What is the 'it'?

Not unlike with the use of “whom” (when sometimes they should just have used “who”) – a topic that I write about in the book – the judicial tendency towards longer, and/or more fancier-sounding, words can lead a judge on occasion to write “nor” when what they really should have written was “or”.

Sometimes I might let this go as immaterial. It depends on how much else is going on in the judgment I am working on. There may be more important things to tackle; and if I have to wave something past it might as well be a miscast “nor”. A lot of people would never even notice, and I can’t imagine it ever causing a sentence to be misread.

Nevertheless, it also isn’t hard to get right.

Here are two basic kinds of sentence construction:

“It was either this or this.”

“It was neither this nor this.”

I know, it seems too easy, doesn’t it? Vowel goes with vowel; consonant goes with consonant; Bob’s your uncle.

There is a slightly different sentence construction, though, that can sometimes cause a judge to come unstuck. Somewhat confusingly, it also mixes up the vowel/consonant dichotomy.

The proper construction of this type of sentence is:

“It was not this or this.”

Judges, however, have a tendency to write “nor” rather than “or” here:

“It was not this nor this.”

This is really not the right place for a “nor”. The thing that “it was not” is “this or this”; “this nor this” is not a “thing”.

If you find that your judge has written that kind of sentence in that way, you might be able to change their “nor” to an “or”. That would be correct. You might also be able to change the “not” to a “neither”, depending on the particular sentence and its context.

But there is a way that you can let them have their “nor”, with just a slight rewriting of the sentence:

“It was not this; nor was it this.”

That gives the “nor” some work to do. It also sounds a bit fancy – a bit like something a judge could write.