Grammer Pole of the Weak: ‘I Respectfully Dissental’

In our most recent Grammer Pole of the Weak, over two-thirds of you voted against the use of gender-neutral language, opting instead for the historic use of “he,” “him,” and “his” to cover both sexes. In the poll before that one, over 80 percent of you voted in favor of the serial comma. These results suggest that Above the Law readers are traditionalists in matters of grammar, usage, and writing style.

But back in August, 60 percent of you said that you are all right with “alright.” So perhaps ATL readers are open to the evolution of the English language and the creation of new words.

How do y’all feel about neologisms? Let’s look at two new words, coined by none other than the newly svelte Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit….

Here’s a report from John Roemer of the Daily Journal (subscription):

Even an unabridged dictionary isn’t big enough for Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals. So the noted wordsmith, whose opinions usually mix eloquence with fiery prose, has minted two new nouns — dissental and concurral — as shorthand descriptions of judges’ widening practice of delivering often-passionate commentary on failed en banc calls.

The court’s en banc procedures are important because they are used to decide key legal issues, often setting up critical disputes for resolution by the U.S. Supreme Court. Last year, the circuit decided 15 cases en banc out of about 12,000 appeals filed.

When the circuit’s 26 active judges vote against convening an 11-judge en banc panel to reconsider an earlier decision, the public announcement of the failed en banc call is often accompanied by a dissent by those on the losing side or a concurrence by those who agree the matter doesn’t warrant rehearing.

What is the purpose behind “dissentals”? The article explains:

Dissentals and concurrals can be a way to let off steam as judges who are outvoted by their colleagues display their displeasure, or, when in the majority, nod in agreement. Kozinski, who is considered an unpredictable libertarian, and the court’s star conservative, Diarmuid F. O’Scannlain, are frequent authors of dissentals.

(Disclosure: I clerked for the fabulous Judge O’Scannlain — and I’ll be attending his law clerk reunion, marking his 25th anniversary on the bench, next week. Speaking of clerking, we’ll be running an open thread on the clerkship application process, which is now in full swing. If you have tips to share, please email us, subject line “Clerkship Story.”)

Judge O'Scannlain, Mrs. O'Scannlain, and yours truly (at the 20th anniversary law clerk reunion).

The Daily Journal piece continues:

More importantly, dissentals are often designed as persuasive rhetoric tacitly addressed to the U.S. Supreme Court.

And the high court takes note. In the October 2010 term, it reversed the 9th Circuit 18 times. Five of the reversals followed failed circuit en banc calls that included dissentals. In half a dozen other cases since 2005, Supreme Court justices have quoted from 9th Circuit dissentals.

This is quite right. I’ve previously described dissenting from a denial of rehearing en banc as “the ‘Bat Signal’ flashed by right-of-center Ninth Circuit judges to the Supreme Court when the lefties run amok” (as they sometimes do on that notoriously liberal court). Judge O’Scannlain and Chief Judge Kozinski are particularly good at calling down the wrath of SCOTUS upon the Ninth Circuit.

Okay, let’s focus on the question presented for Grammer Pole. What should we make of the words “dissental” and “concurral”?

Two thumbs up -- but not for 'dissental.'

Let me give you my opinion (as the credited creator or popularizer of such terms as “benchslap,” “litigatrix,” and “judicial diva”). Although I am a huge fan of Chief Judge Kozinski — as reflected in these pages, and elsewhere — I am not a huge fan of “dissental” and “concurral,” for a few reasons:

1. They aren’t pretty words; in fact, they’re downright ugly. Aesthetic appeal counts for a lot with me.

2. The terms they seek to replace — “dissent from denial of rehearing en banc” and “concurrence in denial of rehearing en banc” — might be clunky, but appropriately so. They’re long and complicated, in a manner that captures the full glory, majesty, and complexity of federal appellate procedure.

Say this sentence aloud: “I dissent from the denial of rehearing en banc.” Doesn’t that sound magnificently grandiose? It seems fitting to me that only federal circuit-court judges, the closest thing our nation has to an aristocracy, are capable of engaging in the activity of “dissenting from the denial of rehearing en banc.”

3. There are other options. For example, taking a page from Supreme Court procedure, one could use acronyms. Sometimes SCOTUS will DIG a case — “Dismiss as Improvidently Granted.” Sometimes the Nine will CVSG in a case — “Call for the Views of the Solicitor General.”

So, with respect to the Ninth Circuit en banc process, perhaps a judge could “DDREB” — “Dissent from the Denial of Rehearing En Banc.” Like the term “DIG,” the term “DDREB” has the virtue of onomatopoeia — it sounds like what it describes. For example: “Did you read what Judge O’Scannlain wrote in al-Kidd v. Ashcroft? He sure gave the panel majority a DREBbing!”

But that’s just my opinion. What do the experts think?

Language guru Bryan A. Garner, author of Garner’s Modern American Usage and co-author (with Justice Scalia) of Making Your Case: The Art of Persuading Judges (affiliate links), sounds cautiously supportive of “dissental” and “concurral”:

“Any linguistic innovation by Alex Kozinski is worth taking seriously,” Garner said from his LawProse offices in Dallas. “These two words are what we call blends or portmanteau words. I can see how they’re quite handy, but I can’t record them in Black’s until they gain some currency beyond Chief Judge Kozinski.”

Fair enough. Let’s see what the prospects are for these words to catch on beyond His Honor.

Readers, what do you think? Debate in the comments, and vote in our poll:

Do you support use of the words 'dissental' and 'concurral'?

View Results

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Chief Judge Coins New Words for Failed Enbanc Calls [Daily Journal (subscription)]
New to the legal lexicon: dissental and concurral [Legal Research Plus]

Earlier: Prior Grammer Poles of the Weak

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