Part 15 (1/2)

38. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 n. 59 (1940).

See Michael Boudin, ”Ant.i.trust Doctrine and the Sway of Metaphor,” 75 Georgetown Law Journal 395 (1986); Chad M. Oldfather, ”The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions,” 27 Connecticut Law Review 17 (1994). See generally Bernard J. Hibbitts, ”Making Sense of Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse,” 16 Cardozo Law Review 229 (1994).

*New York law evidence illegally seized by the police is nevertheless admissible in a criminal trial.40 Cardozo packed into eleven words the case against the exclusionary rule (a rule that the Supreme Court later, however, imposed on the states in the name of the Fourth Amendment): ”The criminal is to go free because the constable has blundered.” Compression is not the only virtue of this sentence. The subst.i.tution of the slightly archaic (even in 1926) word ”constable” for ”policeman” is inspired. It not only improves the rhythm of the sentence and by its faintly exotic air makes the sentence more memorable; it also makes the abuse of power by the police seem trivial, almost comical. The ”constable” puts the reader in mind of the unarmed British policeman, so different (in legend anyway) from his rough American counterpart. And Cardozo's constable is not a uniformed thug but a blunderer-a Gilbert and Sullivan constable whose pratfalls are unlikely to strike anyone as a menace to personal liberty.

Inverting subject and predicate is a signature of Cardozo's style: ”Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage.”41 The inversion puts the reader off at first but turns out to be an effective method of emphasizing key words (”negligent” and ”wrongful” in the pa.s.sage just quoted). Such departures from standard word order, and the frequent use of metaphor and aphorism, are what detractors have in mind when they call Cardozo's style ”ornate.” It is not ornate, at least in his judicial opinions. An ornate style is one rich in subordinate clauses, parentheses, digressions, redundancies, and other curlicues. Cardozo's inversions of standard word order and his use of metaphor and aphorism make for concision and vivacity.

The style of Cardozo's nonjudicial writings is more florid than that of his judicial opinions, and this has colored impressions of his opinion writing. Here is an example: ”Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that 150 N.E. 585, 587 (N.Y. 1926).

Palsgraf v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928).

they obey the bidding of their office. The victim is offered up to the G.o.ds of jurisprudence on the altar of regularity.”42 Extended-indeed extravagant-metaphor, a tone arch and coy, an incongruous allusion to the Aztecs' practice of human sacrifice, and staccato sentences lending a dramatic air to the proceedings-these are hallmarks of the overripe style found in many of Cardozo's nonjudicial writings. But there is good stuff in them as well, such as this graceful tribute to John Marshall: ”He gave to the const.i.tution of the United States the impress of his own mind; and the form of our const.i.tutional law is what it is, because he moulded it while it was still plastic and malleable in the fire of his own intense convictions.”43 Cardozo's style has a high sheen, an artifactual quality that makes the reader conscious of his opinions as works of judicial art. The opinions of his approximate contemporary Learned Hand are successful imitations of the judge's thinking process as he wrestles with a case. It twists and turns as the judge is pulled hither and yon by the weight of opposing considerations as they present themselves to his mind. Hand is the Henry James of judicial stylists. Cardozo's style suggests a smoother surface, Hand's (of which I'll give an example later) a greater depth.

Unlike Cardozo, Holmes wrote as well off the bench as on. Here is a short pa.s.sage from a speech he gave in 1886 to students at the Harvard Law School: ”The Professors of this School have said to themselves more definitely than ever before, We will not be contented to send forth students with nothing but a rag-bag full of general principles-a throng of glittering generalities, like a swarm of little bodiless cherubs fluttering at the top of one of Correggio's pictures.”44 Holmes makes his point memorable first by adopting a dramatic mode (”the Professors of this School have said to themselves . . . We will” rather than ”the Professors of this School are not content to . . .”) and then by heaping up images. Two metaphors (”a rag-bag full of general principles” and ”a throng of glittering Cardozo, ”The Growth of the Law” (1924), in Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe 219 (Margaret M. Hall ed. 1947).

