Quash

Quash (pronounced kwosh)

(1) To put down or suppress completely; quell; subdue; used usually in a military or paramilitary context.

(2) To make void, annul, or set aside (a law, indictment, decision etc); to reject (an indictment, writ, etc) as invalid.

(3) To crush or dash to pieces (obsolete and thought possibly an imperfect echoic of squash).

(4) In the civil procedure rules of US courts (as motion to quash), a specific request that asks the court to render the decision of a previous lower court ruling invalid.  It is similar to a motion to dismiss, except it asks the court to nullify a previous ruling rather than the current filing.

Circa 1275: From the Middle English quaschen, quasshen, cwessen, & quassen (to smash, break, overcome, suppress) from the Old French quasser, in part from the Latin quassāre (to shake), present active infinitive of quassō, frequentative of quatere (to shake) and in part from the Late Latin cassāre (to annul), a derivative of the Latin cassus (empty, void) under the influence of the Alatin cassō (I annul), from the Latin quatiō (I shake).  Ultimate root was the primitive Indo-European kweht- (to shake), the source also of the words pasta, paste, pastiche, pastry; cognate with Spanish quejar (to complain).  Similar to some degree are suppress, squash, repress, crush, quell, invalidate, annul, revoke, reverse, veto, void, undo, vacate, squelch, repeal, overrule, rescind, scrunch, annihilate and subdue.  Regarding quash and squash, the verb quash is now used to describe the crushing of something in a nonphysical sense whereas squash is applied when an object is physically crushed but both were for hundreds of years used in both senses, quash losing its physical sense only in the twentieth century.  Urban Dictionary also lists a number of non-standard meanings.  Quash & quashed are verbs, quasher is a noun, quashing is a noun & verb and quashable is an adjective; the most common noun plural is quashings.

In the matter of Cardinal Pell

Cardinal George Pell (1941-2023): On appeal, the prosecution not having proved guilt beyond reasonable doubt, the conviction was quashed.

Quash means to nullify, void or declare invalid and is a procedure used in both criminal and civil cases when irregularities or procedural defects are found.  In a unanimous (7-0) judgment (Pell v The Queen [2020] HCA 12)) quashing Cardinal Pell’s conviction (Pell v The Queen [2019] VSCA 186), the High Court set aside the verdict and substituted an acquittal; in a legal sense it is now as if the original verdict never happened.  What the court did was declare existing law and provide what are not exactly parameters but are more than guidelines.  If nothing else, it’s likely the judgment will cause trial judges more precisely to instruct juries about reasonable doubt:

(1) The accused on trial in a serious criminal matter is presumed to be innocent.

(2) The accused may but is not obliged to offer a defense; it is incumbent upon the prosecution (almost always the state) to prove, beyond reasonable doubt, the guilt of the accused.

There’s nothing controversial about those positions, they’ve well known and have for centuries been accepted orthodoxies for the administration of criminal law in common law jurisdictions.  What the Pell judgment did was draw attention to other orthodoxies not as widely known:

(3) A jury is presumed to be comprised of reasonable people who impartially will assess the evidence (contested facts) presented; matters of contested facts are subjective and for the jury.

(4) It is the responsibility of the judge accurately and lucidly to instruct the jury on such matters of law which may be relevant to their consideration of matters of fact; matters of law are objective and for the judge.

Reasonable people on juries are thus required to decide if there is a reasonable doubt the prosecution’s case has proven guilt.  Reasonable doubt went back a long way but the phrase “reasonable person” was defined by English courts in negligence cases, an attempt to provide an example of the “the average man” or “the man in the street”.  Descriptions by judges vary but usually mean something like a “…reasonably intelligent and impartial person unversed in legal esoteric” (Jones v US, DC Court of Appeals), sketched rather more poetically by an English judge as “the man on the Clapham omnibus” (“a bloke on the Hornsby train” in Australian parlance).

(5) In exercising their subjective judgment to determine if the prosecution has proven their case beyond reasonable doubt, the jury is required to decide this on the objective basis of reasonable doubt detailed in the judge’s direction or summing up.

(6) If a court of appeal found a jury, acting reasonably, on the basis of the evidence presented, should have found reasonable doubt of guilt, the judge(s) can order the conviction quashed and verdicts of acquittal entered instead.

Not only verdicts can be quashed.  If within their jurisdiction, a judge can quash a warrant or order.

Omnibus

Omnibus (pronounced om-nuh-buhs)

(1) A now less commonly used term for a bus (a public mass-transit vehicle).

(2) A volume of reprinted works of a single author or of works related in interest or theme, by extension later applied to a television or radio programme consisting of two or more programmes earlier broadcast.

(3) Something pertaining to, including, or dealing with numerous objects or items at once, the best known example being the omnibus bills submitted to a legislature (a number of bills combined as one).

(4) As a pre-nominal, of, dealing with, or providing for many different things or cases. 

