April 15, 2007

Conclusive = good; Conclusory = bad

According to Fox News, my U.S. senator is skeptical of what Alberto Gonzales has said so far about the U.S. Attorney purges ("Attorney General Gonzales Insists U.S. Attorney Firings Were Not Improper", 4/15/2007):

"He's got a steep hill to climb," said Sen. Arlen Specter, R-Pa., the top Republican on the Senate Judiciary Committee. "He's going to be successful only if he deals with the facts."

Specter said none of Gonzales' public statements so far has convinced him that the department's ouster of eight U.S. attorneys was justified.

"Those statements are very conclusory," he said. [emphasis added, here and throughout]

Though Senator Specter's skepticism is clear, the way he expressed it didn't make any sense to me. I wasn't familiar with the word conclusory, but it seems like a variant of conclusive, and I should have thought that if the Attorney General's statements were conclusive, that would be a good thing, not a bad thing. I wondered whether there might have been an editing error, with something left out or misplaced. However, the Associated Press has the same phrases in a different order ("Gonzales: 'I have nothing to hide'", reprinted in USA Today, 4/15/2007), and the re-ordering didn't help me a bit:

"Those statements are very conclusory," said Specter, the top Republican on the Senate Judiciary Committee. "He's got a steep hill to climb. He's going to be successful only if he deals with the facts."

Neither did looking the word up in the Oxford English Dictionary, which calls conclusory "rare" and defines it as "Relating or tending to a conclusion; conclusive". This is what I had already guessed, and exactly what puzzled me.

The Encarta dictionary, which I turned to next since it's the most recent one available on line, has

1. convincing, but not definitive: convincing, but not to the extent that it cannot be contradicted
2. Same as conclusive

This is not a big help -- it hardly seems likely that Senator Specter meant "Those statements are very convincing, but not to the extent that they cannot be contradicted".

The American Heritage Dictionary has

1. Conclusive. 2. Law Convincing, but not so much so that contradiction is impossible; not justified or supported by all the facts: “Perfunctory and conclusory findings of the magistrate . . . did not comport with requirements of Federal Rules of Civil Procedure” (National Law Journal).

This is something of a step forward -- but I still don't think that Specter meant "Those statements are very not justified or supported by all the facts", exactly.

Merriam-Webster's Unabridged Dictionary (3rd edition, 1961) has

relating to, based on, or consisting of a conclusion (sense 8) We agree plaintiff's petition is conclusory and does not adequately state the factual basis for its assertion — Lavergne v. Western Company of North America

This is better -- the idea emerges that Gonzales' statements give conclusions but "[do] not adequately state the factual basis for [their] assertion". The entry in Merriam-Webster's Dictionary of Law (1996) encourages this view:

consisting of or relating to a conclusion or assertion for which no supporting evidence is offered
Example: conclusory allegations

A quick web search turns up plenty of examples of this meaning, though almost always in a legal context:

These claims are conclusory and universally unsupported by any specific allegations.
they are conclusory allegations based on conjecture and speculation
Clay's complaint sets out only conclusory allegations with no facts alleged in support
Lett's claim (2) was dismissed by the magistrate because it was vague and conclusory.
conclusory allegations unsupported by factual data are insufficient ...
Appellant's premise is too conclusory to support a finding
the complaint is convoluted, rambling, conclusory, and voluminous.
Also conclusory, and therefore not warranting a hearing, was Defendant's claim that ...

My favorite ("Let's Sue", Amherst Times, 4/9/2007:

I think it's a shame that a reproduction of a historical commercial area in what is now weeds and gravel is the subject of such vehement, practically knee-jerk opposition. No rational discussion needed. Just conclusory bitching and some orders to show cause.

(The phrase "conclusory bitching" has real promise as a description for a certain style of unconsidered linguistic snootery.) The same search also turned up some evidence that this meaning of conclusory is a relatively recent one, or at least has spread in recent decades. According to an AP wire service story "A Proper Word in Court", published in the New York Times, 8/13/1987:

The word ''conclusory'' is not in Webster's New World Dictionary, but the Wyoming Supreme Court has ruled it fit for courtroom use.

''After painstaking deliberation, we have decided that we like the word 'conclusory,' and we are distressed by its omission from the English language,'' Judge Walter Urbigkit said in a footnote to an opinion issued Tuesday in a medical malpractice lawsuit.

''We now proclaim that henceforth 'conclusory' is appropriately used in the opinions of this court,'' the judge wrote. ''Furthermore, its usage is welcomed in briefs submitted for this court's review. Webster's, take heed!''

