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The source of the issue is important, more or less, otherwise I’d be in no particular rush to get this out.
|impossible -- impassable|
Some of you will be familiar with the circumstances:
Professor Hill’s 1-L Civil Procedure class at Ohio Northern University was discussing two United States Supreme Court decisions this past Friday, Bell Atlantic v. Twombly and Ashcroft v. Iqbal (names are great, aren’t they?), which, broadly, together, awkwardly, redefine what a plaintiff must accomplish, and to what degree, in filing his complaint under requirement of Rule 8 of the Federal Rules of Civil Procedure. I think. The issue in the cases—you know, for context’s sake, for those of you not taking Hill’s CivPro course—and here also, though more narrowly, is the Court’s requirement that the facts alleged in a Plaintiff’s complaint, and in order to be capable of surviving a 12(b)(6) motion to dismiss (duh, right?), be not merely possible, but plausible (judgment upon the veracity of the facts comes later). How this surprisingly problematic distinction—possible v. plausible—plays out in the case went, temporarily, out the window, when Professor Hill abruptly wheeled and burst, “Joseph!” (that’s my name) and pointed, “You prize yourself a wordsmith, correct? A master of the English language?” (and you should hear the man, dripping with sarcasm).
Now, see, this is what I’m guessing happened—and which I ruefully foresaw the night before: The reading assignment for class that day was massive. I was slogging through the black morass (or the Serbonian bog) of the exhausting text, and, for some reason, beat down as I was, Justice Steven’s own wordsmithery in Iqbal (e.g. “facial plausibility” and the shattering idea that “general” is a flexible term) was rubbing me the wrong way, and I posted my opprobrium on Facebook. Probably, that was a bad idea, being, as I am, "friends" with Hill.
Anyway, back in class, I denied Hill’s allegation, but he persisted and demanded of me a “devastating” examination of the differences between possible and plausible, and he threw in a couple of alleged synonyms, conceivable and probable. Well, if I’m something less than a wordsmith now as I sit typing in the quiet of my kitchen, then I, upon my proverbial feet in a law school classroom and with the leering Hill staring me down, am smaller still.
Be that as it may, I don’t—or I try not to—let slip away a good lexical challenge.
Possible versus plausible versus (because the class added these for good measure) probable and conceivable is not so complicated or, despite the two versuses (versi?? (no, can’t be – the plural “i” is for Greek-derived “-us” nouns…) – sorry), so convoluted, and, believe it or not, it really doesn’t come down to some complicated etymological investigation. What it comes down to is communication, which, last I checked, and no matter what the study of statute interpretation may indicate, is the whole effing point of Words in the first place.
Speaking of statute interpretation (rather than statutory interpretation, as statutes on the subject of interpretation are another matter entirely), and since we’re dealing with, generally, interpretation, we’ll do here what they do there: start with the face.
On Its Face
Superficially, the comparison is simple, and not even deceptively so, especially as a later court clarifies it so roundly and succinctly (Justices Posner, Wood, and Tinder's In Re. Text Messaging): “Probability runs the gamut from a zero likelihood to a certainty. What is impossible has a zero likelihood of occurring and what is plausible has a moderately high likelihood of occurring.”
Generally, if the face of the thing has got a nice complexion, well, then, that’s enough and we leave it alone. But not here today! And really, seriously, I think the court in Text Messaging was a bit deceived by its own skillful application of some decent, though technically inaccurate, understated cosmetics.
The problem is that—you’re going to hate this—the court, like all the rest of us, is using words; and, well, to adapt a Stevensian construction, a word after all is a general thing. Any word can mean pretty much whatever we want it to, right? I mean, c’mon, how many of us curse from time to time (or all the time)? How flexible are those? Short of getting into the definition (whatever a definition is, really) of “possible” and its etymology, or that of "plausible" or the other two, think for a second whether you, on one hand, consistently distinguish one from the others or, on the other hand, use them entirely interchangeably. While the latter is not impossible (or even entirely incorrect) and the prior not particularly likely (so nerdy!), you, Reader, most likely land right alongside me somewhere along the vast stretch between the extremes. More than just that, I would be willing to bet that Stevens and the other justices are guilty of as much fuzzy-word-use even within the texts of their own opinions, and that’s where we run into trouble: How do you clearly distinguish two words in one context when those same words regularly mean the exact same thing elsewhere?
After the Cold Cream
It’s pretty clear what the honorable authors intended when they required an elevation from “possible” to “plausible,” or required that a plaintiff cross the threshold between them, from the first toward the second, that the facts alleged in the complaint are something more than merely possible. Right? Possible being sort of the broadest, the most all-inclusive, of the four? But where we find that we have to go after a clear distinction between otherwise related—or commonly-understood-to-be—or at least comparable, words, as we indeed do, shouldn’t we assume that the authors intended the most precise definitions possible … er, plausible? Conceivable?? (And does probable even fit there? Hmm. Probably not, really.)
Because here’s what the authors are doing by putting possible and plausible together, sequentially, as they have: they intend that one is hierarchically distinguishable from the other, plausible somehow superior to possible. It’s the nature of that relationship that we’ve got to pin down, assuming the authors have a firm grasp on exactly what they want to say by using these two particular, and not at all improbable words, and that their efforts are rooted in good, sound English.
So on to etymology. (Fear not, I’ll keep it tame—and not at all because you can’t handle it, but because who in their right mind (well, save me) would want to?)
Under Its Skin
By way of introduction, let me say a quick word about dictionaries (apart from admitting that they are some of my very best and oldest friends). Actually, you know what, forget it. Just read this here, if you're so inclined, and let’s move on with the important stuff.