(5) In philately, a stamp issue, usually commemorative, that appears simultaneously in several countries as a common issue.

(6) In public transportation, a service which stops at every station, as opposed to a point-to-point express.

(7) In literary use as a humorous device, a jack of all trades (a person with knowledge in multiple fields, usually with some hint of lacking competence in at least some).

(8) In restaurants, both (1) a waiter’s assistant (obsolete, replaced by busboy or (now more commonly) busser or commis waiter) & (2) later the small, wheeled cart used by a waiter's assistant.

1829: A adoption in English to describe a "long-bodied, horse-drawn, four-wheeled public vehicle with seats for passengers", from the French voiture omnibus (carriage for all, common (conveyance)), from the Latin omnibus (for all), dative plural of omnis (all), ablative of omnia, from the primitive Indo-European hep-ni- (working), from hep- (to work; to possess) or hop- (to work; to take).  Bus was thus a convenient shortening to describe the (then horse drawn) forms of public transport and subsequent uses by analogy with transporting (even weightless) stuff is derived from this.  The present participle is omnibusing or omnibussing and the past participle omnibused or omnibussed; the noun plural is either omnibuses or (for the public transportation) omnibusses; the attractive omnibi unfortunately wholly non-standard.

Omnibus entered English to describe a “horse-drawn, long-bodied, four-wheeled public vehicle with seats for passengers” in 1829 as a borrowing from the French where it had been in use for a decade, introduced in Paris in the winter of 1819-1820 by a Monsieur Jacques Lafitte (1761-1833) who used the term voiture omnibus”, combining the French word for "carriage" with the Latin phrase meaning "for all".  An Englishman named George Shillibeer (1797-1866) was the coach-builder to whom Lafitte awarded the contract to build his omnibuses and after returning to London, he built similar models, introducing them in 1929 to immediate success.  In the manner of the Brougham and Hansom cabs, they were known first as Shillibeers (and use of his name to describe the vehicles did persist until late in the nineteenth century) but omnibus was soon preferred and that for more than a century remained the official designation (and indeed still appears in some legislation and ordinances) but predictably, the public preferred the more phonetically economical "bus" and that endures to this day.  Encouraged by his success, Mr Shillibeer remained entrepreneurial, introducing in 1858 the “funeral omnibus” which combined in the one vehicle (in separate compartments), accommodation for both coffin (casket) and mourners.  Thus a combination of bus and hearse, the advertising suggested that for smaller funeral parties it would be cheaper than hiring multiple vehicles (with their attendant staff and horses).  Perhaps for cultural reasons it seems not to have been a success, but hearses with similar configuration are used in some countries and, in the West, some are built with seating for up to four passengers, apparently intended for the undertaker’s staff.

Lindsay Lohan display advertising on Italian omnibus, Milan.

The use of omnibus to describe a junior staff member in a restaurant who was assigned essentially “all the tasks the waiters preferred not to do” dates from 1880 and came soon to be applied to the wheeled carts such helpers used to more around crockery, cutlery, flatware and such.  This simultaneous use may have proved confusing or else three syllables was just too much because by 1913 the carts were being called busses and their operators busboys (although that seems not to have survived our more gender-sensitive age and “commis waiter” seems now preferred (usually as “commis”).  Omnibus was the name of a long-running live TV series (1952-1961) hosted on US television by expatriate English journalist Alistair Cooke (1908-2004).  The use of omnibus to describe a legislative bill which addresses a number of vaguely related (or even wholly dissimilar) matters in the one document technically dates from 1842 although, as an adjective referring to legislation "designed to cover many different cases, embracing numerous distinct objects", it was in use in the US as early as 1835 and is most famously associated with the act (made of five separate bills) passed in 1850 to secure the Compromise of 1850 which (temporarily) defused a political confrontation between slave and free states over the status of territories acquired in the Mexican–American War.

The Man on the Clapham Omnibus

1932 Lancia Autoalveare, a triple-decker omnibus which served the Rome-Tvoli route.  The upper deck was apparently, at least on some occasions, designated as "non-smoking" but history doesn't record whether the bus company enjoyed any more success than the government of Italy in enforcing such edicts.

The phrase “man on the Clapham omnibus” was one adopted (apparently from early in the twentieth century) by judges of English courts to illustrate the “reasonable person”.  The word “reasonable” had been in English since circa 1300 as a borrowing from the Old French raisonable and the Latin rationabilis (from ratio) and in this context was an attempt by example encapsulate “the average man” or “the man in the street”, judges varying in their descriptions of this construct but meaning usually something like “a reasonably intelligent and impartial person unversed in legal esoteric” (Jones v US, DC Court of Appeals).  When the phrase was in 1903 used by Lord Justice Sir Richard Collins MR, the Clapham omnibus would have been horse drawn and he credited the expression to one he’d heard mentioned by a previous Lord of Appeal in Ordinary, Lord Bowen (1835-1894).

