Some time ago, I banned my law clerks and the pro se staff lawyers, who I also supervise, from using the word “problematic” when writing opinions. Gabi (who is now our chief pro se staff attorney, a wonderful writer and a very funny young woman) gave me an essay on the subject that gently chided me for the fox paw.  That essay is reprinted below.

By the way, the persons referred to in the essay as Laura and Ryan are law clerks or members of the pro se staff. The person referred to as “Kris” is my judicial assistant. The “Marnie Jensen” named in the fourth footnote (****) was then the chief pro se staff attorney who has now gone on to become a partner in AM 100 firm.  Before she came to work for the court, Marnie was one of the lawyers in the case to which the footnote related.

Even though I personally found it both plainly perturbing and petulantly perverse, here is Gabi’s paen to “problematic”:

Problematic: an Essay

Problematic. Few words have such rich and multivalent uses. Surprisingly, there are still individuals in society who object to its use and take for granted the magnificent beauty it brings to language and, in turn, humanity.

A. Sometimes, “Problematic” is an Adjective

When used as a predicate adjective, “problematic” is the perfect subject complement. Take the following example: Laura’s propensity to walk through the office shoeless is problematic given the physiological qualities of the human foot (i.e., over 200 sweat glands*). Of course, Gabi has also been known to roam shoeless, however, this is far less problematical because her feet are always perfectly manicured.**

“Problematic” is also a very useful adjective when a writer must convey the severity of a situation and simply stating “there is a problem” does not pack enough force. For example, imagine an active shooter entered chambers while Kris was away and it was up to Ryan to alert the judge. Given Ryan’s dispassionate and serene nature, he would slowly pick up the phone, patiently wait for the judge to answer, and then state the following: “Well [long pause], there is an active shooter in the building [even longer pause]. Guess we better take cover.” Is Ryan’s response to the situation simply a “problem” or is it “problematic”? I think we all know the answer.

 B. Sometimes, “Problematic” is a Noun

Please do not assume that “problematic” only functions as an adjective, as it is also a very useful noun. Watch me use “problematic” as a noun in the following sentence: Always the skeptical problematic, Judge Kopf has decided to begin his next opinion with, “if the people want to go to Hell, I will help them. It’s my job.”

Indeed, “problematic” is a brilliant noun. The word’s true beauty is that it can be artfully molded into other nouns that are just as grand, such as “prolegomena” and “problemology,” or if you prefer something a little plainer, “problem.”

 C. Judges Love Problematics!

The Justices of the United States Supreme Court have written “problematic” into at least 193 published opinions. In one year alone, the word was referenced numerous times.*** Indeed, the Court has affirmatively determined that all of the following things are problematic: “‘in for a dime, in for a dollar’ hypothetical[s],” Waddington, 129 S.Ct. at 830; “anti-drunk-driving policies,” Virginia v. Harris, 130 S.Ct. at 11; “deep intrusion[s],” F.C.C. v. Fox, 129 S.Ct. at 1820; “chances for success,” Ricci, 129 S.Ct. at 2701; “beliefs,” Uttecht v. Brown, 551 U.S. 1, 18 (2007); “remed[ies],” Hinck v. U.S., 550 U.S. 501, 506 (2007); “redressability,” Massachusetts v. E.P.A., 549 U.S. 497, 545 (2007); “portions,” Ayotte v. Planned Parenthood of Northern England, 546 U.S. 320, 329 (2006); “answer[s],” Republic of Austria v. Altmann, 541 U.S. 677, 715 (2004); “donations,” McConnell v. Federal Election Com’n, 540 U.S. 93, 266 (2004); and, of course, “nude erotic dancing,” City of Erie v. Pap’s A.M., 529 U.S. 277, 295 (2000).

The highly revered federal judges of Nebraska have also been known to employ “problematic” in their opinions. Notably, in Carson P. ex rel Foreman v. Heineman, Judge Kopf adopted a 200-page Report and Recommendation—which, of course, means he adopted every-last word of that Report and Recommendation—that stated, “[s]tatus offenses are acts that are problematic for the juvenile and family, but not illegal if performed by an adult.” 240 F.R.D. 456, 471 (D. Neb. 2007).****

Two other examples of Judge Kopf’s personal fervor for “problematic” can be found in Ziola v. Central Neb. Rehabilitation Services, 2007 WL 3046350 at *1 (D. Neb. Oct. 17, 2007) and Riddle v. Wachovia Securities, LLC, 2006 WL 13101 at *2 (D. Neb. Jan. 12, 2006). Judges Bataillon, Smith Camp, Urbom, Strom, Thalken, and Gossett share Judge Kopf’s love of the word. See e.g., Petersen v. Astrue, 2009 WL 995570 at *3 (D. Neb. Apr. 14, 2009); U.S. v. Kofoed, 2009 WL 2781967 at *2 (D. Neb. Aug. 26, 2009); Rosen v. Astrue, 2008 WL 731605 at *5 (D. Neb. Mar. 17, 2008); Pennfield Oil Co. v. American Feed Industry Ins. Co. Risk Retention Group, Inc., 2007 WL 1290138 at *9 (D. Neb. Mar. 12, 2007); U.S. v. Sanders, 2007 WL 1490483 at *3 (D. Neb. May 21, 2007); and Kirkpatrick v. King, 2005 WL 2180097 at *8 (D. Neb. Sept. 7, 2005).

