I must acknowledge at the outset that, to some extent, perception is reality when it comes to matters of style and usage.  (To quote Neil Young, “The picture painted here is not a dream; the only reality is the way it seems.”)  In other words, if you’re writing for a judge who views the use of contractions as the mark of fools (or as unasked-for cheek), then by all means, avoid them.  But what both you and the judge should be aware of is that in some cases, a contraction might be the absolute best way to communicate a thought persuasively and without risking a potential misreading.

Consider the following.  In other languages, certain contractions are actually mandatory.  In French, for example, you would never say or write ce est la vie.  Instead, you’d say c’est la vie (that’s life).  In Spanish, the preposition de (of) and the article el (the) are always combined into del (of the), perhaps so as to avoid being confused with de él (his/of him).  Similarly, in German, you’d probably be expected to write zum Kirche (to the church), not zu der Kirche.

In English, though, we don’t really turn prepositional phrases into contractions.  Instead, we contract do not into don’t, or does not into doesn’t, or even I will into I’ll.  In the first two of these examples, we’re actually blending together multiple words of disparate implication in order to create a single, cohesive verb concept.  The word do by itself is an action verb having an infinitive, affirmative character.  The word not is, of course, negative.  But when you put them together, you get a single syllable that can be used to communicate a host of important concepts in several verb moods:

• I don’t think that’s right.  « indicative mood
• Please don’t use split infinitives. « imperative mood
• Don’t you just love the new Lexus LFA? « indicative mood

The multi-conceptual quality of contractions often provides us with very handy usages that are much easier to say and more naturally understand than their spelled-out, formal versions:

• I wouldn’t open that file if I were you.
• Shouldn’t you be studying for the bar exam?

Handiness aside, contractions may provide advantages in terms of avoiding ambiguity and confusion of meaning.  Compare the last example above with its un-contracted variant:

Should you not be studying for the bar exam?

What is this sentence saying now?  In its “formal” configuration, it can almost be read with an emphasis on the word not, thus losing its suggestive quality and taking on a feebler, more inquisitive character.  Such an emphasis might also suggest (more strongly than it ought) that the writer has already come to a conclusion about whether the reader should be studying.  And we can’t fix this problem simply by getting rid of not, because the resulting interrogatory becomes far too general and loses context.  Furthermore, assuming we really want to retain the original meaning and posturing significance of the sentence, we can’t just turn the question into an imperative assertion (i.e., You should be studying for the bar exam), as that would strip the admonition of its subtlety.

I would love to provide you with scores of these examples, but I can’t at the moment—because I should be studying for the bar exam.  In any event, it should be clear that a contraction is sometimes the clearest way, grammatically speaking, to present something to the reader.

The next point is that contractions can also help avoid frustrating the reader, particularly in necessarily complex sentences.   Because of its distinct typographical profile, a contraction prevents our accidental failure to read an important standalone word that forms part of that its phrase.  Consider the following passages:

Unlike the person retarded from birth, the traumatic brain injury defendant will not receive an exemption from the death penalty under Louisiana law after the Louisiana Supreme Court ruled that the onset of impairment must occur before the age of eighteen to fall under the definition of mental retardation.  [Vidisha Barua Worley, From the Legal Literature, 46 Criminal Law Bulletin, art. 6 (2010).]

The firm will not accept an engagement from another client in the specified situations “unless we believe that our representation of that other client will not have an adverse effect on the exercise of our independent professional judgment on your behalf in the matters in which we represent you.”  [Michael J. Dell, Ethical Considerations in the Representation of Multiple Clients, in Practising Law Institute, PLI Ethics Programs - Summer 2010, at 275, 309 (2010).]

Note how a very important word—not—is buried in the middle of each of these sentences, sometimes more than once.  If you read either of these passages and happen to miss the “not,” the meaning of the text threatens to be reversed, and you quickly find yourself frustrated and confused, scrambling to re-read the sentence in order to make absolutely sure you know what’s going on.

The reason a contraction might be desirable in these situations is that it would provide a natural emphasis on the entire verb concept, which militates against reading one of the concepts (not) out of the sentence.  I call this a “natural emphasis” because the human eye is more aware of text containing non-letter markings—particularly those with contrasting angles or curvatures, like the apostrophe in the word won’t.  Typographers have recognized as much, and thus try to design apostrophes and quotation marks that are figured enough to get your attention but not so ornate as to distract you needlessly.  Anyhow, if we are more likely to pick up on words containing apostrophes, we are less likely to misread (or fail to read) the crucial verb concept if it is presented in a contraction.