The judicial choice of a bus passenger was based on the idea that such a person could be thought to be representative of an upstanding, respectable and thoroughly ordinary member of society, one for whom views of things were not infected by legal technicalities.  The choice of Clapham was significant only that it was an unexceptional London suburb something like many of dozens that might be said to have been “typical” of the city.  The man on the Clapham omnibus was thus in the tradition of legal fictions, a hypothetical person used for illustrative purposes, the first known instance of which in Western legal tradition was the creation by Roman jurists of the figure of bonus pater familias (good family father) a chap said to be not only respectable but unrelentingly and reliably average in every aspect of life.  In the Canadian province of Quebec, the very similar standard of the bon père de famille is derived from the Roman bonus pater familias.  The reasonable man (now of course a reasonable person) is a necessity in many aspects of law because so many standards upon which cases are decided depend on the word reasonable.  Were the consequences of an action reasonably foreseeable?  Would a reasonable person believe a certain thing told to them?  Was a claim by advertisement reasonable?  Was the violence used reasonable given the manner in which the defendant was assaulted.

Crooked Hillary dumping on deplorables, Georgia, 2016.

Omnibuses have long been used by politicians for their campaign tours.  They offer lots of advantages, being offices and communications centres with at least some of their running costs offset by a reduction in staff travel expenses.  Additionally, with five large, flat surfaces, they are a rolling billboard although that can be good or bad.  In 2016, one of crooked Hillary Clinton’s campaign buses was photographed in Lawrenceville, Georgia dumping a tank full of human waste onto the street and into a storm drain.  The local news service reported that when police attended the street was “…was covered in toilet paper and the odor was noxious”.  Hazmat crews were called to clean up the scene and the matter was referred to the environmental protection division of Georgia’s Department of Natural Resources.  The Democratic National Committee (DNC) later issued an apology, claiming the incident was “an honest mistake.”  Using the word “honest” in any statement related to crooked Hillary Clinton is always a bit of a gamble and there was no word on whether the dumping of human excrement had been delayed until the bus was somewhere it was thought many deplorables may be living.  If so, that may have been another “honest mistake” because Gwinett County (in which lies Lawrenceville) voted 51.02% Clinton/Kaine & 45.14% Trump/Pence although the symbolism may not have been lost on much of the rest of Georgia; state wide the Republican ticket prevailed 50.38% to 45.29%.

Crooked Hillary Clinton’s campaign buses also attracted memes referencing a crash and a breakdown.  Both were fake news but surprisingly prescient, the Clinton/Kaine ticket securing an absolute majority of votes cast but failing to gain the requisite numbers in the Electoral College because the campaign neglected adequately to target areas in states the DNC regarded either (1) solidly in the possession of their machine or (2) populated by folk from the "basket of deplorables" and thus worthy only of a dumping of shit, figurative and literal.  Like the candidate, the 2016 campaign was something like what was planned for 2008, taken from the cold-room, rechauffed and served with the claim it was fresh.  It wasn't quite that the staff had "learned nothing and forgotten everything" but it does seem the operation was top-heavy with political operatives and lacking in those with a mastery of the techniques of data analysis.  All the evidence suggests there was no lack of data, just an inability to extract from it useful information. 

Before Photoshop imbued all with cynical disbelief, the triple decked omnibus was a popular vehicle for April fool's day pranks, the photograph on the left published in Lisbon on the day in 1951.  The one on the right is from 1926 and was in the German magazine Echo Continental (trade publication of the auto and truck parts manufacturer Continental AG) which "reported" the development of Berlin's new triple-decker city omnibus.  So lovely are the art deco lines, it's a shame it wasn't real.

Puffery

Puffery (pronounced puhf-uh-ree)

(1) Undue or exaggerated praise; inflated laudation; publicity, claims in advertising, acclaim etc, that are exaggerated (also known as the “puff piece”).

(2) In common law jurisdictions (often as “mere puffery), certain claims or assertions made which, even if literally untrue or misleading, are not actionable.

(3) An act of puffing (rare except in humor).

1730–1735: The construct was puff (in the sense of “to praise with exaggeration”) + -ery.  The noun puff was from the early thirteenth century Middle English puf, puffe, puff & puf, from the Old English pyf (a short, quick blast of wind, act of puffing) which was imitative and cognate with the Middle Low German puf & pof.  It was derived from the verb which was from the Middle English puffen, from the Old English pyffan & puffian (to breathe out, blow with the mouth) and similar forms in other European languages included the Dutch puffen, the German Low German puffen, the German puffen, the Danish puffe and the Swedish puffa.  The sense of “to blow with quick, intermittent blasts” was common by the mid-fourteenth century while the meaning “pant, breathe hard and fast” emerged some decades later.  It was used of the “fluffy light pastry" from the late fourteenth century while the “small pad of a downy or flossy texture for applying powder to skin or hair” was first so described in the 1650s.

