SCOTUS and the Adverbial “Way”

Lowering the Bar is one of my favorite blogs. But since it deals primarily with legal humor, I don’t mention it much.

Yesterday, however, Kevin Underhill, the blogger and lawyer, posted a review of the history of the adverbial way in legal opinions. In a recent opinion, Justice Kagan wrote:

Moreover, Omnicare way overstates both the looseness of the inquiry Congress has mandated and the breadth of liability that approach threatens.

Underhill points out that this is not is not the first time Kagan has used the word in a Supreme Court opinion. Back in 2013 she wrote:

Amex has put Italian Colors to this choice: Spend way, way, way more money than your claim is worth, or relinquish your Sherman Act rights.

Lower courts have used way in this fashion since 1998, or 1992 if you count cases where the way was placed in quotation marks. And the OED records it in general usage back as far as 1941.

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