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Wednesday, July 10, 2013

This Post is Full of Argle Bargle

At the end of June the legal community was aflutter with Justice Scalia's use of the term "argle bargle" in his Windsor dissent.  Indeed, it was the first time the U.S. Supreme Court had uttered the phrase.

But it was not the first time "argle bargle" has appeared in a judicial opinion.  That distinction goes to Judge Edward Weant of the Court of Special Appeals of Maryland, who used the term in 1979 to begin his decision in a family law case, noting "The basis for this argle-bargle was laid with the filing of a decree of divorce...."  See Antonelli v. Antonelli, 408 A.2d 773 (Md. App. 1979).  According to an obituary for Judge Weant, "A stickler for courtroom procedure, Judge Weant earned a reputation for his strict adherence to decorum and for not suffering unprepared or ill-dressed attorneys."  In other words, courtroom argle bargle.

Judge Weant used the phrase again in 1985 in a personal injury case, starting the opinion again with "This argle-bargle was precipitated by these facts."  See Mech v. Hearst Corp., 496 A.2d 1099 (Md. App. 1985).  Curiously, the Court of Special Appeals of Maryland used the term once again in 1994, without any reference to the prior cases; Judge Weant had retired by then so obviously was not on the panel.  See Oakhampton Ass'n, Inc. v. Reeve, 637 A.2d 879 (Md. App. 1994).  The Maryland appellate court apparently had a monopoly on "argle bargle."  Until Justice Scalia in Windsor.

We now seem to be at the height of argle bargle-ness in judicial opinions, as yet another court has recently used the phrase.  On July 1, the U.S. Court of International Trade stated, "The first determination as to whether this argument has merit, or is merely argle-bargle, is a determination entrusted by Congress to the Department of Commerce, and the Court will refrain from considering it."  See Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory v. United States, 2013 WL 3306410 (C.I.T. 2013).

Two argle bargles in one year!  What's next?  "Mumbo-jumbo?"  (245 hits on Westlaw, most recently just yesterday from the D.C. Circuit, albeit quoting from a prior case).  "Fancy-schmancy?" (3 hits).  "Gobbledygook?" (amazingly, 128 hits!).

I've now realized my greatest regret while clerking for a 5th Circuit Judge:  I never snuck "argle bargle" into a judicial opinion!  Sure, I once began a proposed draft of an opinion involving the Ford Motor Company with "A contract dispute drives this case."  But that's nothing compared to the ingenuity of "argle bargle!" Avast!  Do I have argle-bargle envy?

Posted by Josh Douglas on July 10, 2013 at 03:56 PM | Permalink


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Kerfuffler: 25 hits. None from the U.S. Supreme Court. The most recent was on June 28, 2013, from the Tennessee Supreme Court. (This is exactly what Westlaw envisioned when they gave faculty unlimited Westlaw access, right?!)

Posted by: Josh Douglas | Jul 11, 2013 3:13:45 PM

Ooh, do kerfuffle next.

Posted by: kerfuffler | Jul 11, 2013 3:06:54 PM

Before 2013, "argle-bargle" seems to have meant "dispute" or "fight" or "contentiousness," and that's how Judge Weant used it. See the comments at http://languagelog.ldc.upenn.edu/nll/?p=4930 . Scalia instead used the phrase to mean "mumbo-jumbo," and seems single-handedly to have altered its meaning, if the Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory opinion is any guide.

Posted by: Jon Weinberg | Jul 11, 2013 10:35:48 AM

lawtalkingguy: 2 hits! Amazingly, MD again (its Supreme Court in 1999), and the 7th Circuit in 1989.

anon: Point very well taken. I was being sloppy, but of course it's always the Judge who writes the opinion, and the clerks who offer drafts. I've edited the post accordingly.

Posted by: Josh Douglas | Jul 10, 2013 11:16:03 PM

It's the smallest of things, but it makes me cringe a little when I see "I once began an opinion..." as opposed to something more modest, such as "I once began a proposed draft of an opinion."

Posted by: anon | Jul 10, 2013 10:34:43 PM

Any scholorship on the use of the word "foofaraw" in judicial opinions?

Posted by: lawtalkinguy | Jul 10, 2013 6:37:42 PM

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