LawProse Lesson #108

Should you avoid using sanction for fear of being misunderstood? Is its use sanctionable?       ANSWER: No, as long as your prose makes the contextual meaning clear. Sanction is a contronym: a word that bears contradictory senses. Think of oversight, which can mean either “responsible supervision” <the CFO has oversight of all budget matters> or “careless neglect” <the CFO called the missing $6 million an oversight>. As a verb, sanction can mean either (1) to approve <the commissioner is expected to sanction the new team’s mascot and logo>; or (2) to penalize <the court sanctioned the lawyer for violating local rules>. Because nonlawyers usually understand the verb sanction in sense 1 (in fact, Merriam-Webster’s Collegiate Dictionary 11th ed. doesn’t even list sense 2), lawyers who use it in sense 2 are liable to be misunderstood. As a noun, sanction is burdened by the same ambiguity, meaning either (1) approval <the board’s sanction of the policy>; or (2) penalty <governmental sanctions for misuse of funds>. A dominant noun sense today is “economic action taken by one or more governments against another or others, usu. to enforce a violated law or treaty.” The lexicographer Eric Partridge recognized four meanings for the noun: (1) reward, (2) punishment, (3) authority or official permission, and (4) a specialized political sense of penalty, as punitive sanction. As a noun or as a verb, sanction might — however briefly — confuse a reader. So there is room for trouble with the word. But careful legal writers can avoid miscues by placing sanction in a descriptive context. Consider: * The government officially sanctions solar power and offers tax breaks to encourage research. * The court will sanction a party who refuses to comply with the court’s order. * You may face a fine or other sanction. Using phrases such as give sanction to (“approval”) and issue sanctions against (“disapproval”) is another way to make your meaning unmistakable to the reader. To prevent misunderstandings, sloppy legal writers should probably avoid using sanction altogether — but they’re the least likely to use care. So good luck there. Crafting a well-written sentence with the word is quite doable. Let’s sanction the clear use of the word, while sanctioning the unclear uses. Sources: Garner’s Dictionary of Legal Usage 796 (3d ed. 2011). Garner’s Modern American Usage 200-01, 727 (3d ed. 2009). Merriam-Webster’s Collegiate Dictionary 1100 (11th ed. 2003).. Eric Partridge, Usage and Abusage 364 (1982). R.W. Burchfield, The New Fowler’s Modern English Usage 686-87 (3d ed. 1996). Thank you to John N. Love, a lawyer at Robins, Kaplan, Miller & Ciresi, for suggesting this topic.