Some Webster's had, in fact, already taken heed. Webster's New International Dictionary of the English Language, 2d edition, recognizes the word conclusory as an adjective meaning conclusive but notes that its use is rare.

While some people feel that the legal world is already too cumbersome because of the unwieldy language in court documents, Judge Urbigkit says the word conclusory is needed because of his court's desire to be concise.

''It means the message is not justified by supported facts, which it assumes but doesn't state,'' Judge Urbigkit said.

Judge Urbigkit said the word, and its Wyoming definition, was proposed by his law clerk, whom he described as a linguist of sorts.

I'm afraid, however, that Judge Urbigkit and his linguist law clerk don't deserve credit for this useful innovation. There is an example of essentially the same usage in the New York Times archive almost 60 years earlier, on June 8, 1930, in a story with the headline "FORECLOSURE FRAUD PLEA STRICKEN OUT", and the subhead "Appellate Division Finds That Leon Bleecker's Answer Was Too Conclusory", which began:

A defense of a conspiracy to defraud in a foreclosure action has been ruled out by a decision of the Appellate Division in the case of the Monica Realty Corporation again Leon Bleecker and others involving a second mortgage on premises on which Bleecker holds a third mortgage.

and ended like this:

This semantic development seems to have started from a legal habit of complaining that a claim or argument is merely or only or excessively or (especially) too conclusory, in the sense of giving conclusions without providing adequate supporting evidence. Over time, the word conclusory alone, without "too" or any other modifier, came to mean "asserting conclusions without evidence".

Before 1900, the OED's description of the word as "rare" and meaning ""Relating or tending to a conclusion" seems valid. For example, there are only four hits in the ProQuest American Periodicals Series Online 1740-1900. The earliest one is in "Ancient Sea-Margins", The North American Review, July 1849, Vol. LXIX, No. CXLIV, p. 256:

Who wrote the Vestiges of the Natural History of Creation? The question has excited a good deal of curiosity, and has not yet received any answer except from vague and uncertain rumor. The author certainly intended to remain incognito, and seems even to have taken considerable precaution that he might not be unmasked. In his "note conclusory," he says that his book was "composed in solitude, and almost without the cognizance of a single human being;" and that "for reasons which need not be specified, the author's name is retained in its original obscurity, and, in all probability, will never be generally known."

Another is a letter responding to the same article, and the other two are equally un-Specter-like:

A.M. Fairbairn, "Some Thoughts on American Universities", Outlook, Aug. 17, 1895.

This latter brings the universities and the secondary schools into something like organic relations. They mutually depend on each other; the universities are the normal goal of the schools, the schools the normal soruces of supply for the universities; and so the education has some chance of being continuous, preparatory in the one case, conclusory in the other.

A Literary Study of the Book of Job, The Methodist Review, Nov. 1900.

It is not within our province to consider the much-mooted questions respecting the authenticity of these prose passages introductory and conclusory to the story.

In contrast, a search of the Google News Archive for {conclusory} turns up 42,600 hits, nearly all examples of the "conclusions without evidence" meaning, and among them some evidence that Senator Specter is a regular user ( "Transcript: Pennsylvania Senator Arlen Spector on 'FNS'", 3/19/2007):

WALLACE: This week, you said that New York Democratic Senator Chuck Schumer -- that his role leading the investigation into the U.S. attorneys at the same time that he's running the Democratic Senate Campaign Committee --is a conflict of interest. Has he crossed a line here?
SPECTER: I think he has. And I confronted Senator Schumer on it eyeball-to-eyeball on Thursday in the Judiciary Committee meeting.
But let's look at what the facts are: Senator Schumer is leading the inquiry, and the day after we have testimony about Senator Domenici, he puts his name up on the Democratic Senatorial Campaign Committee, criticizing --or really making the argument-- that he ought not to be re-elected.
Now, I think that the inquiry by the Judiciary Committee ought to have at least a modicum of objectivity, and if Mr. Schumer is doing a job to defeat Senator Domenici, which he is now — that's his job as chairman of the Democratic Senate Campaign Committee — that he puts it up on their Web site the very next day, and then he has made very conclusory and judgmental statements all along.
And I challenged him on that a week ago in the Judiciary Committee, and he calls it a purge, and he's taken a very political stance. Now, he's got a right to do that. He's a politician and I'm a politician.
But I don't think he can do both things at the same time without having a conflict of interest, but that's up for him to decide.