The meaning “to fill, inflate, or expand with breath or air” dates from the 1530s while the intransitive sense (in reference to small swellings & round protuberances) was noted by 1725.  The transitive figurative sense of “exalt” was known by the 1530s which shifted somewhat by the early eighteenth century into the meaning “praise with self-interest, give undue or servile praise to”, the idea by mid century focused on the figurative sense of “empty or vain boast”, this sense soon extended to mean “flattery & inflated praise”.  The derogatory use of poof for “an effeminate man; a male homosexual” was noted from the 1850s and is presumably from puff (possibly in the sense of “powder puff”, an allusion to the stereotype of their “excessive concern with maintaining a delicate appearance”)) and the extended form “poofter” was early twentieth century Australian slang, an unusual linguistic departure for a dialect which tended either to clip or add a trailing “e”, “y” or “o” sound to words.  The correct spelling for the furniture piece (A low cushioned seat with no back; a padded foot-stool) was pouf, from the French pouf & pouff (again of imitative origin) but, presumably because of confusion caused by the pronunciation, the spellings puff & poof sometimes are used.  The suffix -ery was from the Middle English -erie, from the Anglo-Norman and Old French -erie, a suffix forming abstract nouns.  The suffix first occurs in loan words from the Old French into the Middle English, but became productive in English by the sixteenth century, sometimes as a proper combination of -er with “y” (as in bakery or brewery) but also as a single suffix (such as slavery or machinery).  Puffery is a noun; the noun plural is pufferies.

Mere puffery

In law, the concept of “mere puffery” was created to provide a buffer between the “meaningless” sales pitch and the deceptive or misleading claims which amount to a misrepresentation.  A misrepresentation may be actionable; “mere puffery” is not.  Puffery is used to describe a claim that (1) a “reasonable person” would not take seriously or (2) is so vague or subjective that it can be neither proved nor disproved.  Those two definitions operate in conjunction because even if an assertion can be disproved, if it would be absurd for the “reasonable person” to claim they believed it, it will be held to be “mere puffery”.

Doubling down: Disappointed at losing the case based on their £100 offer, to restore public confidence, they offered £200. 

In contract law, the term “puffery” comes from one of the most celebrated cases in English jurisprudence: Carlill v Carbolic Smoke Ball Company (1892, EWCA Civ 1) before the Court of Appeal.  During the deadly influenza pandemic in the northern winter of 1889-1890, the Carbolic Smoke Ball Company it would pay £100 (equivalent to some £14,000 in 2023) to anyone who became ill with influenza after using their smoke ball in accordance with the instructions enclosed with the product.  Mrs Carlill was concerned enough by the flu to buy a ball which, following the instructions, she used thrice daily for some weeks but nevertheless, caught the flu.  Unable to persuade the company to pay her £100, Mrs Carlill brought an action, in court claiming a contract existed which the company denied.  At first instance, despite being represented by a future prime-minister, the Carbolic Smoke Ball Company lost, a verdict upheld unanimously by the Court of Appeal.  It was a landmark in the development of contract law, refining the long-established principles of (1) offer, (2) acceptance, (3) certainty of terms and (4) payment although it would be decades before the implications would begin comprehensively to be realized in legislation.  Not only did Mrs Carlill secure her £100 but she survived the pandemic, living to the age of ninety-six.  On 10 March 1942, she died after catching influenza.

So, Mrs Carlill, having used the smoke ball three times a day for almost two months before she developed influenza sued for breach of contract and the court held the offer made in the advertisement was not “mere puff” but constituted a valid offer of contract; the Smoke Ball Company’s offer was thus a misrepresentation because, in the particular circumstances detailed, a “reasonable person” would be likely to believe that they would receive £100 and thus, relying on the claim, be persuaded to purchase the product.  However, all the circumstances must be considered on a case-by-case basis and an individual’s simple reliance on a claim they sincerely believe to be true is not sufficient to for something to be held a misrepresentation.

In the famous Red Bull lawsuit in 2013, the court noted the company’s advertising slogan “Red Bull gives you wings” was “mere puffery” in that no reasonable person would believe ingesting even many cans of the stuff would mean they would “grow wings and fly” but the lawsuit claimed that implicit in the slogan was the allegedly deceptive and fraudulent suggestion that the drink was a “superior source of energy”, something not backed up by scientific evidence.   Heard in US District Court for the Southern District of New York, the class action was lodged by someone who had been drinking Red Bull for a decade-odd.  His claim was not that he expected feathers to sprout but that idea drinking Red Bull would increase performance and concentration (as advertised on the company's television, on-line and marketing campaigns) was “deceptive and fraudulent and is therefore actionable”.  The scientific basis for the action was research which found energy drinks gained their “boost” through caffeine alone, not guarana or any other ingredient, adding although there was no academic support for the claim Red Bull provides “any more benefit to a consumer than a cup of coffee, the Red Bull defendants persistently and pervasively market their product as a superior source of ‘energy’ worthy of a premium price over a cup of coffee or other sources of caffeine.”  Red Bull, while denying any wrongdoing or liability and maintaining its “marketing and labeling have always been truthful and accurate”, the company settled the lawsuit “to avoid the cost and distraction of litigation”.  As part of the settlement, anyone resident of the US who claimed to have purchased a can of Red Bull at some time after 1 January 2002 was eligible to receive either a $US10 reimbursement or two free Red Bull products with a retail value of approximately $US15, a webpage created to enable those affected to lodge their claim.  To avoid any similar claims, the company “voluntarily updated its marketing materials and product labeling".

