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THE SCRIVENER English Test for Lawyers: Fall Semester 2020 by Scott Moïse

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THE SCRIVENER English Test for Lawyers: Fall Semester 2020 by Scott Moïse THE SCRIVENER English Test For Lawyers: Fall Semester 2020 By Scott Moïse Professor Scrivener noticed that methods and substance, not ipse “Deserts” means “the punish- our South Carolina lawyers have dixit). ment that one deserves.” See “Just not had a test for two years. That Deserts” or “Just Desserts?, Mer- will never do. To make sure that EXTRA CREDIT: Translate “De Natu- riam-Webster.com Dictionary, your skills are still sharp, we will ra Deorum.” https://www.merriam-webster. have a Fall Semester COVID-19 re- com/dictionary/just%20deserts. mote edition of the English Test for 2. Who let the dogs out? Not ____! “Desserts” means “a sweet course Lawyers. You may begin. (A) I or dish served at the end of a (B) Me meal.” Id. at https://www.merri- 1. The court ruled that the expert’s am-webster.com/dictionary/des- testimony was based on reliable ANSWER: sert. The two words have the same methodology, not ipse dixit. What (A) I pronunciation, so the confusion is is ipse dixit? The pronoun “I” is in the nomi- understandable. (A) an unproved or dogmatic native case, so “I” is used for sub- Justice Scalia knew the answer statement jects in a sentence. In this situa- to this question. See Brown, 564 U.S. (B) false underlying premises tion, “I” is the subject because I am at 796 (quoting The Complete Broth- (C) junk science doing the acting: “I did not let the ers Grimm Fairy Tales 198 (2006 ed.). dogs out.” In fact, 439 opinions have gotten ANSWER: The pronoun “me” is in the ob- it right. Unfortunately, 179 court (A) Something said but not proved; jective case, so it is used for objects opinions have not, with the U.S. a dogmatic statement in a sentence. For example, “Who District Court of Nevada being the As readers with good memories did the dog bite?” Not me! In that latest outlaw. See Atkins v. Gittere, may remember, we covered the situation, I am being acted upon by No. 202CV01348JCMBNW, 2020 meaning of the Latin phrase “ipse the dog. WL 3893628, at *43 (D. Nev. July 10, dixit” in a previous column, but Even though grammatically 2020) (“Only [after the sentencing that was before the South Carolina correct, saying “not I” may sound a phase of a capital trial] can the Court of Appeals used the phrase little pretentious, like I think I am sentencer truly weigh the evidence and was astute enough to define it, Queen Elizabeth or something. On before it and determine a defen- knowing that some of us would not the other hand, I do not want to dant’s just desserts.”). know the meaning: use poor grammar. Therefore, I will As for “dessert’s,” I would have just evade the problem by answer- to subtract points if you chose that The phrase “ipse dixit,” which ing like this: I did not let the dogs answer. “Desserts” is not only the translates as “he himself said out. That solves the problem. Woof, wrong word, it is not being used it,” was coined by Cicero, who woof, woof, woof, woof. as a possessive noun that would used it to belittle the reasoning require an apostrophe (as in “I ate and argumentative powers of 3. “As her just _________ for trying the dessert’s frosting”), and YOU the followers of Pythagoras. to poison Snow White, the wick- CANNOT USE AN APOSTROPHE TO When asked to justify their po- ed queen is made to dance in red MAKE THE WORD PLURAL. I cannot sitions, the followers would just hot slippers ‘till she fell dead on say that enough. say “ipse dixit,” opting out of the the floor, a sad example of envy merits of the debate altogeth- and jealousy.’ ” Brown v. Entm’t 4. According to The Bluebook, er. Cicero, De Natura Deorum, Merchants Ass’n, 564 U.S. 786, 796 which words should be italicized I.V. (H. Rackham trans., Loeb (2011). in the following case citation: Classical Library 1933). (A) deserts See, e.g., Turner Mfg. Co. v. Watson, State v. Warner, 430 S.C. 76, 87 n.1, (B) desserts 395 F. Supp. 3d 352, 360 (D.S.C. 2019) 842 S.E.2d 361, 366 n.1 (Ct. App. (C) dessert’s (Garfinkle, J., dissenting) (empha- 2020) (holding that the expert’s sis added) (citing Lietzow v. Hill St. testimony on cell site location ANSWER: Chem. Corp., 299 F. 2d 44, 48 (3d Cir. information was based on reliable (A) deserts 2015)), (reversing trial court’s ap- 64 SC Lawyer plication of the maxim “expressio either-or position without consider- 2020 WL 3848063, at *26–27 (U.S. unius est exclusio alterius”), cert. ing all relevant possibilities July 9, 2020), the U.S. Supreme denied, 930 F.2d 22 (4th Cir. 2020). Court reversed three sexual assault ANSWER: convictions because the state court ANSWER: Answer (B). In Herrera v. Finan, 