I was curious what Eben and others had to say about this construction. Unlike a mere typo, this construction comes out in people's papers because it's common in colloquial speech. But more than that, I would say that it has now achieved a status of sounding correct to native American English ears. And I would even go so far as to say that it is close to having achieved a "correct" status in written English prose, if it is not there already. Eben clearly disagrees with this proposition. My questions are:

1) Is the construction "wrong" in formal writing?

2) If it is "wrong," is it close (say, a decade or two away) from being right, as a result of natural evolutionary tendencies in language?

3) As lawyers, or even as professionals in general, are we well-advised to write conservatively, with traditional rules of grammar ("up with which I will not put"), or will it be considered sloppy (and make us seem illiterate, as Eben says) to push some of these rules toward what seems to be their natural dissolution, in our own writing?

-- MichaelBerkovits - 19 May 2008

I cannot speak for Eben, but personally think that he is generally right. Even if the construction is not "wrong" in colloquial English, it is distracting for the more conservative readers. Put it this way - you could write with informal solecisms and put off half your readers, or you could write with elegant style and "conservative" grammatical constructions and not put off any readers.

Writing almost always lags behind oral linguistic innovations. Natural evolutionary tendencies in language are sometimes slow and other times rapid, as well as sometimes random and other times deliberate. I wonder whether the "everyone" and "their" construction is a result of the gender faux pas in using "him" as the default singular neuter pronoun. We have the neuter subject pronoun "one" but no corresponding neuter direct object pronoun. That asymmetry may explain the recent outburst of confusing our grammatical numbers to keep our genders neutral.

It seemed evident to me that Eben's critical generalizations of a writer's literacy in response to a grammatical error were intentionally exaggerated. The harsher the criticism, the more scrutiny in the revision and future drafts. That said, I think it would be sloppy because any writer must keep his audience in mind when composing a written piece. If your reader is a judge, write for a judge; if a reader of McSweeney? 's, then strap on your literary flare.

-- JesseCreed - 19 May 2008

As you pointed out, Jesse, a major reason for this sort of number-disagreement in educated writing is the reticence to use the word "he" or "him" as the neuter (in order to avoid sexism), coupled with the terrible awkwardness of "he or she" or "him or her." You also correctly point out that some readers, perhaps many, are put off and "distracted" by number-disagreement.

However, it's interesting to note that one accepted solution to the "male pronoun as the neuter" is to use the female pronoun instead. For example, "When a judge writes an opinion, she..." But this solution, which is both anti-sexist and acceptable to "conservative" readers, actually makes for distracting reading for many people. When I'm reading along and come across sentences like those, it's momentarily unsettling - because it disrupts the default mental state of assuming that anyone mentioned in prose who is not obviously female is male. The fact that this is the default mental state for me is unfortunate, and is indicative of our sexist cultural past (and, hopefully to a lesser extent, present). But I know it's like that for many other people too; otherwise the following children's riddle wouldn't work:

A father and his son get into a terrible car accident. They are taken to separate rooms of the hospital. The doctor in charge of the boy looks at him and says, "I can't operate. He's my son." How is this possible? Answer: The doctor is the boy's mother.

My point is that there are problems with all of the possibilities for the neuter. The male neuter is sexist; using the female neuter or switching between the male and female neuter can be confusing and distracting; saying "he or she" is awkward; and using "they" or "their" causes number-disagreement.

I happen to alternate between the male and female neuter in my own writing, because I understand that number-disagreement is unacceptable to many readers, including most of the important ones (e.g., judges, lawyers, professors). But I'm trying to suggest not that we should have number-disagreement in our writing (because that's distracting), but rather that the pronoun "they" is steadily gaining a secondary grammatical identity in which its grammatical number is one, in constructions like those we've been discussing. Writing lags behind oral linguistic innovation, as you say, but in this case the oral innovation happened long ago and my impression is that it is close to becoming acceptable in writing, as well. This is what I was soliciting agreement or disagreement with (to appropriately end this post with a sentence ending in a preposition).

-- MichaelBerkovits - 19 May 2008

I hope your prediction turns out to be correct, Mike, and "their" and "they" take on second meanings as singular gender-neutral pronouns. While I know it is incorrect to use "their" or "they" as singular pronouns in formal writing (and I do try to catch myself, though often unsuccessfully) in casual writing and speech I use them that way all the time. It definitely sounds awkward to me to use "one," "someone" or "a person" and then get stuck with the "he or she." I also tend to use "she" as a neuter or flip back and forth between "he" and "she," but I agree that it reads a bit unnaturally as well.

