Calling Brian Garner: “Conclusory”–what the hell does the word mean?

Brian Garner, the world-class lexicographer, should take note of the following.  After all, he edits Black’s Law Dictionary.

This Article is a short story about the word “conclusory.” The word is effusive in legal discourse, yet it has been largely elusive to the editors and drafters of dictionaries. Few dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. This Article explores this definitional perplexity with original research and data on the historical usage of the word and its lexicographical coverage. As the word “conclusory” has taken center stage in the procedural plays of civil litigation with the help of the 2009 U.S. Supreme Court decision in Ashcroft v. Iqbal, the demand for meaning attached to the word is increasingly prevailing on the legal profession.
Available dictionary definitions at best give us a general idea of what “conclusory” means but can hardly resolve the perplexity of how the word is used to filter the acceptable from the unacceptable pleadings. The “conclusory” standard in Iqbal might turn out to be nothing more than an “I know it when I see it” standard. There is a sense in Iqbal that conclusory statements are like procedural pornography so profane and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards.
Part I documents the usage of the word “conclusory” and the upward trend in its use throughout the past century. Part II summarizes the use of the word “conclusory” in the pleadings standards established in Twombly and Iqbal. Part III then surveys the literature on Iqbal. Part IV concludes that the dictionary definitions are of little utility in understanding the meaning of “conclusory” in Iqbal and do not provide clear guidance to litigants or the courts in applying Iqbal’s pleadings standards in that regard. Such a conclusion should not be surprising, I contend, in light of the inherent limitations in dictionaries themselves. Part V presents two primary conclusions: (1) the Iqbal “conclusory” prong has a low degree of predictability in its application and is largely subject to judicial interpretation of pleadings on a highly individualized, judge-specific, and case-by-case basis; and (2) one of the only methods available to operate within this high degree of uncertainty is to base one’s understanding of the Iqbal test and other standards that require substance for the word “conclusory” on the historical usages of the word within past court decisions. Appendix E provides a reference list of U.S. Supreme Court cases that have used the term “conclusory” with minor annotation to indicate some context of the usage.
At the end, the reader will still not know what exactly that the word “conclusory” means. But therein lies the point of the exercise upon which this Article embarks. It is a seat on the observation deck to the evolutionary spread of a word into our lexicon, a revelation about the fallibility of dictionaries, a recognition of the sometimes indeterminate use of language, a caution that a word’s meaning is seldom revealed in isolation, a lesson on the importance of contextual analysis, a debate about the utility of flexibility in standards, and a charge in the face of unavoidable confusion to make the best use of skill and analogy to operate within the constraints of a new judicially-demanded ante for entering the game of civil litigation.

As the above-quoted abstract demonstrates, Donald J. Kochan, Professor of Law at Chapman University School of Law in Orange, California , has written a fascinating and very useful article about a single word, “conclusory.” Donald J. Kochan, WHILE EFFUSIVE, “CONCLUSORY” IS STILL QUITE ELUSIVE:THE STORY OF A WORD,IQBAL, AND A PERPLEXING LEXICAL INQUIRY OF SUPREME IMPORTANCE, 73 University of Pittsburgh Law Review, No. 2, 2011 (2013).

I urge federal civil practitioners and members of the Academy who are interested in federal civil procedure to read Professor Kochan’s especially thoughtful and incredibly detailed analysis.  In particular, I found Appendix E, Supreme Court Opinions with Occurrence of the Words “Conclusory” or “Nonconclusory”: Citations with Information Regarding Each Occurrence  Including Justice Authoring Opinion, Type of Opinion, and Surrounding Words Indicating Context of Usage (1942–2011), to be particularly useful and fascinating.

Professor Kochan’s article proves, once again, that dedicated law professors can really help judges and practitioners when they put their minds to it.

RGK

3 responses

  1. Judge Jerry Smith on the 5th Circuit refuses to use it (believe it not to be a word), instead going with “conclusive.” He also spells the drug “marihuana,” for consistency with the federal statute.

  2. As someone who has written an article on one word, I love this kind of thing. That said, (and I don’t think Professor Kochan would disagree) the evolution of case law and the shaping of precedent will have much more to say about the meaning of the word “conclusory” than dictionaries or etymological exercises.

    I do wonder if Judge Souter tended to lead the way in the writing of his opinions, or if his clerks did. A graduate fresh out of law school would likely drop the word “conclusory” as a pejorative without much thought. I think that every single one of my professors 1L year counseled the whole class to avoid “conclusory” language in our exam answers. The article hints at this (page 234), but the use of the word in the classroom is not discussed. I wish the article would have noted how the labor might have been split and the law clerk’s potential influence on the word selection.

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