43. Cardozo, The Nature of the Judicial Process 169170 (1921).

Oliver Wendell Holmes, ”The Use of Law Schools,” in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. 224, 227 (Richard A. Posner ed. 1992).

*generalities”), the second employing consonance, precede the climactic simile (”like a swarm of little bodiless cherubs fluttering”). The ”swarm of little bodiless cherubs” is a master stroke. Cherubs are indeed little and bodiless; but describing them so makes them the very quintessence of ineffectuality. That they are in a picture, and, even more, that they are fluttering at the top of the picture and thus at the edge of the viewer's focus, make the image in the reader's mind (the reader is not the viewer) even sharper. Notice also how the progression-general principles, glittering generalities, bodiless cherubs-enables the reader to accept a simile that, without any preparation, might have seemed grotesque. An abstraction (”general principles”) is made visualizable.

Holmes's beat was not limited to law. Here is the peroration of one of his after-dinner speeches: . . . I think it not improbable that man, like the grub that prepares a chamber for the winged thing it never has seen but is to be-that man may have cosmic destinies that he does not understand. And so beyond the vision of battling races and an impoverished earth I catch a dreaming glimpse of peace.

The other day my dream was pictured to my mind. It was evening. I was walking homeward on Pennsylvania Avenue near the Treasury, and as I looked beyond Sherman's Statue to the west the sky was aflame with scarlet and crimson from the setting sun. But, like the note of downfall in Wagner's opera, below the sky line there came from little globes the pallid discord of the electric lights. And I thought to myself the Gotterdammerung will end, and from those globes cl.u.s.tered like evil eggs will come the new masters of the sky. It is like the time in which we live. But then I remembered the faith that I partly have expressed, faith in a universe not measured by our fears, a universe that has thought and more than thought inside of it, and as I gazed, after the sunset and above the electric lights there shone the stars.45 This is prophecy in prose poetry. (Notice the rhetorical effectiveness of Holmes's economical use of commas, and the short plain sentence-”It is 45. Holmes, ”Law and the Court,” in id. at 145, 148.

like the time in which we live”-placed between two lovely sinuous long sentences.) It is, indeed, a distant cousin of ”The Second Coming.” Maybe not so distant. Like Yeats's poem, Holmes's peroration is about a rebirth at once sinister and thrilling. The house of the old G.o.ds is going up in flames, as in Wagner's opera. The new G.o.ds, the G.o.ds of technology, symbolized by the street lamps pregnant with fearful possibilities, appear just as the old G.o.ds are flaming out. But their reign is short. Immediately the stars-the symbols of the universe that contains man and his projects along with everything else (”a universe not measured by our fears” is a beautiful touch)-appear, the real rulers, dispelling the fear engendered by man's ”evil eggs.” Not for nothing was Holmes the cla.s.s poet of his graduating cla.s.s at Harvard College.46

Aesthetic Integrity and the ”Pure” versus the ”Impure” Style Judges may be able to obtain insights from literature that have nothing to do with effective presentation, that have rather to do with the spirit, meaning, values, even information (the novel as news) found in literature; I consider those possibilities in Part III of this book. Here I want to abstract from the ethical and informational content of literature and direct attention to the craft values displayed in it, notably impartiality (detachment, balance, an awareness of the possibility of other perspectives than the writer's own), scrupulousness, and concreteness. These values, formalistic in character because independent of the content of the work, add up to aesthetic integrity and should be demanded of judicial opinion writers.

To read The Merchant of Venice without preconceptions (as if that were possible!) is to have no doubt that Shylock is a villain; likewise Satan in Paradise Lost, though the contrary has long been argued.47 If you read the Of course, judges are not the only authors of distinguished legal prose. Besides countless briefs of high quality, including some by Abraham Lincoln, but generally of ephemeral interest, and some notable oral arguments such as Robert Jackson's closing argument to the Nuremberg Tribunal, works of scholars.h.i.+p and polemic by law professors have occasionally touched the rhetorical heights.

See, for example, William Empson, Milton's G.o.d (2d ed. 1981). The orthodox view is forcefully restated in Jeffrey Burton Russell, Mephistopheles: The Devil in the Modern World 95127 (1986).