As a sidenote, in trying to write this post my shaky grasp of grammatical rules has become painfully clear. It's interesting (and disconcerting) that I've learned the grammatical rules of the other languages I've studied, but always just played it by ear in English.

-- ClaireOSullivan - 19 May 2008

I think the general question of avoiding gender bias in grammar is based on mistaken premises. In the first place, it's only because English is so weakly gendered that we even consider identifying grammatical gender with human gender. French feminists worry about the question of justice for women just as urgently as we do, but they don't identify the gender of French nouns, or the resulting grammar, as an injustice.

Granting, however, that English speakers do think there's a social justice element to this dispute, it need never result in bad grammar. Michael's specimen sentence would better have been written "Why do people ignore their passions?" That would have been clearer because the real point is that people in general do, not that a sequence of people in particular do. When the sentence concerns the particular, even the particular indefinite, it's appropriate to use singular pronouns, both subjective and possessive. When the sentence concerns the general, it's good style (for clarity as well as grammar) to use plural nouns and pronouns, subject and possessive.

People are amazingly committed to their non-prescriptive grammar, I must say. I don't know where the idea originates that your standard of expression is the average of what people are sloppy enough to try to get away with. If you are hearing people make agreement errors, that's because you are hearing uneducated people. We are not part of the "write like they talk" vernacular culture: we write as educated specialists in the use of words are trained to do. Your grammar should be impeccable, not merely capable of escaping conviction by a random sample of nonprofessional speakers, as your ethics should not be measured by whether you've violated the criminal law. Your writing needs to be better than correct; it needs to be forceful, supple, and attractive. If you settle for less you are shortchanging your clients and your causes.

So far as the use of "everyone ... she" constructions is concerned, I decided years ago to use them in regular alternation with "one ... he" constructions. You listened to me use them in class for fourteen weeks, and almost all of you barely noticed they were there. You heard me say sometimes "the judge ... he" and sometimes "the judge ... she" and everyone just took it as normal. I think that's something we all ought to train ourselves to do, because that's not about grammatical gender: it's about how our use of metaphors and hypotheticals creates a narrative of what's possible in our world. We should use our speech patterns to imagine everyone doing every sort of job, and all people marrying whomever they want. By doing so we prevent the usual forms of our expression from making assumptions against which we want otherwise to contend.

-- EbenMoglen - 20 May 2008

I believe Cixous used the pronoun "illes" (a combination of ils and elles) in her writing to deal with this very problem. Of course, she was a theorist and not a lawyer, and so had considerably more leeway with grammar rules than we do.

-- ClaireOSullivan - 20 May 2008

I think for me this is definitely an extension of what for me is an awkward decision between using he or she as a general pronoun (although I've made the mistake on a paper for this class when he was clearly appropriate). However, I wonder if there is going to be a transition within the upcoming years of the acceptable use of the pronouns and what the acceptable use will be. I think Eben makes a very persuasive point about how precise we need to be given our future profession, but how long after a transition occurs will the change be found in legal language too?

-- AndrewWolstan - 20 May 2008

Michael:
A father and his daughter get into a terrible car accident. They are taken to separate rooms of the hospital. The doctor in charge of the girl looks at her and says, "I can't operate. She's my daughter." Still surprised?

If the gender of the pronoun "my" followed the gender of the words "she-daughter"/"he-son" surrounding it, then this example cannot help us know whether people assume a default male gender in general. That means that if we experiment with the terms of this story -- sometimes substituting "daughter" for "son", and at other times replacing "physician" with "secretary," "ballet dancer," "teacher," or "nurse" -- the "daughter" substitution should be more predictive of reader confusion about the ambiguously gendered character's gendered. In which case, the outrage feminists feel when readers "default" the physician to male is really just an artifact of the author's choice to make the ambiguously-gendered "my" refer unambiguously to a physician.

-- AndrewGradman - 20 May 2008

I think Andrew W and Eben have it though... If the goal is effective communication, sticking with formal rules is the way to go. Grammar has clearly not made the transition to 'their' as a singular neuter; the fact that it bothered Eben enough to comment on it (and the fact that it still sounds wrong to me), means that there are others who will be bothered by it.

As Claire and Eben argued, we are lawyers, not theorists. Our job is to communicate, not to press the envelope of grammar. I steer away from 'their', because I feel like it never contributes to your goal... at best, people don't notice it, at worst it looks like you don't know how to write. Alternating she or he, on the other hand, can earn you points with a substantial subset of readers, and at worst sounds discordant instead of wrong.

(I typically use the alternating approach, but I will stick with 'he' when I am writing for someone who seems like a staunch traditionalist.)

-- TheodoreSmith - 20 May 2008