Posner, Agrees with Scalia, Disagrees with Garner, that “Choate” is not a word

May 11th, 2011

In November of 2009, Justice Scalia ripped an oral advocate during arguments, telling him that “choate” is not a word:

There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ ”

This debate is somewhat open, with Bryan Garner, Scalia’s co-author noting that it is a word.

Garner says choate is accepted and used “even by those who deprecate its origins.”

With this tie, Judge Posner has joined the fray, in an opinion. He calls the word “choate” a venerable barbarism:

The word“choate,” used as it is in law to mean “in existence” (itsusage outside of law is essentially nonexistent), is abarbarism, albeit a venerable one.

Posner traces the history of this term:

Its earliest knownappearance is in 2 R.S. Donnison Roper & Henry HopleyWhite, A Treatise on the Law of Legacies 358 (3d ed. 1829);it first appeared in a U.S. Supreme Court opinion inUnited States v. City of New Britain, 347 U.S. 81, 84 (1954).“Choate, a back-formation from inchoate, is a misbegottenword, for the prefix in inchoate is intensive and notnegative . . . . The word derives from the Latin verb inchoare‘to hitch with; to begin.’ Yet, because it was misunderstoodas being a negative (meaning ‘incomplete’),someone invented a positive form for it, namely choate(meaning ‘complete’).” Bryan Garner, A Dictionary ofModern Legal Usage 152 (2d ed. 1995); see also BenZimmer, “On Language—Choate,” N.Y. Times, Jan. 3, 2010,p. MM16. The “in” in “inchoate” is no more a negativethan the “in” in “incipient” or “into” or “ingress” or“inflammable.” Imagine thinking that because “inflammable”means “catches fire,” “flammable” must mean fireproof.“Inchoate” means vague, unformed, or undeveloped.If there were a word “choate,” it would meanapproximately the same thing.

Posner notes Garner’s position on “choate,” but will not deign to its usage.

Garner adds that “although the word is etymologicallymisbegotten, it is now fairly well ensconced in thelegal vocabulary . . . [and] is used even by those whodeprecate its origins.” Garner, supra, at 152-53. Not used by us! For the law’s use of “choate” is not only a sign ofignorance but also a source of confusion. The requirement of being in existence does not apply to the lien;no one doubts that the lien exists—if it didn’t the taxpayercouldn’t get to first base. Yet beginning with Cityof New Britain the cases invariably state the questionas whether the lien is “choate.” What must exist is theproperty that the lien is on. The statute could not be clearer.

I still think we need a walk-off here.

H/t How Appealing