176 F. lacked jurisdiction over the defen- See, e.g., Turner Mfg. Co. v. Watson, Supp. 3d 549 (D.S.C. 2016), a pro- dant, a member of the Seminole 395 F. Supp. 3d 352, 360 (D.S.C. 2019) spective college student sued the Nation of Oklahoma. Jurisdiction (Garfinkle, J., dissenting) (empha- South Carolina Commission on rested on the issue of whether the sis added) (citing Lietzow v. Hill St. Higher Education (CHE) when—al- land granted to the Native Amer- Chem. Corp., 299 F. 2d 44, 48 (3d though she had been a resident ican Indian Nation had retained Cir. 2015)), (reversing trial court’s of this state for almost her whole its status as a reservation. The application of the maxim “expressio life—she was denied residency majority ruled that it did because unius est exclusio alterius”), cert. status for tuition and scholarship Congress has not adopted any denied, 930 F.2d 22 (4th Cir. 2020). purposes because she was a de- single statute that explicitly termi- pendent child of undocumented nates that status. In Chief Justice •Italicize or underline signals such immigrants. Under CHE regula- John Roberts’ dissent, he argued as see; see, e.g.,; and cf., including tions, a dependent child of undocu- that the majority had made several any periods in signal abbrevia- mented immigrants was presumed arguments to show that Congress tions (such as e.g.); however, do to be a non-resident. In support of had not explicitly disestablished not italicize or underline the com- her due process claim, the student the reservation, none of which ma after “e.g.” argued that even if this presump- he believed had any relevancy to •Italicize or underline case names. tion was rebuttable, the regulation the point of the matter. “This,” he •Italicize or underline explanatory still burdened her familial right of stated, “is a school of red herrings.” phrases in prior or subsequent association because rebutting the Id. at 26 (Roberts, C.J., dissenting). history, such as aff’d, vacated, presumption would interfere with “School of red herrings”: priceless. remanded to, rev’d en banc, overruled her right to live with her parents • Answer (C) is a false dilemma: an by, and superseded by statute. and require her to disassociate argument that presents an •However, do not italicize or un- from her parents and their support. either-or position without derline phrases in related author- The court disagreed: considering all relevant ity parentheticals such as “con- possibilities. curring,” “dissenting,” “citing,” and This argument is a straw man. “translating.” It assumes without justifica- For example, in Simmons v. South •Italicize non-English words and tion that in order to rebut the Carolina, 512 U.S. 154, 171(1994), the phrases unless they have been in- presumption a dependent stu- jury was presented with evidence corporated into common English dent would need to become an of the defendant’s future danger- usage. Latin words and phrases independent person under the ousness if he were to be released, that are often used in legal writ- applicable regulations. Rather, setting up an either-or argument: ing are considered to be in com- as clearly elucidated in the CHE either sentence the defendant to mon English usage and should guidance document, a depen- death or he will be a dangerous not be italicized. However, very dent student with undocu- threat to society. The Supreme long Latin phrases and obsolete mented parents may be granted Court realized the fallacy of this or uncommon Latin words and in-state residency status if he argument: phrases should remain italicized. or she provides sufficient evi- See The Bluebook: A Uniform System dence of South Carolina resi- The State may not create a of Citation (21st ed. 2020). dency . false dilemma by advancing • This is for law nerds only: (1) The generalized arguments re- Bluebook rule for the order of Id. at 581 (internal citation omit- garding the defendant’s future parentheticals within a citation ted). dangerousness while, at the is Rule 1.5(b); (2) The new twen- same time, preventing the jury ty-first edition of the Bluebook 6. In Question 5 above, what are from learning that the defen- was just published. the names of the arguments set dant never will be released on forth in Answers (A) and (C)? parole. 5. What is a straw man argument? (A) an argument that misleads or ANSWER: 7. Judge Porter (stricked, struck, distracts from a relevant question, •Answer (A) is a red herring: an ar- strucked) the affidavit because it meant to lead to a false conclusion gument that misleads or distracts was not notarized. After the affida- (B) an argument that distorts the from a relevant question, meant vit was (stricked, struck, stricken, speaker’s own position to make it to lead to a false conclusion.
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