Legal Commentary

The Horace/Google Principle and ?to Effectuate? vs. ?to Effect?

By Eugene Volokh

A commenter faults me for saying ?to effectuate the legislature?s likely intent,? and suggests that ?to effect the legislature?s likely intent? would ?surely? have been better. This led me to a bit of research that I thought might be worth reporting, just as an example of a particular approach to usage that I tend to like.

To begin with, I never even thought of saying ?to effect the legislature?s likely intent?; that struck me as wrong. But looking both terms up in the dictionary, I saw that effectuate was essentially defined as ?effect? (as a verb, of course).

But while the dictionary is a good measure of actual usage ? and itself helps guide actual usage ? these days one has more direct measures, and measures that are more closely tied to specific phrases. And a Google search reveals 21,500 ostensible hits for ?effectuate the legislature?s intent? versus 32 for ?effect the legislature?s intent?. The ?effectuate? version is idiomatic, and the ?effect? version is unidiomatic. And since I, with Horace, like to follow ?the will of custom, in whose power is the decision and right and standard of language,? ?effectuate? it is. All else being equal, I?d prefer to use the shorter and less fancy-sounding option, but the Google search results suggest that all else is not equal here. (Oddly, the ratio is less skewed when I search through Westlaw?s Allcases database, but it?s still more than 10:1 in favor of ?to effectuate the legislature?s intent,? except in Kansas; of the 51 court decisions that say ?to effect the legislature?s intent? since 2000, 37 were in Kansas courts.) 

Of course, sometimes fresh figures of speech are more vivid and more effective than customary ones. But I think this is so only for more substantive inventions than ?to effect the legislature?s intent,? inventions that I would want people to notice and focus on. In the original post, I didn?t want people to focus on the words ?to [effectuate/effect] the legislature?s intent?; I just wanted people to get my substantive message, and despite the commenter?s reaction, I suspect that the more common ?to effectuate the legislature?s intent? conveys that message better than ?to effect the legislature?s intent.?

UPDATE: The original commenter follows up with this:

Are you really prepared, Mr Volokh, to use two ugly, surplus syllables just because Google has persuaded you that the great unwashed do? (Or lawyers, insofar as they are distinct.) If so, may I commend to you a favourite Australian usage? They say ?if that should eventuate, ...? when I would say ?if so, ....?.

I?m happy to go with a slightly less common usage when it strikes me as simpler or more elegant ? if it?s still clear and sufficiently common not to be jarring. But Google reports that ?to effect the legislature?s intention? is nearly 1000 times rarer than ?to effectuate the legislature?s intention.? And recall that the verb ?to effect? by itself is usually used in a slightly different sense (?to bring about,? as in ?to effect change,? rather than ?to give effect to?). 

Using a phrase that is so unidiomatic is very likely to be jarring to readers. And whatever the readers? washing habits might be, I want to communicate effectively to them. Distracting them with unidiomatic phrases is rarely good for effective communication. (Not ?never,? see my ?Of course? paragraph above, but ?rarely.?)

As to the Australian example, I suspect that a search of Australian sites would reveal that ?if that should happen? or ?if that should come about? is pretty common. But if, contrary to my suspicions, such phrases yielded only 32 Google hits, compared to 21,500 for ?if that should eventuate? then I would definitely not use the unidiomatic 32-hit version. When in Australia, do as the Australians do, at least when it comes to language.

Full post as published by The Volokh Conspiracy on July 09, 2010 (boomark / email).