I'm trying to figure out if it's a word I've never heard of or a typo.
Judge Tashima writes an opinion and cites to a dissent by Judge Kozinski in an earlier case. Which he labels: "(Kozinski, C.J., dissental)."
When I read this, I assumed it was a typo. That Judge Tashima meant "dissenting". Or something like that.
Though then I noticed that Judge Kozinski was actually on the panel. And there's a dissent (by Judge Ikuta) as well. So this is presumably an opinion that received some degree of review. Doesn't anyone actually read these things? It's not like a brand new word wouldn't stand out.
Which then led me to think: "Am I just uninformed?" To which the answer, obviously, is: "Yes. Completely." But not necessarily on this point.
So I do what anyone would do in the modern era. I google the thing. Nope. No "dissental". Or at least none by anyone who knows how to spell.
But then I check out Westlaw. No one's used the word "dissental" in the previous history of the Ninth Circuit. But lo and behold, I find a 1961 opinion by the Montana Supreme Court. In which Justice Doyle begins his concurrence with the line: "One of my bretheran has dissental and another concurred specially in the cause."
It seems to me, again, that Justice Doyle must have meant "dissented". But this was back in the days when we typed things by hand and actually reviewed the stuff. And it's the first line of the concurrence. Surely people read that, no? Does that mean that some fancy people, like Justice Doyle and the panel here, know something I don't know? Maybe.
I still think "dissental" isn't a word. But what do I know?
Upon consideration, I'm thinking it might be fun to try to work in nonexistent words into judicial opinions. "Cromulent" and "embiggen" are possibilities, clearly, but too obvious. Something that sounds right. I was thinking something like "formulata" -- a word I just made up off the top of my head. But turns out that's actually an Esperanto word. Though now I'll just revise the game. Put in as many Esperanto words into opinions as you can fit.
I'm figuring this Judge Kozinski's clerks, at a minimum, are up to the task. Goodness knows law clerks don't have enough to do already.
So "dissental". Myth or legend? History will be the judge.
POSTSCRIPT - History still gets to be the judge, but here's the scoop, from a reader in the know: "'Dissental' was coined by the Chief Judge at some point in the past several years. He uses it only to describe dissents from denial of rehearing en banc ("dissent" + "denial" = "dissental"). It's caught on with a lot of other judges as an easy way of referring to those dispositions without having to say 'dissent from denial of rehearing' every time."
Personally, I might have used "dissential", but to each his own. Still, funny that the term's not in anywhere in the intertube. (Until now, that is.) And that it was allegedly presaged back in '61.
History, do your work.
POST-POSTSCRIPT: Lots of insiders have sent me e-mails commenting on the alleged value (or lack thereof) of Judge Kozinski's new word -- alongside the related term "concurral". Those who like it support its brevity and easy of reference. Those who don't, well, here's a representative snippet: "'Dissental' is simply not a word. It has not caught on with those who care about the English language. That of course does not include all jurists, even those on the Ninth Circuit."
The judgment about whether "dissental" will eventually make it into the OED clearly isn't merely limited to history, but instead involves an ongoing controversy. We'll check back in a couple decades to see how it's worked out.
