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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Double negative, Justice Goodwyn?

The Supreme Court of Virginia released one published opinion this morning. White v. Llewellyn is an interesting read if you find fraudulent conveyances of real estate interesting — I do, because it one of the few areas of the law where a prima facie case gives rise to a de jure presumption benefiting the plaintiff and, thus, the burden of production and persuasion shifts to the defendant (in most cases, the burden of persuasion always remains with the plaintiff).  I will not delve into the details, leaving that to the more capable prose of Steve Emmert.  However, I did want to take exception with one point in the opinion, authored by Justice Goodwyn for a unanimous court, and that is the final sentence which reads, “Thus, for the reasons stated, we will reverse the judgment of the circuit court and remand this case for further proceedings not inconsistent with this opinion.”  . . . not inconsistent?  English, unlike most Romance and Oriental languages, considers a double negative to reverse, rather than emphasize, the speaker’s/writer’s meaning.

I was a bit surprised to see Justice Goodwyn employ this phrasing when “consistent with this opinion” would seem to convey the same meaning.  I was even more surprised when a text search of Supreme Court of Virginia opinions revealed that “not inconsistent with this opinion” (or sometimes “not inconsistent with the views expressed” or a similar phrase) has been used 179 times by the Court.  While “consistent with this opinion” or similar wording has been used 743 times, that’s still a 19.5% usage of the double negative.

While I have the inclination to delve deeper into whether there is some significance to when the Court uses the straight positive as opposed to the “double negative” positive, alas I have not the time. Instead, dear reader, I shall leave you with this old chestnut: At an academic conference of linguists, a speaker was remarking on the unusual nature of the English double negative rendering a positive when Romance Languages consistently treat a double negative as emphatic.  The speaker noted further that there was no example of any language in which a double positive was treated as a negative.  At which point a voice from the back of the auditorium called “Yeah, Sure!”

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