The Last Word—James Bond Favors a Cool Drink: Ambiguous or Vague?

Consider these statements:

1. Migrating can be hard for aliens.
2. James Bond favors a cool drink.

Each statement creates interpretative uncertainty. Both are unclear but for different reasons. The first is vague; the second is ambiguous. The two introduce quite different concepts. Both can distract from persuasion and understanding.

Vague means something is uncertain, indefinite, or of unclear character or meaning. When we read a vague word, we’re challenged to understand what the writer or speaker intended. When you first read the sentence about migrating aliens, you likely didn’t have a clear mental picture of what was meant. Does migrating refer to outer space beings seasonally relocating like birds, individuals from one country attempting to move to a different one, or something else? Regardless, is what is hard a legal, physical, emotional, or another issue?

Ambiguity is not a synonym for vagueness. When something is ambiguous, it means that it may be interpreted in more than one way. The root of ambiguity, ambi, is Latin for “both.” Thus someone who can use both hands with equal dexterity is ambidextrous. So, does James Bond like a drink that is trendy or one that is chilled? Both are legitimate interpretations of cool in the sentence. And, if the latter, the statement also is vague. After all, how cold is cool?

Unfortunately, vagueness is ubiquitous in the law. Practitioners and law students are constantly exposed to language that is general, abstract, and vague. When discerning a trend in case rulings, side-by-side comparisons, balancing tests, and supplementary doctrines can be employed. When drafting a document, awareness of vague words and terms can trigger the author to help the reader with clues, most typically done via context. Perhaps Mr. Bond prefers the taste of his drink when cool but not cold.

Similarly, disambiguation can be achieved through context. The proper packaging of a reference with more than one meaning can eliminate all but the intended concept. This leads to the focus within the law to adopt and use plain English. As Supreme Court Justice Clarence Thomas once said, the “beauty is not to write a five-cent idea in a ten-dollar sentence” but rather “to put a ten-dollar idea in a five-cent sentence.” The Atlantic (Feb. 23, 2013).

Of course, the challenges inherent in legal writing are not limited to the law. Our federal government is another source of muddled communication. Like legal writing, government publications are often stodgy and full of dry legalisms and jargon. As a counter, the Plain Writing Act of 2010, Pub. L. No. 111-274, 124 Stat. 2861, requires federal agencies to write clear government communication that the public can understand and use.

H.W. Fowler summed up recommendations for making word choices in his influential book The King’s English (1906). He encouraged writers to be simpler and more direct in their style by preferring:

• The familiar word to the far-fetched
• The concrete word to the abstraction
• The single word to the circumlocution
• The short word to the long
• The Saxon word to the Romance word

Id. at 1. Anglo-Saxon words have Germanic roots and are generally shorter and more concrete. Latinate (Romance) words have French or Latin origins and are abstract, scholarly, and often multi-syllabic. Anglo-Saxon words make writing more understandable and easier to read, quickening the pace of the reader. Latinate words may require more focus and time, as they are contemplative. Use the former to deliver a story and the latter to analyze after the story is told.

Recognition of the benefit of clear expression in the law is not new. Courts have been acknowledging the need for decades. Indeed, I’m reminded of a remark by Joe Kimble, Professor Emeritus at Western Michigan University Cooley Law School and author of over 30 books, including the seminal Lifting the Fog of Legalese: Essays on Plain Language (2005). Prof. Kimble proclaimed that “no reform would more fundamentally improve our profession and the work we do than learning to express ourselves in plain language,” Benchmark Alumni Magazine 3 (Winter 2015), see also https://www.cooley.edu/faculty/joseph-kimble. To that, I would add not just learning, but also doing.

Bottom line: Anticipate when a word, term, or expression may be vague or ambiguous, and then craft the use to ensure clarity and fluency by choosing another word, selecting another placement, or providing sufficient context. And we should all be cool with that.