The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

"Way overstates," in a Supreme Court opinion


Washington, DC - June 28: US Supreme Court nominee Elena Kagan is sworn inn before giving her opening statement to the Senate Judiciary Committee on Capitol Hill Monday June 28, 2010. (Photo by Melina Mara/The Washington Post) StaffPhoto imported to Merlin on Mon Jun 28 17:15:02 2010
FILE: Supreme Court Justice Elena Kagan (Photo by Melina Mara/The Washington Post)

From today's majority opinion, by Justice Kagan, in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund:

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

This is the first occurrence of "way overstates" in a published American court opinion, and likely one of the few to use "way" to modify a verb more generally (though that's hard to search for). Can any of you think of some earlier examples? I've seen cases using "way off" and "way out," but "way" followed immediately by a verb—which strikes me as somewhat more colloquial than "way off" and "way out"—seems rarer to me.

I am not faulting the opinion for the colloquialism; I think it's just fine, and in keeping with Justice Kagan's style. (Some may even see it as way cool.) But I thought it was worth noting.

UPDATE: I at first suggested that this might be the first use of "way" in a court opinion to modify a verb more generally, but commenters pointed me to some earlier sources; the earliest I've seen so far is Grider v. Abramson, a 1998 federal district court decision containing the line, "One may fairly ask, does not complete absence of trouble at the rallies suggest that Defendants way overreacted." (A 1992 federal district court opinion uses "'way' improvident," but the scare quotes put it in a different category, I think.)