Definitions first (and there’s that word again, definition):
Possible: From Latin “that can be done,” which comes from a simpler word, ever Latin, for “be able,” as in potentem, for, you guessed it, power (as in omnipotent, impotent). So when Oxford says, Possible (in its current, most general usage): “that may or can exist, be done, or happen,” there’s an implicit element, or facility, of power. (Isn’t that cool?)
Plausible: Oxford’s definitions here seem a little improbable at first, because certainly no common modern usage alludes to a connection with “applause” (yeah, as in a bunch of people clapping their hands), whose actual definition, via Latin, of course, is indeed exactly clapping, tied up directly with, believe it or not, “explode.” Seriously. That’s only mildly different from Google’s “define:” feature, which gives “1. (of an argument or statement) Seeming reasonable or probable; 2. (of a person) Skilled at producing persuasive arguments, esp. ones intended to deceive.”
Conceivable: Take off the “able,” and what are you left with? Conceive, right? Which means that the word “conceivable” is somehow connected to what happened that infamous, very first, earliest iteration of your terrestrial existence when you were no more than two joined-up little gametes in your mother's womb. Conceive = “to take in and hold,” which takes a more figurative approach when you pair it with, “that can be conceived, imagined, or thought of; imaginable, supposable.”
Probable: Probable’s actual definition is the most straight-forward and, I think, the most fundamentally different from what its more typical usage is (again, by Google: “likely to be the case or to happen”), like what Posner said in Text Messaging. Interestingly (for me, anyway), “probable” is directly related to “to prove,” and its long-standing definition is “1. Capable of bring proved; demonstrably provable (now rare); 2. Such as to approve or commend itself to the mind; worthy of acceptance or belief….”
Note: A dictionary’s job is to accurately reflect the usage of words from a same-language population. This creates, as you might imagine, an interesting relationship in description and proscription for dictionary-to-language users. When it comes down to it—and, to wit, every dictionary has a panel of experts who determine which words get added to their tome each year—dictionaries are your servants, not your masters. We the people decide by our speech and writing what goes into them and what gets ousted. It’s the Oxford English Dictionary, and my personal nerdy favorite, whose goal it is to collect in one place (if you can call seventeen million volumes one place) all the usages of every word ever spoken or written by those who claim the English language as their own.
So how do we justify these surprisingly divergent definitions—or sources of definitions—with each other and the Justices’ “intent”? I have no idea. I think it comes most likely, and easily, down to this, and which should bring us full circle. As in, yes, right back to where we started. (Isn’t language great? (Feels a bit like interpreting statutes.))
Deconstruction and Semiotic Shift
Sounds imposing, doesn’t it. I'll say it again: Isn’t language great?
These two, well, things, are two of my very favorites as they apply to the general sphere of language and literature. My intent, initially, was to get into this big thing about pulling stuff apart, even more than I already have, by referencing everyone from Eco to Derrida and quoting court cases and whatever else, but that would be even more self-serving than a blog—any blog, but this one probably more than most—is already. So, like with the etymology, we’ll truncate:
I said earlier, and seemingly obtusely, the whole point of words is to communicate. Bearing that in mind, follow me along this rhetorical progression:
· A person has something to say—an idea emerges.
· At this point of the thought’s inception, it is nonverbal; it is merely a newly-made, spatial connection between previously acquired, engendered, or obtained ideas.
· With the intent to communicate that idea, the mind—sometimes subconsciously, sometimes consciously—assigns it a word or words that the person draws from his knowledge and experience—his schema.
· The person speaks or writes the words.
· The words travel across the distance between speaker and listener (or writer to reader).
· The receiver, taking in those words and tapping into his own schema, translates (interprets? know the difference??) those words down to spatial, relativistic ideas for storage and application.
We all do this all the time. We don’t think about it. The point is that, as any two minds are never entirely alike, the idea received from the communication will never be identical to the idea conceived and sent out. Sort of like it’s impossible for a person from one culture to ever fully understand a person from another culture, particularly if there’s a language barrier.
So we need some universal means of accurate interpretation, for efficiently getting ideas from one mind over to the next and with as little margin of error as possible. (In rough application, this is a form of Eco’s metalanguage.) Well, we’ve got one of those. Any guesses? Yep. It’s called a dictionary: a standardized reference of both common and archaic usage of every word ever spoken or written in the English language.
Here’s what it all comes down to. Whatever the heck it was that the Court was intending when it said that possible had to be elevated to plausible doesn’t really matter, because we know that they knew—because not only is it the nature of Supreme Court decisions, but because the writers think they're really that awesome—that their words would be highly scrutinized. And how do we scrutinize words? With a freaking dictionary! If the Court didn’t know we would use dictionaries to ascertain the value and heft of their words, well, then they were on constructive notice that we would. So with them knowing we would use a dictionary (and the very best one available, which, subjectively (and what else matters at this point), is without question the Oxford English Dictionary), and would use it to find the most basic, most rudimentary and essentially applicable, usage of the word, they knew—at least, yes, constructively—and they therefore must have also, equally, so intended, that “plausible” means exactly what the dictionary says it does: “with an appearance of truth or trustworthiness” such as to merit “applause,” which is certainly an elevation of possible, which has merely the power to become such.
Sheesh, almost like they knew what they were talking about….
What this also does is entirely eliminate any possible, at the least, but especially plausible, use of probable (Posner, Wood, and Tinder's short-sight). To be probable, a thing must be provable, and if the thing is provable at the stage of the complaint filing, then what the heck is the freaking point of having a trial at all?
Oh, wait, isn’t that what Stevens tried to do with Iqbal?
Friday, February 3, 2012
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