Yet remarkably, as I hinted above, contractions can also be used to de-emphasize the verb concept they embody, allowing the eye to embrace the material surrounding the verb rather than getting hung up on a choppy, multisyllabic verb phrase to which the author doesn’t wish to draw attention.  Consider the following sentence by Eugene Volokh, who comes to mind as one of the authors who makes good use of contractions to maintain an appropriate grammatical mood and to create succinct and understandable prose:

And [even racially discriminatory] groups generally don’t pose the problems that have historically justified antidiscrimination law: expressive associations that have an expressive reason to discriminate offer only a small fraction of all the opportunities that are available to prospective members, and thus don’t risk systematically denying members of one group a livelihood, an opportunity to find shelter, or an education.  [Eugene Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919, 1927 (2006).]

Notice how the author’s focus in that sentence (unlike the emphasis in this one) is not on saying whether something “does” or “does not” do something.  His main objective is to give certain groups a certain legally significant characterization.  His use of the word don’t prevents the reader from ascribing unintended significance to the stiff, repetitive emphasis that would be presented by two same-sentence instances of the words do not.

In summary, it is not without reason that Rule 1.2(b) of the Texas Law Review’s Manual on Usage and Style advises us that although contractions “are less formal than spelled-out words,” they nevertheless “may be employed to good effect . . . .  No firm rule governs their use; simply know your audience and trust your ear.”

State and local governments certainly have some interest in seeing that their resources are not overburdened or exhausted by illegal aliens (for whom the pandering and more politically correct term now appears to be “undocumented immigrants,” by the way).  But the Equal Protection Clause imposes a rather peculiar balancing act on governments seeking to enact measures designed to mitigate illegal immigration-related problems.  The following is intended to be a very minimal equal protection overview for folks unfamiliar with constitutional law who wonder why their elected politicians aren’t doing more to crack down on illegal aliens in general.

» The Ground Rules of Equal Protection

Here are the basic legal principles.  The Equal Protection Clause comes from the Fourteenth Amendment to the federal Constitution, which says that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  In its most fundamental sense, this language prohibits laws that single out certain people based on their membership in some “class.”  In other words, laws ought to regulate all people equally, on the basis of their being people—not on the basis of their race or gender, for instance.  Accordingly, laws that are held to violate the Equal Protection Clause are generally those that operate on the basis of classifications of persons.

But not all classifications will render a law unconstitutional.  This is because the Supreme Court (and the lower courts that must follow its precedents) scrutinizes laws more or less harshly depending on what the classification actually is.  The chart below lists the different types of classes and the members of those classes, and states the degree of scrutiny (or type of analysis) the Court will apply in evaluating each:

The term “suspect” reflects the belief that the members of certain classes have traditionally or historically been subjected to invidious, arbitrary discrimination on the basis of that status.  Generally speaking, then, “suspect” might be thought of as interchangeable with “most vulnerable to unreasonable discrimination.”

The class targeted by a given law will usually depend on that statute’s actual language.  For example, if a town ordinance makes it unlawful to serve alcohol to a black male, two classes are involved: race and gender.  Race is a suspect class, so the ordinance would trigger the most rigorous form of judicial scrutiny.  The town would have to prove that the ordinance serves a “compelling” interest (e.g., the prevention of crimes or acts of violence in public) and that no alternative ordinance would serve that interest just as effectively without discriminating on the basis of race.  In this example, the town would fail, because the ordinance could easily be re-written to focus not on race, but on factors that are actually indicative of the behavior the town wants to prevent.

So if the town really wanted to discourage bar-room brawling without the risk of losing an Equal Protection Clause lawsuit, it could pass an ordinance prohibiting the consumption of alcohol in restaurants and bars by anyone who has a prior conviction for drunken and disorderly conduct or a conviction for assault in which intoxication was asserted as a mitigating factor.  Such an ordinance would not penalize law-abiding black men while completely ignoring ritualistically belligerent white men—and belligerent black or white women, for that matter.  This alternative would still involve a classification (namely, persons convicted of certain offenses), but this would not be a suspect or even a quasi-suspect classification.  The resulting alternative ordinance would be therefore entitled to great deference under rational-basis scrutiny, and would be upheld.

