Those who consult MSCD will be familiar with the notion that it’s unnecessary and distracting to use initial capitals (“nitcaps,” to those in the know) when referring to the parts of a contracts. In other words, in cross-references the words section, exhibit, and schedule (among others) should be all lowercase.
It follows that one should also use all lowercase letters when referring to parts of a statute:
“Bankruptcy Code” means Title [read title] 11 of the United States Code, 11 U.S.C $ 101 et. seq., as amended from time to time.
Frio LP shall effect a divisive merger (the “Merger”), in form and substance reasonably acceptable to SXE, in accordance with Chapter [read chapter] 10 of the Texas Business Organizations Code …
You might find it harder to break the initial-capitals habit when it comes to referring to parts of a statute. After all, with contract cross-references, you’re referring to private documents, whereas the entire world refers to statutes, and you’re used to seeing initial capitals. For example, here’s something from a recent item in the New York Times:
“We are all concerned about Title IX issues,” said Mount Holyoke President Lynn Pasquerella in a telephone interview.
But no matter how prevalent the initial-capitals habit, it’s contrary to recommended usage.
First, consider the general guidance provided by The Chicago Manual of Style 8.178, which says, “The words chapter, part, appendix, table, figure, and the like are lowercased.”
And more specifically, U.S. Government Printing Office Style Manual 3.9 (here) says, “A common noun used with a date, number, or letter, merely to denote time or sequence, or for the purpose of reference, record, or temporary convenience, does not form a proper name and is therefore not capitalized,” and it offers among its examples “chapter III,” “section 3,” and “title IV.”
That is all.
Where does Nitcappers Anonymous meet?
At The King’s Head, the first Monday of every month. You’re buying!
I think the issue is more subtle than you’re letting on. It’s rather like deciding when to capitalize the designation of seasons: we do when we’re using them as names, and don’t when we’re describing, as it were, their function.
When referring to a subset of something else it is, as you say, proper to use lower case. Within a document, “section 9” carries with it the implied “of this agreement.” When talking about a another document or a statute, if you’re saying what the other thing is, the latter has a title and you’re only referring to the section as a function of the larger thing: subchapter S of the Internal Revenue Code. But “Title IX” standing by itself, if you haven’t said “of the Civil Rights Act of 1964” or some such, is actually used as a title, and therefore, I think, deserves initial caps.
Situations like this always remind me of Lewis Carroll’s taxonomy of things: there’s the thing, there’s the name of the thing, there’s what the thing is called, and there’s what the name of the thing is called. I leave it to others to assign section references to the appropriate category.
I take your point about “Title IX” standing by itself. But you wouldn’t see that in a contract.
You’d see it in a contract if a school athletic director’s employment agreement gave her responsibility for “all Title IX compliance issues.”
The U.S. Supreme Court uses “Equal Protection Clause” without each time specifying “of the Fourteenth Amendment,” and the court says “Fourteenth Amendment” without each time specifying “of the Constitution.”
But the Constitution’s not a statute, and Supreme Court decisions aren’t contracts, and maybe in a constitution, some sections become so personified that they acquire proper names with nitcaps.
What would you advise if the athletic director’s contract gave her responsibility for “all [ ]ourteenth [ ]mendment issues?
Thanks to you and Vance, I’m now attuned to the notion that parts effectively become titles when considered in isolation.
But in the athletic director’s contract, I’d probably say “under the fourteenth of the …”
The issue for me is readability. Although it may not always be grammatically correct, initial caps for sections, chapters, parts etc makes perusing contracts a much easier task for me and for my clients. Whenever I have to review a contract that another lawyer drafted, I am always happy when they’ve adhered to the generally accepted convention of initial caps for such references.
I suspect that this is a case of people liking what they’re used to.
That’s unusual. I’ve heard the opposite from all of my colleagues, especially when speed reading is necessary to locate a clause in a meeting, etc. Your statement just verifies that “one size does not fit all.” I do think, however, that most practitioners will continue to use initial caps because of readability issues. After all, in a lot of cases, it is not grammatically incorrect to initial cap because it is being used as a noun.