*Iliad carefully you can have no doubt that you are meant to think it a fine thing that the Trojans are going to be slaughtered. And no reader of For Whom the Bell Tolls doubts that Hemingway sides with the Spanish Loyalists. But in none of these cases has the author loaded the dice by depriving the villains of their essential humanity (in the case of Satan, his ”angelicity”). Forgoing the facile triumph, the author makes the reader see the situation from the villain's point of view too. To visualize a Jew as fully if wickedly human was something few Elizabethans could have done; Shakespeare's great contemporary Christopher Marlowe did not try to do it in The Jew of Malta. To portray Satan as a heroic figure, Milton was bordering on blasphemy. Dante puts Paolo and Francesca in h.e.l.l but treats them sympathetically-the pilgrim Dante (Dante the character in the Divine Comedy, as distinct from Dante the author of it) faints at Francesca's telling of her story. The Iliad is the oldest surviving expression of awareness that foreigners who are your mortal enemies might nevertheless have the same feelings as you. Hemingway ”refuses to make villains of all the Fascists in For Whom the Bell Tolls or to make all the Loyalists good and decent people.”48 Stendhal, as hostile as he was to the Church and the n.o.bility, nevertheless refuses in The Red and the Black to romanticize liberals, peasants, republicans, the bourgeoisie, or Bonapartists (he had worked for Napoleon).

One-sidedness troubled the New Critics about Romantic poetry. (Recall from chapter 8 Cleanth Brooks's suggestion that tragedy needs an element of the comic in order to provide a balanced picture of the human situation.) Keats's ”Ode to the Nightingale” contrasts the world of the nightingale (singing of summer in full-throated ease, pouring forth its 48. An observation by Cleanth Brooks quoted in Robert Penn Warren, ”A Conversation with Cleanth Brooks,” in The Possibilities of Order: Cleanth Brooks and His Work 1, 16 (Lewis P. Simpson ed. 1976). With the second half of Brooks's remark (”or to make all the Loyalists good and decent people”) compare Shakespeare's refusal to make all the Christians in The Merchant of Venice good and decent people. Indeed, it has been argued (though with exaggeration) that ”what Shakespeare is saying in The Merchant of Venice is that Jews are bad, but Christians are just as bad . . . The only practising Christian in the play is Portia, who, as a female barrister, cannot possibly exist.” W. D. Rubinstein, A History of the Jews in the English-Speaking World: Great Britain 41 (1996).

soul abroad in such an ecstasy, etc.) with the human world, described as follows: The weariness, the fever, and the fret Here, where men sit and hear each other groan; Where palsy shakes a few, sad, last gray hairs, Where youth grows pale, and spectre-thin, and dies, Where but to think is to be full of sorrow And leaden-eyed despairs, Where Beauty cannot keep her l.u.s.trous eyes, Or new Love pine at them beyond to-morrow.

This is wonderful poetry, but the human world is not so bleak as Keats pretends. The extremes of bliss and misery that the poem depicts make it a fairy tale in verse. And when Sh.e.l.ley in ”The Mask of Anarchy” urges the common people of England to ”shake your chains to earth like dew” and promises that ”tyrants would flee / Like a dream's dim imagery,” he is belittling the struggle for liberty by making its enemies appear insubstantial.49 And remember Wordsworth's six-year-old philosopher? Absence of a mature awareness of the finitude of human capability was one of the things that turned the New Critics (along with their religiosity and conservative politics) against much Romantic poetry.

Judges, too, though at a vastly lower level of eloquence, seek rhetorical triumphs by one-sided presentations. Consider the Supreme Court's opinion in Eisenstadt v. Baird. The issue was whether a state could forbid the sale of contraceptives to unmarried persons. The Supreme Court had held in an earlier case that the state could not forbid such a sale to married persons, but now it denied that marriage made any difference: ”The marital couple is not an independent ent.i.ty with a mind and heart of its own, but an a.s.sociation of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person 49. Thomas R. Edwards, Imagination and Power: A Study of Poetry on Public Themes 167 (1971).