But what if the town instead takes the word “black” out of the original alcohol ordinance, so that it now applies to males, regardless of race?  Well, gender is a quasi-suspect class, so intermediate scrutiny applies.  This means the ordinance does not have to be quite as narrowly crafted as the alternative described above in order to survive scrutiny.  Instead, the basic inquiry will be whether reducing fighting in saloons is an important goal (it likely is) and whether the ordinance actually has a substantial connection to reducing that sort of violence without affecting other protected interests in a disproportionate way.  Assuming most bar fights involve men and not women, there is a substantial relationship between the ordinance and the government interest.  However, the consequence of intentionally discriminating against men in this case might be a ruling of unconstitutionality, especially if the very broad ordinance is held to be a “disproportionate” response to the occasional bar fight.  The result in such a case would likely hinge on whether drinking alcohol in public is a protected liberty interest (doubtful).  In any event, you should be able to see how the type of classification and type of scrutiny involved have a great impact on whether a given law is upheld or not.

» An Added Wrinkle for Laws Affecting Illegal Aliens

So do what the principles above have to do with state and local crackdowns on illegal aliens?  By now you have probably noticed that “illegal alien” is absent from the list of suspect and quasi-suspect classes, and you’re probably thinking, “If illegal alienage is not a suspect classification, what is there to keep my lawmakers from passing laws denying various public services to illegals?”  The answer comes to us from the Supreme Court’s 1982 ruling in a case called Plyler v. Doe.

In Plyler, the Court held that even though illegal immigrants were not entitled to suspect class status, a Texas statute that had the effect of excluding undocumented aliens from its public schools was unconstitutional.  To strike down that law, the Court applied a heightened form of scrutiny rather than the rational-basis test called for by its precedents.  The Court gave a rather remarkable justification for this aberrant reasoning:

[The Texas statute] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.  The stigma of illiteracy will mark them for the rest of their lives.  By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.

Even though the schoolchildren who would be affected by the statute were themselves illegal aliens (not just their parents), the Court characterized them as “innocent victims” who would at some point gain legal status through the process of law.  And because such children would eventually become adult citizens, the liberal justices concluded it was unfair to condone a law that would have the effect of hurting those kids’ chances of succeeding in life.

“It is difficult to understand precisely what the State hopes to achieve,” said Justice Brennan, “by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”  In a concurring opinion, Justice Powell announced that a “legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment.”

And so, having deemed this a situation where the State of Texas was not entitled to deference on its policy choices, the Court proceeded to criticize the effectiveness of the statute, questioning whether it would really yield any important benefits for the state—rather than whether it bore a rational relationship to legitimate state goals.

Here is how the Court shot down a couple of the main arguments made by the state in support of its statute.  One interest asserted by Texas was that of “mitigating the potentially harsh economic effects of sudden shifts in population” that would be brought about through an “influx of illegal immigrants.”  In holding the statute insufficiently related to this objective, the Court said:

There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy.  To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc.

Another justification upended by the Court’s liberal justices was the need to exclude illegal aliens from schools “because of the special burdens they impose on the State’s ability to provide high-quality public education.”  Citing a general insufficiency of statistical and economic evidence, the Court concluded that this goal was not met by the statute either.  “In terms of educational cost and need,” said Brennan, “undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

Another important thing to note from the Plyler case is that the Court was clear in holding that illegal aliens do not have a fundamental right to public education.  Fundamental rights (constitutionally speaking) are things such as the right to procreate, the right to keep and bear arms, and other various rights specifically enumerated in the Bill of Rights.  The key point to remember is that whenever a statute infringes or burdens the exercise of fundamental rights, it is generally going to be subject to strict scrutiny—regardless of whether or not it involves a suspect classification.

» so what sort of illegal alienage laws are constitutional?