Advertising is often a mix of puffery and specific claims which can be actionable, depending on the circumstances, either in damages or restitution.

So every case is decided on its merits.  A case before the Federal Court in Australia in 2017 held that a false assertion an app had “the most property listings in Sydney” was a misrepresentation because uncontested evidence proved otherwise although the court note were the app to claim it was “the best” app of its kind that would be mere puffery because, in that context, the phrase “the best” means nothing in particular because it’s not something which can be reduced to a metric or precisely defined.  More intriguing for those who like to speculate when grey turns black or white was the Pepsi Points Case which was in many ways similar to Carlill v Carbolic Smoke Ball Company.  PepsiCo’s advertising included a point system which customers could use to redeem prizes and one campaign had offered a military jet fighter (then invoiced by the manufacturers at US$23 million odd) in exchange for 7 million "Pepsi Points" (then worth US$700,000).  Mailing a $700,000 cheque to PepsiCo, a customer asked to collect his jet.  The court held the offer was “mere puffery” on the basis of (1) aspects of the campaign which clearing indicated “its jocular nature”, (2) that no reasonable person would believe a US$23 million jet could be obtained by exchanging US$700,000 and it was (3) anyway impossible for the company to deliver a military fighter jet in operable condition to a civilian customer.  It was an interesting case because it might have been decided differently if the object had been closer in value to the points mentioned and been something there was no legal impediment to supplying (such as a US$1 million car).  Were it a US$143 million car (there is one), the promotion would presumably still be judged puffery but at some point, it must be that the relative values would be close enough to for the “reasonable person” test to apply.  That however is something impossible to reduce to an equation and each case will be decided on its merits.  Just to be sure, PepsiCo bumped up by several orders of magnitude the points required to start one’s own air force up and added some text to make it clear the whole thing was just a joke.

In the matter of Tyrrell’s Crinkly Crisps.  Often packaging & advertising will contain a number of claims, some of which will be mere puffery (even if it’s easy to prove blatantly they’re untrue) while others need to be verifiable:

2 Pack: Not puffery; every pack must contain two packets.  There have been instances when customers have complained they’ve received more than was advertised and paid for but it’s rare.  Usually, such things are treated as “windfalls”.

Vegan: Not puffery; the contents must be vegan (as defined in the regulation of whatever jurisdiction in which they’re sold).

Triple Cooked: Probably puffery because it’s doubtful the term has any legal definition although were it possible to prove the production process is essentially the same as for any other crisp (chip), it might be actionable.  Because “triple” does have a defined value, were it proved the goods were cooked only twice as long as the practice of other manufacturers, that would presumably compel a change of text to “Double Cooked”.

More Crunch: Probably puffery because the measure of such things is so subjective and there is a point at which to increase crunchiness becomes self-defeating because other desired qualities will be lost.

Crinkly Crisps: Not puffery; the crisps must to some extent be crinkly although it might be fun to have a judge explore the margins and tell us how slight a corrugation can be while still being called “crinkly”.

No Artificial Nasties: Not puffery; these packets probably contain artificial ingredients because they’re almost impossible to avoid in the industrial production of food.  What constitutes a “nasty” is however a thing of quantity as well as quality; something millions every day harmlessly (even beneficially) can be a toxic “nasty” in large quantities so what’s included in the packet will be safe as supplied.  If potential “nasties” are found to exist in a quantity above a certain point, it’s actionable.

Gluten Free: Not puffery; unless there is an allowable quantity (ie trace amounts) permitted by regulation, there must be no gluten.

Sea Salt & Vinegar: Not puffery; sea salt is a particular type of salt so it must be used and there must be evidence of the use of vinegar.

165 g Net: Not puffery; each pack must contain 165 g of edible content +/- the small % of production line variation a court would deem acceptable.

Content guide (fat, energy et al): Not puffery; again, what’s claimed must be a reliable indication of the products within whatever small variation is acceptable.

Photograph with giant crisp: Puffery and an example of how the “reasonable person” test works in conjunction with an objective test of truth.  The packs do not contain crisps as large as is represented in the image (indeed, such would be too big even toi fit in the pack) and no reasonable person would believe this is what they’re buying.

Rational

Rational (pronounced rash-nl (U) or rash-uh-nl (non-U))

(1) Agreeable to reason; reasonable; sensible.

