LawProse Lesson #105

LawProse Lesson #105

What does Bryan Garner have against “pursuant to”? ANSWER: It’s pure legalese. Lawyers are the only ones who use it — and never as a term of art. Worse still, it’s imprecise legalese. Because pursuant to can mean many things, it’s confusing and ineffective. Here are some typical examples of how lawyers use the phrase:
  • for under: <pursuant to [read under] the court’s decision, the statute is unconstitutional>;
  • for as required by: <board meetings are held monthly pursuant to [read as required by] the company’s bylaws>;
  • for as authorized by: <pursuant to [read as authorized by] the I.R.C., she may claim the children as dependents>;
  • for in carrying out: <pursuant to [read in carrying out] the duties of Vice President, Mr. Biden cast the deciding vote>; and
  • for for: <the prisoner is in jail pursuant to [read for] a 2010 robbery conviction>.
It’s true that some of the replacement phrases contain an additional word. But their advantage is that each is plain English — not in-group jargon. Given the varied uses of pursuant to, it can hardly be considered a useful phrase — especially given the ambiguities where it could mean either as required by or as authorized by. Drafting a legal instrument with the phrase can create uncertainty in interpretation, leading to headaches (and potential liability) for lawyers and their clients. Eric Partridge mistakenly labeled pursuant to as “officialese for after.” It may be officialese, but it is rarely used to mean after. R.W. Burchfield wrote that it “is regarded by modern grammarians as a complex preposition and by an older school . . . as a quasi-adverb.” Burchfield defines a quasi-adverb as a word in a “smallish group of adjectives [that] are idiomatically used in such a manner as almost to fall into the broad class of adverbs.” But no matter how you choose to label the phrase grammatically, if you value precision and seek to rise above mediocre legal writing, strike pursuant to from your vocabulary. Sources: Garner’s Dictionary of Legal Usage 737-38 (3d ed. 2011). The Winning Brief 250-51 (2d ed. 2004). Eric Partridge, Usage and Abusage 264 (1982). R.W. Burchfield, The New Fowler’s Modern English Usage       641, 643 (3d ed. 1996).

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