Unfortunately, it is difficult to anticipate with a useful degree of confidence whether any given law will be bulletproof.  In light of the concepts described above, it would seem that a state or local lawmaking body ought to steer clear of at least the following sorts of measures, assuming it wants to escape Equal Protection Clause litigation:

• Laws that involve a classification on the basis of membership in a suspect class (e.g., race or national origin).
• Laws that do not involve suspect classes but still impact the “innocent children” of illegal aliens in such a way as to create or perpetuate an “underclass” consisting of less-educated, less-equipped immigrant adults.
• Laws that burden fundamental rights (e.g., an ordinance making it difficult for a woman to meet with an emergency room obstetrician without proof of legal residency might implicate the fundamental right to procreate).

The following, in contrast, are likely to be safer legislative moves:

• Requiring proof of citizenship for anyone seeking employment in high governmental position.
• Cutting funding to a specific public service, across the board.

The lists above are not exclusive, and they certainly should not be considered conclusive.  It is very important that lawmakers are careful to gather persuasive evidence of a real problem that will be squarely addressed by a proposed bit of legislation.  This is because in the worst-case scenario, the court will be looking to see whether the challenged law has been carefully drafted to regulate only those things that have a real relationship to statistically-demonstrable burgeoning crises of some sort.  You might say the lawmaking body should plan for strict scrutiny, although it hopes to receive something less stringent (or never be sued in the first place).

The difficulty for a state or local representative seeking to cut down on illegal aliens’ use of public resources is that there are other legal hurdles to negotiate.  For example, an equally significant barrier to state and local immigration reform is the Supremacy Clause and its accompanying preemption doctrine, which renders local laws invalid to the extent they stray into a field that is regulated solely by Congress.  If a state or municipality passes laws or ordinances that have the effect of stepping on the toes of related federal laws (including treaties with foreign nations), the local laws are said to conflict unconstitutionally with the “supreme Law of the Land.”

In short, the Equal Protection landscape has the benefit of a fairly established legal backdrop, fashioned over the years by courts in addressing many fact situations.  The analysis is complicated, however, by a number of considerations for which there are no clear answers yet, including uncertainty regarding how far the Plyler decision will stretch, as well as questions of congressional preemption.  Perhaps the various lawsuits being threatened against Arizona in response to its illegal alien statute (assuming those suits have not already been brought) will result in the creation of constitutional precedents that will guide other governments facing similar issues.  Until then, lawmakers facing immigration-related controversies should make sure they employ a light touch and a diligent legal team.

Readable even in direct sunlight.

In addition, while this may not be the case for everyone, I find I am able to read more quickly from this screen than from the pages of actual books.  I’m not sure what explains that.  Anyway, you can also shrink or enlarge the text to suit your preference (handy for when you’re reading in bed without glasses or contacts), change the layout from portrait to landscape, and increase or decrease the margin width to shorten the distance your eyes need to travel across any given line of text.  Oh yeah, it also plays mp3s and audio books, if you’re into that.

Literally thousands of classic books have been made available in electronic format through programs like Project Gutenberg, and you can have them all at your fingertips in minutes, gratis.  Thus, you never actually have to buy any books from Amazon to experience decades’ worth of quality reading on a Kindle.  But if you are into modern works of literature, or if you just like browsing the bookstore shelves for something new and interesting to read, you can take advantage of a little trick.  Walk into a Barnes & Noble store and find a few titles that interest you.  Then look them up on Amazon using your web-enabled phone.  Chances are, the book you want is available on Amazon in Kindle format for $9.99, which will generally be a fraction of the cost of the printed copy.

Kindle DX (with optional Cover)

Of course, if you prefer browsing Facebook to reading the works of Mandeville and you want (for some reason) a version of the iPhone that’s too big for your pocket and yet lacks a camera feature, buy Apple’s latest waste of space: the iPad.  You’ll have a great time downloading Justin Bieber and similar idiocy from iTunes in your living room from the iPad’s fancy touch screen, while your neglected MacBook (which can do the same things and more) sits only ten feet away from you.  But if you’re on a dreary flight across the deserts of the American West and want to get lost in the imagination of Jules Verne, check out the Kindle.

Pint-sized treasures from the early 1900s: two of the ten titles comprising the "Mental Efficacy Series"

Whilst poking around in Prescott, Arizona this summer, I found myself in a bookstore.  Among its wares were a number of not-so-gently used books.  As I stumped around the back room from shelf to shelf, my eye was drawn to a pair of wallet-sized books emblazoned with the title, Mental Efficiency Series.  One of these books was Practicality: How to Acquire It.  The other—and the one to which I found myself most drawn as I flipped through its small pages—was titled Timidity: How to Overcome It.