(2) Having or exercising reason, sound judgment, or good sense.

(3) Of a person or their personal characteristics, being in or characterized by full possession of one's reason; sane; lucid; healthy or balanced intellectually; exhibiting reasonableness.

(4) Endowed with the faculty of reason; capable of reasoning.

(5) Of or relating to, or constituting reasoning powers.

(6) Proceeding or derived from reason or based on reasoning.

(7) Logically sound; not self-contradictory or otherwise absurd

(8) In mathematics, capable of being expressed exactly by a ratio of two integers or (of a function) capable of being expressed exactly by a ratio of two polynomials.

(9) In chemistry, expressing the type, structure, relations, and reactions of a compound; graphic; said of formulae.

(10) In physics, expressing a physical object.

(11) In the philosophy of science, based on scientific knowledge or theory rather than practical observation.

(12) The breastplate worn by Israelite high priests (historic references only).

1350-1400: From the Old French rationel & rational, from the Middle English racional, from the Late Latin ratiōnālis (of or belonging to reason, rational, reasonable; having a ratio), the construct being ratiōn (stem of ratiō (reason; calculation)) + -ālis.  The –alis suffix was from the primitive Indo-European -li-, which later dissimilated into an early version of –āris and there may be some relationship with hel- (to grow); -ālis (neuter -āle) was the third-declension two-termination suffix and was suffixed to (1) nouns or numerals creating adjectives of relationship and (2) adjectives creating adjectives with an intensified meaning.  The suffix -ālis was added (usually, but not exclusively) to a noun or numeral to form an adjective of relationship to that noun. When suffixed to an existing adjective, the effect was to intensify the adjectival meaning, and often to narrow the semantic field.  If the root word ends in -l or -lis, -āris is generally used instead although because of parallel or subsequent evolutions, both have sometimes been applied (eg līneālis & līneāris).  The use to describe the breastplate worn by Israelite high priests was from the Old French rational, from the Medieval Latin ratiōnāle (a pontifical stole, a pallium, an ornament worn over the chasuble), neuter of the Latin rationalis (rational).  The spelling rationall is obsolete.  Rational is a noun & adjective, rationalizing is a noun & verb, rationalize & rationalized are verbs, rationalism , rationalness & rationalizer are nouns and rationally is an adverb; the noun plural is rationals.  The rarely used adjective hyperrational means literally “extremely rational” and can be used positively or neutrally but it’s applied also negatively, usually as a critique of “economic rationality”.

Rational & irrational numbers illustrated by Math Monks.

In something of a departure from the usual practice in English, “antirational”, “nonrational” & “irrational” (there are hyphenated forms of both) are not necessarily synonymous.  Antirational describes something or someone who is or acts in a way contrary to the rational while arational (often in the form arationality) is a technical term used in philosophy in the sense of “not within the domain of what can be understood or analyzed by reason; not rational, outside the competence of the rules of reason” an applied to matters of faith (religious & secular).  Nonrational (used usually in the hyphenated form) is literally simply the antonym of rational (in most senses) but now appears most often in the language of economics where it’s used of decisions made by actors (individual, collective & corporate) which are contrary to economic self-interest.  Irrational can be used as another antonym but it’s also a “loaded” adjective which carries an association with madness (now called mental illness) while in mathematics (especially the mysterious world of number theory) it’s the specific antonym of the “ration number” and means a “real number unable to be written as the ratio of two integers”, a concept dating from the 1560s.

The adjective rational emerged in the mid-1400s and was was a variant of the late fourteenth century racional (“pertaining to or springing from reason” and of persons “endowed with reason; having the power of reasoning”, from the Old French racionel and directly from the Latin rationalis (of or belonging to reason, reasonable) from ratio (genitive rationis) (reckoning, calculation, reason).  By the 1560s it was picked up in mathematics to mean “expressible in finite terms” before becoming more precisely defined.  The meaning “conformable to the precepts of practical reason” dates from the 1630s.  The adverb rationally was from the same source as ratio and ration; the sense in rational is aligned with that in the related noun reason which got deformed in French.  The noun rationality by the 1620s was used in the sense of “quality of having reason” and by mid-century that had extended to “fact of being agreeable to reason”, from the French rationalité and directly from the Late Latin rationalitas (reasonableness, rationality (the source also for the Spanish racionalidad and the Italian razionalita), from the Latin rationalis (of or belonging to reason, reasonable).  As late as the early fifteenth century racionabilite (the faculty of reason) was in Middle English, from the Latin rationabilitas.

Rational AG's iCombi Pro range: Gas or Electric.

