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Lex maniac

Investigating changes in American English vocabulary over the last 40 years

Tag Archives: lawsuits

clawback

(1980’s | bureaucratese? legalese? financese? | “recoup,” “recover”)

No longer the sole property of sportswriters, this noun-verb complex has invaded the financial pages and legal journals in force. When I was young, you clawed your way back into a contest through determination and effort, not quitting until the game was on the line and you had a chance to win. It didn’t have to be a single game; it could happen over course of a season, as in a baseball team clawing its way back into the pennant race. It might be used in the context of an individual sport like tennis or golf, but I think it more often went with team sports. In the business world, you might claw your way to the top, but you don’t claw back your way to the top — though you might claw your way back to the top. There’s something ruthless about clawing when people do it; it requires unreasoning vigor, like a jungle cat, blindly fighting its way forward as long as it can move.

In the late seventies, the U.S. began imposing treble (i.e., threefold) damages on defendants who lost certain kinds of civil suits. The U.K. responded by passing a law of their own that gave a British person or corporation the right to recover the portion of the total damages that was not actually compensatory (in other words, the part that was multiplied on after actual damages were awarded). In both the British and American press, this was widely referred to as a “clawback provision.” The expression was much more common in the British, Canadian, and Australian press for at least a decade thereafter, and it is indubitably a Briticism.

My impression was that the expression refers mainly to something governments do, as in the Bernie Madoff case, but a corporation can do it, too; take Wells Fargo’s repossession of stock from disgraced executives in the wake of a banking scandal. I suppose that a business partner could claw back money that another partner had misused, but for the most part it seems to be something an institution does. Clawbacks normally occur when assets have been stolen or used illegitimately; when you hear the word, you can be pretty sure that there was some funny business that has been found out, and a governing body, private or public, is doing something about it. (That isn’t always true; for example, when the British government was privatizing public industries in the eighties, they decreed that a certain number of shares had to be available to British investors. In some cases, that meant “clawing back” shares bought by foreigners to make sure enough shares were available.) The government generally needs some kind of judicial ruling, but a corporation needs no more than the approval of the directors.

In truth, the new expression here is “clawback” (n.) since “claw back” (v.) has been a permissible construction for a long time. (As we saw above, “clawback” also serves as an adjective. I hope I am cold in my grave before “clawbackly” becomes standard English.) But its present sense seems to have arisen around the same time, and I wouldn’t want to state with certainty that one preceded the other, though I would guess the verb came first. It has never left legal and political contexts, or spread outward from them. Law and justice must have their own language.

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junk science

(1980’s | legalese | “quackery”)

This is an expression with an agenda. We began to hear it regularly a little after 1990; a Washington Post editorial referred to “what some are beginning to call ‘junk science'” in March 1996. Google Books and LexisNexis cough up several instances from the eighties, and even this diamond in the rough from 1903: “But that conceited laugh of junk science, how laughable it is after all” (Peter Burrowes, “What is truth?” in Revolutionary Essays in Socialist Faith and Fancy, Comrade Publishing Co.). Whatever Burrowes may have meant, both the meaning and connotation of this expression were pretty clear when it came into its own at the other end of the century. The term was most often used by lawyers to complain about so-called expert witnesses purveying unsubstantiated theories about harms to plaintiffs and driving up the cost of judgments against well-meaning, God-fearing corporations. The phrase generally reared its head in discussions of tort law, that is, lawsuits filed to obtain compensation for wrongs not covered by criminal law. And it was generally used to assail dubious medical or technical testimony that swayed gullible juries (or judges).

It isn’t always so clear what “good” science is, even in our everyday Newtonian world; practicing scientists with good credentials may disagree vigorously on the interpretation of a piece of evidence even in simple cases. Attacks on junk science often rely on the unstated assumption that proper science is easily defined and recognized, not subject to controversy among scientists. That is true most of the time, but not all the time, and it does foreclose the possibility of finding value in the new or unconventional. The Supreme Court has ruled that scientific evidence should be peer-reviewed but stopped short of setting absolute limits on what can or can’t be presented in the courtroom.

No doubt many verdicts have been influenced by doubtful expert testimony. Peter Huber cited and documented several with relish in “Galileo’s Revenge: Junk Science in the Courtroom” (Basic Books, 1991); the subtitle probably played a role in popularizing the phrase. His plaintiff-bashing set the tone; it took several years before “junk science” came to be applied regularly to any doubtful theories propounded by big business. In its early days, junk science always had a bleeding heart, causing courts to fall for sob stories bolstered by expert witnesses who were far too sure of themselves. Crazed environmentalists, quack psychiatrists, doctors on the take — they were the ones who relied on junk science to con the scientifically illiterate. Nowadays, the phrase is comfortably used in a much wider variety of contexts, but it still seems to be favored by the right wing, though it is no longer solely their property. (I shudder when I ponder future semantic possibilities given the recent rise of “junk” as a slang term for “genitals.”)

The funny thing is that you would expect the forward-looking lefties to brandish science against the backward righties, but they got in first on this term, which fit neatly into their strategy of attacking people seeking redress for injuries allegedly caused by corporate negligence. The web site Junk Science, opened in 1996, is unabashedly right-wing and contemptuous of the scientific establishment, debunking climate change, solar power, and other usual suspects, particularly government participation in scientific research. (Ironic, because the original definition of “junk science” as propounded by lawyers depends on conformity with scientific consensus.) The phrase allows right-wingers to dismiss a favorite left-wingers’ trump card and beat them at their own game. References to science make you sound serious and learned, and who’s going to make you explain why the object of your scorn violates this or that scientific principle? It has become one more way to say, “Shut up. You’re wrong.” But then, it never really was anything else.

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