*as the decision whether to bear or beget a child.”50 The dice are loaded. No one is likely to describe a married couple as ”an independent ent.i.ty with a mind and heart of its own” or to defend ”unwarranted” government intrusion. The Court is lazily knocking down straw men with italics. Had it said the issue was whether a state is const.i.tutionally obligated to allow the sale of goods that facilitate fornication and adultery by making these practices less risky, its refutations would not have sounded so convincing.

The most remarkable a.s.sertion in the pa.s.sage is that if the right of privacy means ”anything,” it means that unmarried people are ent.i.tled to buy contraceptives. This is to say, preposterously, that until 1972, when the Supreme Court decided the case (or maybe 1970, when the court of appeals rendered its decision, which the Supreme Court affirmed), there had been no right of privacy in American law.

The second component of aesthetic integrity, ”scrupulousness”-the search for the exact word and phrase-is found in those sentences in which, as T. S. Eliot explained in ”Little Gidding,”

. . . every word is at home, Taking its place to support the others, The word neither diffident nor ostentatious, An easy commerce of the old and the new, The common word exact without vulgarity, The formal word precise but not pedantic, The complete consort dancing together.

The metaphysical poets and their modern avatars, such as Eliot himself, ill.u.s.trate this ideal in poetry. Examples from prose writers include Flaubert, James, Joyce, Woolf, Kafka, and Philip Roth (recall my quotations from Operation Shylock). Contrasting Kafka with one of his imitators, Ronald Gray shows how Kafka's superiority derives in part from the sobriety and restraint of his style-his refusal to strive for the sensational effects that his frequently fantastic subject matter might seem to invite.51 405 U.S. 438, 453 (1972).

Gray, Franz Kafka 1028 (1973). See also Joseph Strelka, ”Kafkaesque Elements in Upon returning to Denmark following his aborted voyage to England, Hamlet writes the following letter to Horatio (IV.4.1228): Horatio, when thou shalt have overlooked this, give these fellows some means to the king: they have letters for him. Ere we were two days old at sea, a pirate of very warlike appointment gave us chase. Finding ourselves too slow of sail, we put on a compelled valour; in the grapple I boarded them: on the instant they got clear of our s.h.i.+p, so I alone became their prisoner. They have dealt with me like thieves of mercy, but they knew what they did; I am to do a good turn for them. Let the king have the letters I have sent; and repair thou to me with as much haste as thou wouldst fly death. I have words to speak in thine ear will make thee dumb; yet are they much too light for the bore of the matter. These good fellows will bring thee where I am. Rosencrantz and Guildenstern hold their course for England: of them I have much to tell thee. Farewell.

An adventure is narrated with high drama, extreme economy, and effortless grace, yet without any sacrifice of clarity or straining for effect. This is prose at its most exact yet elegant. It was written by a genius, but it is just a letter and it is not obvious that a modern judge could not write a judicial opinion as well as that letter is written. But it was written more than 400 years ago and in the interim the literary culture of the English-speaking world has deteriorated.

As an example of the third element of what I am calling aesthetic integrity, ”concreteness,” consider once again ”The Second Coming,” this time the beginning of the second stanza: Surely some revelation is at hand; Surely the Second Coming is at hand. The Second Coming! Hardly are those words out When a vast image out of Spiritus Mundi Troubles my sight . . .

Kafka's Novels and in Contemporary Narrative Prose,” 21 Comparative Literature Studies 434435 (1984).

*I invite the reader's attention to the word ”sight” in the fifth line. One is likely to remember it as ”mind”; a vision is something in the mind. But to a poet it is something one sees, because what one sees is real but what one imagines is often imaginary, and the poet wants to make the reader believe in the reality of the vision. The use of visual or tactile imagery to drive home a point imparts concreteness to a writing-a quality that Holmes's writing had (remember the fluttering cherubs, the Fallopian tubes, the grub, the street lamps, and the evil eggs) but modern judicial opinions only rarely. Justice Potter Stewart said that he could not define p.o.r.nography but ”I know it when I see it, and the motion picture involved in this case is not that.”52 The candor (in acknowledging the limits of legal reasoning) and bluntness of this statement made a refres.h.i.+ng contrast to the characteristic evasions found in judicial opinions.