By the 1820s, the noun rationalization was in use in the sense of “a rendering rational, act of subjection to rational tests or principles”, the specific modern sense in psychology in reference to subconscious (to justify behavior to make it seem rational or socially acceptable) adopted by the profession early in the twentieth century.  The verb rationalize (explain in a rational way, make conformable to reason) dates from the mid eighteenth century although the sense familiar in psychology (to give an explanation that conceals true motives) came into use only in the 1920s on the notion of “cause to appear reasonable or socially acceptable” although decades earlier it had been used with the intransitive sense of “think for oneself, employ one's reason as the supreme test”.  The use in psychology endured but “rationalize” also came into use in applied economics with the meaning “to reorganize an industry or other commercial concern to eliminate wasteful processes”.  That seems to have come from US use although the first recorded entry was the Oxford English Dictionary’s (OED) supplementary edition in 1927.  In this context, it became a “vogue word” of the inter-war years of both sides of the Atlantic although it fell from favour after 1945 as the vogue shifted to “integrate”, “tailor”, “streamline” and that favourite of 1970s management consultants: the “agonizing reappraisal”.  However, in the 1980s & 1990s, “rationalize” gained a new popularity in economics and (especially) the boom industry of financial journalism, presumably because the “economic rationalists” coalesced during the Reagan-Thatcher era as the dominant faction in political economy.

Many have their own favourite aspect of Sigmund Freud’s (1856-1939) theories but one concept which infuses mush of his work is the tussle in the human psyche between the rational and irrational.  Freud’s structural model consisted of the three major components: id, ego & superego, the elements interacting and conflicting to shape behavior and personality.  The id was the primitive & instinctual part containing sexual and aggressive drives; operating on the pleasure principle, it seeks seeking immediate gratification and pleasure.  Present even before birth, it’s the source of our most basic desires and in its purest processes is wholly irrational, focused on wants and not the consequences of actions.

Concept of the id, ego & superego by the Psych-Mental Health Hub.

The rational was introduced by the ego, something which developed from the id and was the rational, decision-making part of the mind which balanced the demands of the id and the constraints of reality.  As Freud noted, implicit in this interaction was that the ego repressed the id which obviously was desirable because that’s what enables a civilized society to function but the price to be paid was what he called “surplus repression”.  That was a central idea in Freud's later psychoanalytic theory, exploring the consequences of the repression of innate, instinctual drives beyond that which was necessary for the functioning of society and the individual: the rational took its pound of flesh.  Discussed in Civilization and its Discontents (1930), “primary repression” was essential to allow the individual to adapt to societal norms and function in a civilized society while “surplus repression” was the operation of these forces beyond what is required for that adaptation.  Freud identified this as a source of psychological distress and neurosis.

Lindsay Lohan’s early century lifestyle made her a popular choice as a case-study for students in Psychology 101 classes studying the interaction of the rational and irrational process in the mind.  Most undergraduates probably enjoyed writing these essays more than had they been asked to analyse Richard Nixon (1913-1994; US president 1969-1974), America’s other great exemplar of the struggle.

It was the ego which mediated between the id, the superego, and the external world, making possible realistic and socially acceptable decisions, essentially by making individuals consider the consequences of their actions.  The superego developed last and built a construct of the morality, ethical standards & values internalized from parents, the education system, society and cultural norms; operating on the “morality principle”, the superego one of the “nurture” parts of the “nature vs nurture” equation which would for decades be such an important part of research in psychology.

Frivol

Frivol (pronounced friv-uhl)

(1) An unserious person.

(2) An idle diversion or pastime; a frivolity.

(3) To behave frivolously; to trifle; to squander time; to waste on frivolous pursuits (historically followed by away).

(4) To spend money frivolously (historically followed by away).

1865–1870: A back formation from frivolous, from the French frivole, from the Latin frīvolus (trifling, worthless).  The word exists in Romanian where it’s used in the same sense as in English but in German there’s been a meaning shift and it’s now an adjective meaning saucy; sleazy; ribald (sexual in a frivolous way), the comparative being frivoler and the superlative am frivolsten (in the matter of frivolous sex, the Germans have grades).  The adjective frivolous emerged in the mid-fifteenth century, from the Latin frivolus (silly, empty, trifling, worthless), a diminutive of frivos (broken, crumbled), from friare (break, rub away, crumble).  In courts of law, frivolous was in use by the mid- 1730s to describe arguments (or entire cases) as “so clearly insufficient as to need no argument to show its weakness”.  The related forms were the adverb frivolously and the nouns frivolousness & frivolity.  Dating from the 1790s, frivolity was from the French frivolité, from the Old French frivole (frivolous), from the Latin frivolus.  Frivol is a noun & verb, frivoler (also frivoller) is a noun, frivoled (also frivolled) & frivoling (also frivolled) are verbs; the noun plural is frivols.  Frivol is all contexts is now rare (some sources suggest it is extinct) which is interesting because in English there’s usually a tendency for a short form to prevail over the long; for whatever reason frivolous & frivolity flourished and frivol floundered.