If you’re thinking, “These sound like self-help books,” you’re right.  They are.  But at least in the case of the timidity book, we’re dealing with something much more profound and artistic than the latest bland motivational best-seller you might see paraded about on Oprah, if you watch that stuff.

As its preface indicates, the book is a largely a translation of the ancient works of a Japanese writer suramed Yoritomo-Tashi—who, as it turns out, was one of Japan’s “shogun” rulers, or hereditary military dictators.  I don’t know anything about the Japanese language, but the English version of this fellow’s material is quite compelling—both practically and artistically.

What struck me about this little book was that it quickly pointed out my weaknesses, showing me that many of the mannerisms I have simply attributed to my personality are in fact symptoms of timidity—including the occasional foray into “extreme” behavior and exaggerated gestures of confidence, which Yoritomo rightfully describes as the emotionally-intoxicated substitution of indulgent imaginations and presumption for balanced thought and steady effort.  He also observes that despite engaging in this sort of behavior, “in their hearts, [timid persons] all desire to remain unknown; . . . for they know that they are shamming, and this knowledge gives them the same assurance that a mask gives to those whose features are hidden by it.”  These, of course, are just a tiny selection of the many insights provided in the book.  Its lessons make you feel like a fledgling samurai warrior receiving counsel of ancient vintage and convincing poignancy.

Another reason I like the book so much is that it reminds me of the greatest writer ever to suffer tuberculosis of the bone: Alexander Pope.  Although this book is prose, and Pope’s work consists largely of heroic couplets, there is something pleasantly similar similar about the style of writing and, particularly, the philosophic texture.  I find the language of these lessons very robust, even if Yoritomo’s translator might have had a lot to do with this.

In short, you should seriously consider reading Timidity: How to Overcome It.  So challenging and impressive are its contents that you’ll ultimately find yourself perplexed as to its obscurity.  I certainly was, and that’s why I’m sharing it with you.  Enjoy.

One of the four inquiries articulated by the court was whether “the plaintiff seek[s] to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.”  Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977).

Did you notice the split infinitive?  If you did, were you bothered by it?  If so, is your trepidation worsened by the fact that this solecism was actually penned by a federal appellate judge?  If your answer to any of the foregoing questions was “no,” you should be ashamed of yourself.  But if you keep reading, there is hope for you.

The split infinitive in the above example consists of the words “to affirmatively provide.”  Whenever you see the word “to” immediately followed by an uninflected verb (like “provide”), you’re dealing with a full infinitive—the proper grammatical arrangement.  But when an adverb or adverbial phrase comes between the word “to” and the bare infinitive, you have cause for alarm: you have encountered a split infinitive.

How many split infinitives did Shakespeare use?  Only one, and it was for rhyming purposes.  And you won’t find a single split infinitive in the works of other notable rhymesters like Alexander Pope (my favorite), John Dryden, and Edmund Spenser.  Care to guess how many there are in the King James Bible?  That’s right, none—or I would have stopped reading ere Cain slew Abel.  Yet other authors have slipped up from time to time, including Wordsworth, Eliot, and (to the chagrin of all who share Scottish roots) Robert Burns—though the latter seems to have been tasteful enough to limit his use of the error to lines whose meter could not otherwise be saved.  And apparently, even learned judges have stumbled into using split infinitives.

So how should the court have worded the above language?  Most simply, it could have omitted the word “affirmatively” altogether.  Understandably, the court wanted to distinguish between claims seeking the actual provision of housing by defendants and those merely seeking an injunction against defendants who would interfere with providers of housing.  However, the distinction would have been clear without the word “affirmatively,” because of the contrast provided by the phrases “compel the defendant” and “or merely to restrain the defendant.”

I’m going to tell you the easiest way to discern when the word splitting an infinitive is downright unnecessary: try moving it around to different places in the sentence.  If the adverb or phrase doesn’t seem to fit anywhere without making you sound like a clown, you don’t need it at all.  If the adverb is truly essential to conveying the meaning you intend, you’ll find another place for it in the sentence.  In the example above, the word “affirmatively” doesn’t work anywhere.

You won’t find advice this good in the Bluebook itself: don’t split your infinitives.