An example of such evasion is found in c.o.x Broadcasting Corp. v. Cohn. The case holds that the First Amendment forbids a state to award damages to the family of a rape victim killed by the rapist; the damages were sought to compensate the family for the invasion of privacy caused by broadcasting the victim's name. The first sentence in the opinion after the statement of the issue to be decided reads, ”In August 1971, appellee's 17-year-old daughter was the victim of a rape and did not survive the incident.”53 The words ”did not survive the incident” are unconsciously borrowed from the standard phraseology for describing a medical procedure in the course of which the patient dies: ”X was operated on for a tumor but did not survive the operation.” No normal person says, ”X was shot, and did not survive the incident”; he says, ”X was killed.” The Court s.h.i.+ed away from stating the blunt truth. It euphemized, smoothing the way for the opinion's startling conclusion that the First Amendment immunizes from legal liability the public dissemination of the macabre and irrelevant detail of a murder victim's name. Notice also the vagueness of ”did not survive the incident”; it makes it sound as if she died of embarra.s.sment.

The avoidance of the concrete is ubiquitous in legal prose. To a judge Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

420 U.S. 469, 471 (1975).

or a legislator a 14-year-old pregnant girl is a ”minor pregnant woman” and a 12-year-old murderer a ”delinquent minor.”54 More than euphemizing is involved; the legal mind is insensitive to the imagery of language. Consider the standard legal cliche for the abortion cases: ”Roe and its progeny.”55 A person who writes that is ”not seeing a mental image of the objects he is naming.”56 A judge who is comfortable using the word ”progeny” to describe the ”descendants” of the case that legalized abortion is thinking of abortion abstractly. Judges who write in abstractions are in danger of losing sight of the consequences of their decisions by fooling themselves that they inhabit a purely conceptual realm.

The New Critics criticized Sh.e.l.ley for images that could not be visualized, as in this pa.s.sage from the ”Ode to the West Wind”: ”Thou on whose stream,'mid the steep sky's commotion,/Loose clouds like Earth's decaying leaves are shed,/Shook from the tangled boughs of Heaven and Ocean,/Angels of rain and lightning.” The New Critics contrasted such imagery with that of the metaphysical poets, whose imagery, however fantastic, could be readily visualized, as in (once again) ”A Valediction: Forbidding Mourning”: If they [our two souls] be two, they are two so As stiff twin compa.s.ses are two, Thy soul the fixed foot, makes no show To move, but doth, if th'other do.

And though it in the center sit, Yet when the other far doth roam, Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198, 1205 n. 4 (6th Cir. 1981), affirmed in part and reversed in part on other grounds, 462 U.S. 416 (1983); In re Hester, 446 N.E.2d 202, 204 (Ohio App. 1982). See also, for example, Scheinberg v. Smith, 659 F.2d 476, 479 (5th Cir. 1981); Virgin Islands v. D.W., 3 F.3d 697, 698 n. 1 (3d Cir. 1993).

See, for example, Rust v. Sullivan, 500 U.S. 173, 216 (1991) (dissenting opinion); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 420 n. 1 (1983); Harris v. McRae, 448 U.S. 297, 312 (1980); Myers v. State, 94 P.3d 211 (Utah 2004); Coleman v. DeWitt, 282 F.3d 908, 913 (6th Cir. 2002). The reference of course is to Roe v. Wade, 410 U.S. 113 (1973).

George Orwell, ”Politics and the English Language,” in The Collected Essays, Journalism and Letters of George Orwell, vol. 4, pp. 127, 134 (Sonia Orwell and Ian Angus eds. 1968).

*It leans, and hearkens after it, And grows erect, as that comes home.