[Roger Shuy writes:

Bryan A. Gardner's Dictionary of Modern Legal Usage, Oxford U Press, 1995, (pp. 191-192) says that conclusive means authoritative and decisive and that most general English dictionaries fail to list conclusory as a main entry and that the few that do misdefine it:

"Yet the word is now quite common in American legal writing--and is increasingly in British legal writing-- and it does not coincide in meaning with conclusive...Conclusory = expressing a factual inference without expressing the fundamental facts on which the inference is based. The word often describes evidence that is not specific enough to be competent to prove what it addresses. For example, the statement "She is an illegal alien" is conclusory, whereas "She told me that she is an illegal alien" is not."

First appeared in 1920, Ringler v. Jetter, 201 N.Y.S. 525, 525 (App.Div. 1923).

Those who are bothered about using it sometimes use "conclusory" or "conclusional" or "conclusionary."

Steve Treuer writes:

I did a Westlaw search for conclusory and the earliest case I could find (in the US) was a 1908 New York decision, which is attached. The case seems to use the word in the modern sense of unsupported by facts. I'm surprised that is the earliest use I could find, and I suspect that if I kept looking in other sources like text books there would be earlier uses.

Conclusory is a common legal term, and I did not find Spector's use of the word unusual. (I'm a lawyer.) It comes up a lot in decisions about whether pleadings are adequate. Some jurisdictions require complaints to be pleaded with allegations of facts that show that the plaintiff has a valid claim or cause of action. Those jurisdictions have fact pleading rules and do not allow merely conclusory allegations. Other jurisdictions, like the federal courts, have notice pleading rules and allow conclusory allegations. The idea is that the conclusory allegations put the defendant on notice of the nature of the claim and the defendant can find out the facts through discovery. In fact pleading jursidictions by contrast, the defendant can object to a complaint by demurrer if it does not plead facts that constitute a claim or cause of action. Those facts are sometimes called "ultimate facts" to distinguish them from "evidentiary facts." Even in fact pleading jurisdictions, the plaintiff does not have to plead the evidence that he would use to prove the claim.

The case that he sent is Supreme Court, Appellate Term, New York, In re CANAKOS, June 30, 1908, and contains this passage:

Thereafter he moved, even a second time, for his discharge under section 2286 of the Code of Civil Procedure, upon his own uncorroborated affidavit, uncorroborated even by a conclusory affidavit of his attorney, that he is unable to pay the amount of his fine, and was discharged ...

David Seidman writes:

To this lawyer, Senator Specter's use of "conclusory" was unremarkable -- lawyers use it in that sense all the time. For example, in ruling on a motion to dismiss for failure to state a claim, the court is required to treat all factual allegations in the complaint as true. But it is generally said that a court is free to disregard mere "conclusory allegations." The US Supreme Court will soon be ruling in a case raising issues about conclusory allegations, Bell Atlantic v. Twombly -- the Court heard oral argument in the case in late November, so the opinion should be out very soon.)

If you search for "conclusory" in Findlaw's database of US Supreme Court opinions, you find one hit from 1943. It is in footnote 40 of SCHNEIDERMAN v. UNITED STATES, 320 U.S. 118 (1943).

The footnote in question begins:

Since the district court did not specify upon what evidence its conclusory findings rested, it is well to mention the remaining documents published before 1927 which were introduced into evidence and excerpts from which were read into the record, but upon which the Government does not specifically rely with respect to the issue of force and violence.

I'm not convinced that this is a clear example of the (apparently new) meaning -- "conclusory findings" here might simply mean "the findings reached in the court's conclusion", though it's true that the lack of specified evidence is also mentioned.

So for the new meaning, we have examples from New York state starting in 1908, reaching the newspapers by 1930, with a possible SCOTUS mention in 1943, and a Wyoming judge still finding it necessary to justify the term in 1987. It's clear that lawyers -- including Senator Specter -- generally find it "unremarkable" today, but this seems to be the result of a process that has taken place in U.S. legal discourse over the past century.

And this process has left some English-speaking non-lawyers behind, including (until now) me. ]

[ Jonathan Mitchell writes:

A fine article by a Texan lawyer, Bryan Garner, at page 235 of ‘The State of The Language: 1990s Edition’, ed. Ricks and Michaels, Faber and Faber 1990, gives this word as the prime example of “legal neologisms that… remain nonwords …”, with copious references. I recommend it! The word has also recently emerged in English (but not, unfortunately, Scottish) legal usage; the primary UK caselaw database, Justis, shows nine examples of its use of which only two are pre-1994 (these by the same judge, Lord Wilberforce, in 1972 and 1981).

I wonder if that "Bryan Garner" could be the same as the "Bryan Gardner" who was cited by Roger Shuy as the author of a "Dictionary of Modern Legal Usage"? Apparently yes -- a quick check at amazon.com verifies that the dictionary in question was written by Bryan Garner, without a 'd'. ]

Posted by Mark Liberman at April 15, 2007 07:38 PM