Of the frivolous and the vexatious

In legal proceedings, “frivolous” & “vexatious” are terms used to describe certain classes of argument or even an entire case.  An action or claim is labeled frivolous when it self-evidently lacks any merit or basis in law and has no reasonable prospect of success.  An action or a litigant is labeled as vexatious when they engage in persistent, repetitive, or burdensome litigation, often with the primary goal of annoying, harassing, or frustrating the opposing party.  Like the frivolous, a vexatious action is often one with little prospect of success but is characterized by a pattern of behavior rather than the lack of merit in a specific claim and the phrase “abuse of process” is often used in conjunction with “vexatious”.  If a litigant is found repeatedly to commence such actions, courts sometimes declare them a “vexatious litigant” and intervene to prevent them filing new suits without the permission of the court.  The terms “serial litigant” is also sometime used in this context but the courts will not move against a party simply on the basis of the frequency with which actions are brought; provided a actions are on sound legal grounds and have a reasonable prospect of success, as a general principle, there is no limit on their number.

Courts do act more harshly against the vexatious than the frivolous because the former (often involving the legal system in repetitive and burdensome litigation) are being used as a weapon, sometimes as devices to harass or annoy and sometimes as a way of attempting to cause the other party to have to spend so much in legal fees that they will discontinue the case.  Each matter is dealt with on its merits but courts can impose sanctions on both litigants and counsel; it’s not unusual for litigants declared vexatious to be self-represented because no lawyer will agree to run the action.  Although there can be nuances, a case is frivolous if it has no reasonable chance of succeeding, and is vexatious if the court finds it would be unreasonable to ask the other party to defend the matter.  Lindsay Lohan went through a “serial litigant” phase and the makers of GTA were not the only plaintiffs to suggest she was running frivolous cases, the accusation usually that the legal proceedings were being commenced only to seek publicity:

Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Agreeing with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey wrote in his ruling.  Lindsay Lohan’s lawyers did not seek leave to appeal.

Lindsay Lohan v E-Trade Securities LLC, New York State Supreme Court, Nassau County, No. 004579/2010

In 2010, one of Lindsay Lohan’s more unusual forays into litigation was settled prior to reaching trial.  In the Supreme Court of New York, Ms Lohan had filed suit for US$100 million against online investment site E-Trade, in connection with their Super Bowl ad featuring a "milkaholic" baby girl named Lindsay.  The claim was based on the allegation the commercial was mocking her on the basis of some drug and alcohol related matters which had involved the police, saying the work additionally improperly invoked her “likeness, name, characterization, and personality” without permission, violating her right of privacy.  In the statement of claim, the actress sought US$50 million in compensatory damages and US$50 million in exemplary damages as well as demanding E-Trade cease and desist running the commercial and turn over all copies to her.  One interesting technical legal point raised was that Ms Lohan enjoyed the same “single-name” recognition as celebrities such as talk-show host Oprah (Winfrey) or the singer Madonna (Ciccone).

The E-Trade commercial had been broadcast during the Super Bowl on 7 February 2010 as part of a series built around the theme “babies who play the markets”, and attracted an audience of around 106 ½ million viewers in the US market, then a record number.  E-Trade filed a statement of defense in which it said the claims were “without merit”, and that Lindsay Lohan wasn’t the world's only Lindsay, noting Lindsay was in 2008 the 380th most popular name for new-born American girls, down somewhat from 241th in 2004 when Mean Girls was released.  Grey Group, the advertising agency which produced the commercial later added the “milkaholic Lindsay” was named after a member of its account team although this apparently wasn’t added to the statement of defense.  The plaintiffs did raise the matter of dismissal as frivolous but the judge said the matters raised were "potentially legally substantive" and allowed the case to proceed.  After some months, a settlement was reached between the parties, both sides bound by a non-disclosure agreement (NDA).

Pitbull (Armando Christian Pérez, b 1981).

Another of Lindsay Lohan's forays into litigation did however give a judge the opportunity to discuss the parameters a court works with when deciding whether an argument can be ruled "frivolous".  In 2011 she sued hip hop artist Pitbull over the lyrics in his song Give Me Everything, which included the line: So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.  Ms Lohan cited the lyric as a violation of her publicity and publicity rights which caused her emotional distress, claiming the lyrics “includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to her physical and mental character.”  The judge dismissed on technical grounds the claim made under New York Civil Rights law, adding that the First Amendment anyway affords full protection.  What was more interesting was the discussion of the argument the song was commercial rather than expressive in nature, the judge ruling that even if the work was created for the purpose of “making a profit”, that does not mean her name was “used for advertising or purposes of trade within the meaning of the New York law“ and that, on the facts of this case, even if that were proved, the “isolated nature of the use of her name” (just one line in the song) would “prove fatal” to the claims.  Putbull’s counsel indicated they wished to have the court sanction Ms Lohan for filing a frivolous lawsuit (an abuse of process) but the judge, noting the paucity of case law in this field, said the lack of precedent meant there was no clear indication the case would be doomed and the claim was therefore not so frivolous as to warrant the imposition of a sanction.  Lindsay Lohan thus remained free to litigate, which she did.