The criticism of Sh.e.l.ley for failing to conform to the style of the metaphysical poets is unjust. He was striving for different effects,57 and succeeding; the ”Ode to the West Wind” is one of the greatest poems in the English language. But the metaphysicals are a better model for judges than Sh.e.l.ley is, because judicial opinions need to be clear and this requires a commitment to concreteness that eludes most judges. One of the fundamental concepts in law is causation, since behavior that has no adverse effect is, however disreputable, a poor candidate for civil (as distinct from criminal) liability, where the operative principle is no harm, no foul. Yet instead of speaking simply of ”cause,” judges prefer to speak of ”proximate cause,” and to define it as something ”that produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause.”58 What they mean is that a ”cause” is an act that made it probable that some other act would occur (and the probability materialized), and that is what they should say, and would say if they did not have an aversion to plain speaking. That aversion wells up from a Huld-like concern with maintaining law's mystique by using language in a way that will intimidate the laity because of its incomprehensibility. Legal language serves the same function as the Latin ma.s.s.

I can systematize my remarks about aesthetic integrity by noting and naming a fundamental split among judicial opinions. On one side of the divide are opinions that have a lofty, formal, imperious, impersonal, ”refined,” ostentatiously ”correct” (including ”politically correct”), even hieratic tone; on the other side are forthright, conversational, intimate, even demotic opinions. Tone depends on many things, including choice 57. As acknowledged by one of the leading New Critics in his comparison of the two poems. William K. Wimsatt Jr., ”Romantic Nature Poetry,” in Wimsatt, The Verbal Icon: Studies in the Meaning of Poetry 103, 115116 (1954). But his preference for Donne's poem is apparent. On the precision of the compa.s.s imagery in the poem, see also Ramie Targoff, John Donne, Body and Soul 74 (2008).

58. Cleveland v. Rotman, 297 F.3d 569, 573 (7th Cir. 2002).

of words and phrases and the decision to embrace or avoid contractions, colloquialisms, humor, and jargon. By ”jargon” I do not mean the names of legal doctrines, which judicial opinions could not dispense with. I mean turns of phrase, usually archaisms or shorthand, that judges and other lawyers use but other writers avoid.59 These usages are eminently avoidable by judges too, for if they were not, they would not mark a style; styles are optional. They stamp legal prose as legalese, imparting an in-group, ”professional” tone to legal writing. The disappearance of an older legal jargon, with its ”aforesaids” and its subst.i.tution of ”one” for a first name (”a witness, one Jones, testified that . . .”), fools modern judges into thinking that their opinions are free from jargon.

Short sentences and sentence fragments, suppression of ornamentation and parentheticals, and simplicity and brevity all tend to lower the tone of a writing, to make it more like speech. But the qualification implicit in ”tend” is important. The elimination of all ornamentation may impart an impersonal, bureaucratic, hence formal tone to a writing. Brevity may lend a dogmatic air, and a string of short sentences can create the impression of a harangue.

The avoidance of headings and subheadings, and of course of footnotes, has a lowering effect because they are scholarly appendages. Paratactic (coordinate) sentence structure, in which clauses are connected by ”but” or ”and,” lowers tone, while arranging the clauses in a sentence hierarchically by use of subordinating or concessive conjunctions such as ”although” (hypotactic sentence construction) raises tone because such sentences are more difficult to understand. A proclivity for acronyms raises tone by making a work seem technical; a fondness for everyday speech lowers it. Tone is raised by polish, lowered by candor and sponta 59. Such as ”absent” when used as a preposition, ”implicate” (to mean relate to or invoke, as in ”the due process clause implicates privacy concerns”), ”ambit,” ”chilling effect” (to describe the effect of the regulation of speech on the marketplace of ideas and opinions), ”-based” (as in ”autonomy-based justification”), ”habeas” (for habeas corpus), ”instant” case for ”present” case, ”construction” (to mean interpretation), ”facially” (explicitly), ”impeach” to mean ”contradict,” ”gravamen” (ground, meaning), ”simpliciter” (solely), ”arguendo” (it could be argued), ”even had we” (that is, ”even if we had”), ”mandate” (as a verb meaning to order or require), ”nexus” (connection), ”p.r.o.ng” (as meaning one element of a multifactor test or standard), and-of course-”progeny.” For other examples and searing criticism, see Garner et al., note 6 above, 11.