It what way, “unusual”? Do you mean that I’m in the minority? If I were looking to win a popularity contest, I would have given up long ago. Instead, I’m looking to do what makes sense, and I cater to those who feel the same way.
Or do you mean that my recommendation doesn’t make sense? I can’t think of why one would want to emphasize cross-references. What makes them so special? Why not emphasize, I don’t know, the word “liabilities” instead? Or the word “indemnify”? Or something else?
It’s perhaps relevant that every style guide that addresses the subject recommends using all lowercase. Contract prose isn’t some precious snowflake that merits special treatment when it comes to cross-references.
Finally, my approach is the opposite of your “one size does not fit all.” For every concept expressed in a contract, there’s the best way of expressing it, then all the other ways. It makes my life easier to use only the best ways, and life would be simpler for everyone if we all used only the best ways.
Well said, Mr. Crabby. I thought of two more anti-nitcap points, probably both low blows:
1/ Excessive nitcapping comes across as Teutonic. English is not German, which capitalizes every noun. Why make legalese even more alien to common English than it has to be? (Please pass the Liberty Cabbage.)
2/ Nitcapping also smacks of semi-literacy: “Dear Editor: I found a Mistake in your Article about the Murder….”
I explained above that, for me and my colleagues, it’s an issue of readability. If you’re using section, chapter, etc. that many times in ONE sentence then, yes, I agree that chances are that you are semi-literate and can’t think of a suitable substitute; I do not have that problem. I do not think that initial caps makes a contract “alien” to a reader; I think it makes the contract more “common/colloquial.”
You seem to have an intolerance for other people’s perspectives. I did not insult you. I spoke to my experience after writing/reviewing thousands of contracts. If you can’t take criticism or an opposite point of view, you shouldn’t host a blog. I am entitled to my opinion and I (and my colleagues) happen to think I am right. Nothing that you write is going to change that.
It’s not a matter of intolerance of other people’s perspectives. If you examine my blog posts you’ll find that thanks to my readers, I’ve eaten crow on many occasions. And yes, you didn’t insult me, but I didn’t insult you either, beyond challenging your ideas.
It’s my self-appointed task to spend my days in the marketplace of ideas, testing my ideas and the ideas of others. If I think that an idea doesn’t make the grade, I’ll says so, and I’ll explain why. And sometimes I state myself plainly, without any sugar-coating.
It’s routine for people to tell me that they don’t agree with me. That’s less important to me that establishing in my own mind what makes sense.
It might be that you’re new to this blog. If that’s the case, I hope that any sense of affront wears off and that you’ll consider commenting in the future.
In terms of insult, I think I’m referring to statements like these: “Instead, I’m looking to do what makes sense, and I cater to those who feel the same way.” The underlying assumption is that, if people don’t agree with you, they don’t make sense or have sense. You can believe that you make sense and that you are right, but others may not agree. I think it is incorrect to assert that others don’t “make sense” because they have a different point of view. After all, what we (as lawyers) are supposed to do is to assert our different points of view. That being said, I’ve been insulted before. I don’t think that it will now deter me from reading your blog or posting my opinion. It is refreshing to find a blog that caters to transactional matters. And, sometimes I actually agree with you.
As an editor of legal translations who deal with large swaths of text every day, I can tell you that capitalization of clauses and sections and the like is not helpful but it rather wears you down as it mixes with the defined terms. What IS helpful is the number that stands out in the text like section 3. So, no capitalization of all the references is more of a burden in real life.
In a lighter vein, I guess Ms/Mr T has applied the `expectation of relevance’/expressio unius est exclusio alterius to “Instead, I’m looking to do what makes sense, and I cater to those who feel the same way.”! More seriously, I suppose the anti-nitcap rule also applies to “petitioner”, “respondent”, “claimant” etc. in pleadings. But, “the (L/l)earned (J/j)udge” always foxes me – would really appreciate your views on this [To revert to the lighter vein, “Learned” seems more appropriate oftentimes – one is then secure in the feeling that it can never been construed as an adjective!]