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Monday, September 29, 2003

Column: Name That Law

If you’ve ever tried to buy a bottle of wine on a Sunday, then you know that New Yorkers suffer under the yoke of a Blue Law, that is, a law prohibiting certain types of retail activity on the seventh day.

You may call such laws many names – inconvenient, archaic, and obsolete come to mind – but what on earth is blue about them?

In fact, so many of our laws have funny names, one could spend all day pondering their origins (trust me). No sooner have we got past Blue Laws than we come across Blue Sky Laws, a seemingly nonsensical name for state securities laws. Beyond that, we have Antitrust laws to protect competition, Lemon Laws to protect consumers and Megan’s Law to protect children.

Blue, Blue Law

But to get back to wine, why should the ancient Puritan laws protecting the Christian Sabbath be called “blue?”

A popular theory has it that Blue Laws got their name from the blue paper on which they were originally printed. This has all the advantages of a good theory: it’s brief, tidy, and sensible. The only problem is that there is absolutely no evidence that such laws were ever printed on blue paper.

More likely, the term Blue Law derives from the 18th century slang term “blue,” referring to strict moral codes and those who observed them (hence the colloquial “bluenose” for a puritanical person). The Reverend Samuel Peters was the first to speak of “blue laws” in his 1781 book, General History of Connecticut. Peters does not attribute the phrase, and it seems most likely that he coined it himself.

Blue is also the color of the Blue Sky Laws, which sound like an overly optimistic meteorological regulation (and while we’re at it, can we have a “Sunny Weekend Law?”). Blue Sky Laws, of course, are the securities laws and regulations of the individual states. The term was made popular by the Supreme Court case of Hall v. Geiger-Jones Co. in which Justice McKenna described such laws as targeting “speculative schemes which have no more basis than so many feet of ‘blue sky.’” Although Justice McKenna claimed that he was borrowing the phrase from an earlier case, he did not provide a citation, and so, ends up getting the credit for the term.

Strange Names

American history is full of strange-sounding laws. There were the infamous Jim Crow laws passed by Southern legislatures after the Civil War. These segregation measures took their name from a recurring character in early 19th Century “minstrel shows,” in which white actors would apply black cork to their faces and perform song-and-dance routines.

At the same time that the Jim Crow laws were being enacted in the South, the Midwestern legislatures were passing railroad regulations known as the Granger Laws. These laws did not get their name, as one might expect, from a Mr. Granger, but rather from “the Grangers,” a farming organization that was once one of the most powerful lobbies in American politics.

Even the thoroughly modern subject of Antitrust law has a quaint name, when you think about it. Antitrust – which in other countries goes by the more straightforward term “Competition Law” – takes its name from the late 19th century suspicion of conglomerates known as “trusts,” a form of business organization that was long ago superseded by holding companies and other devices.

When Congress Gets Into The Act

Where do laws get their names? Usually from Congress, or the state legislatures, as the case may be.

In Washington, a new law passed by Congress is given a session number, beginning with “P.L.” or “Public Law.” A law called “P.L. 102-89,” for example, would be the 89th law passed by the 102nd session of Congress. The session laws are then codified to fit into the existing scheme of federal laws, and will be included in the United States Code. The Code provides the name for laws that are most familiar to lawyers, such as 11 U.S.C. § 540.

As much as lawyers love the precision of Code sections, politicians don’t (somehow “Reelect Smith, co-sponsor of 27 U.S.C. § 8471” just doesn’t sound right). Thus, every law also has a popular name so that Congress can sell it to the public.

Having said that, a quick glance at the Popular Name Table of the U.S. Code shows that Congress has a distinctly tin ear when it comes to naming statutes. The Healthy Meals for Healthy Americans Act, for example, sounds like a scheme to withhold food from sick people. Meanwhile, a law to regulate tobacco – crying out for something snappy like “the Clean Lungs Act” – is given the dreary title of Tobacco Control Act. In the hands of our representatives, cars, trucks, and trains become Surface Transportation (yawn!).

A number of supposedly “popular” names have a mind-boggling specificity. For example, the Adjustment to Lawful Resident Status of Certain Nationals of Countries for Which Extended Voluntary Departure Has Been Made Available Act appears to have been written for one guy. And to the non-lawyer, the Uniform Simultaneous Death Act has the ring of something that lawmakers dreamed up one Friday afternoon as a practical joke.

State legislators often do a better job than congressmen with popular names. What could be better for protecting consumers against shoddy cars than a lemon law? All 50 states have lemon laws, it’s a catchy name, and easy to figure out. A more difficult question is how the word “lemon” came to represent defective goods in the first place. One theory has it that lemons were frequently left rotting in markets; another that in slot machines, three lemons in a row yields no money; a third, simply, that lemons are sour.

Often, lawmakers will take the easy way out by giving a law a name that people just can’t disagree with, say “the Consolidated Motherhood and Apple Pie Act.” Names like that abound: the Animal Welfare Act, the Economic Recovery Act, and the Child Protection Act, to name a few. Who could be against those things?

But then, standards do change and some names that might have been successful at an earlier time sound like real clunkers today. It is rather arresting to go through the statute book and see names whose popular appeal are lost on today’s reader. When, for example, was the Anti-Beer Act a vote getter? The Atomic Weapons Rewards Act of 1955 has a certain Cold War charm that is difficult to conjure up now (although one wonders what the rewards were).

Criminals and Victims

Another method for labeling a statute – and one that is currently in vogue – is to name it after a victim of the crime to be prevented by the law. Take “Megan’s Law,” a state statute that requires a public notice whenever a convicted sex offender moves into a neighborhood. The law is named for Megan Kanka, a girl who was murdered at age seven by a convicted sex offender. In New York, we have Christopher’s Law, Jenna’s Law, Elisa’s Law, and Lee-Anne’s Law, and probably more. At the federal level, the Brady Handgun Violence Prevention Act is named for James Brady, the White House Press Secretary left paralyzed by an assassin’s bullet.

You wouldn’t think that lawmakers would commemorate the perpetrator of a crime, but there is at least one example: the Son of Sam law, which requires that convicted criminals give all money earned from book, movie or other deals to their victims or the state. The first such law was passed in New York in response to serial killer David Berkowitz (aka “Son of Sam”), who sought to sell his story. Since then, the legislatures of some 40 states have enacted similar laws. Ultimately, however, all that work was for naught, since the Supreme Court later struck down the Son of Sam law on First Amendment grounds, which just goes to show that anything that can go wrong will go wrong – otherwise known as Murphy’s Law.

(This column first appeared in the September 2003 issue of New York Law Journal Magazine)