D. My Dreams

As you can see, “problematic” is a legitimate and useful word. Personally, I have a dream that one day people from every strata of economic life will be able to say “problematic” without shame; a dream that no teacher will ever say to her student “problematic is problematic, so use a different word,” a dream that no judge will ever say to his law clerk “let’s make it a rule that no one will use that word in this office.” Call me a helpless romantic, but I also dream that one day I will wake up next to the man I love, iron his clothes, prepare his breakfast, pack his lunch, and, as he walks out the door, say to him, “See you later, my love. I hope you have an un-problematic day.”

E. Hastily-Written Conclusion

So, let’s remember baby Jesus in his manger, the blessed saints, Vietnam veterans, and all martyrs who served humanity so that we could be free to convert nouns like “problem” into predicate adjectives like “problematic.” Finally, in matters of love, life, and court-opinion writing, Lyle Lovett said it best when he wrote, “It’s a lot easier to write about things that are problematic. Who wants to hear how happy you are?”


*Per foot.

**Do you know what happens when you type “problematical” into WordPerfect?  Absolutely nothing.  The smart people at Corel know that “problematical” is a word, and a good word at that! [RGK edit: Do you know what happens when you type “problematical” into Word? I don’t because only morons use Word which, of course, explains why the AO is pushing that piece of junk.]

***See Waddington v. Sarausad, 129 S.Ct. 823 (2009); Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009); Wyeth v. Levine, 129 S.Ct. 1187 (2009); Harbison v. Bell, 129 S.Ct. 1481 (2009); F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800 (2009); District Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009); Ricci v. DeStefano, 129 S.Ct. 2658 (2009); and Virginia v. Harris, 130 S.Ct. 10 (2009).

****Fact: Marnie Jensen finds Judge Piester’s Report and Recommendation problematic.


11 responses

  1. Your office/court sounds like a more and more fun place to work each time you discuss it.

    But I disagree with n.2; WordPerfect is the most improperly named program of all time. I prefer Word (if forced to choose).

  2. You and I may disagree on some things but we sure agree on Word. It is a piece of junk. WordPerfect is a much more flexible program and when it does something strange, the reveal codes function makes it relatively easy to fix.
    About 20 years ago, the Department of Defense and other federal agencies bought a “super” program that had word processing, data bases, e-mail, spread sheets and other stuff for about $75 a copy. It was really a piece of junk. It took them forever to get rid of it.
    It is interesting that the 5th Circuit is civilized and uses WordPerfect while the DOJ and most other federal agencies use Word.
    Maybe judges are smarter than other government employees and officials.

  3. With regard both to WordPerfect and vocabulary, as Forest Gump once said, “Problematic is as problematic does.”

    Or is that a problem?

    Eric Hines

  4. Beautiful. In my initial reading haste, I read para 2 of part C, “The highly reversed federal judges of Nebraska have also been known to employ “problematic” opinions. ” 🙂

  5. Tom,

    There is absolutely no good reason for the courts to change to Word. If you do the research, most writers or editors who are experienced with both conclude that WordPerfect is far superior. Frankly, I don’t care if a bunch of children want to use Word because they grew up sucking their thumbs with it. I just don’t want adults to be forced to cave into them. The sunk costs, that are not recoverable, make any such forced effort unbelievably costly. What is even more troubling is that there are people at the AO and otherwise doing sneaky things to make the migration seem inevitable. That really pisses me off.

    As I told someone else today, they will have to jerk WordPerfect from my cold dead hands. On this, I am willing to fight.

    All the best.


  6. WordPerfect rocks. It lets you do what you want to do. Word is constantly looking over my shoulder and turning things into lists, bullet points and other junk that I don’t want. If WordPerfect does something weird, I can hit “Reveal Codes” and kill off the offending font, indentation or what have you. Plus you can mark citations in WordPerfect and it generates a table of authorities. If Microsoft were (not “was” — note the subjective mood) smart about this, they’d buy out Corel and adopt the features of WordPerfect that keep it from being the “nanny state” that is Word.

  7. Precisely. I still do most of my serious writing in WordPerfect. For recipients who insist on a Word document, it politely allows me to convert it into a Word document, while Word pretends that it can’t understand a WordPerfect document.

  8. Gabi – Excellent research and legal analysis. You should convert this into a law review article. It may be the first-ever amusing and also instructive work of legal scholarship. Elaine Mittleman

%d bloggers like this: